- (1.) M/s. Soni Woollen & Knitting Mills, Ludhiana, filed a suit for the recovery of Rs. 42,647/- against the New Bank of India Ltd., Ludhiana and M/s. National Transport Co., Bombay. In that suit, one of the pleas taken by the plaintiff in paragraph 12 of the plaint was :- "That the plaintiff's representative, before taking delivery from defendant saw the condition of the goods before its removal from their godown and he found to his great surprise that the Boras of Nylon waste belonging to the plaintiff had been replaced with the boras of some inferior quality of wool waste;" The petitioner, who was defendant 2, in his written statement denied these allegations of the plaintiff. The learned trial Court thereupon framed the following issue on May 18, 1973. "Whether defendant 2 has replaced the Nylon waste goods by woollen waste, as alleged ?" The plaintiff filed an application under Order XIV, rule 5, Code of Civil Procedure, for recasting that issue on September 20, 1973. After hearing the parties, the learned trial Court opined that :- "from the documents of parties I find that Nylon waste was despatched by the plaintiff and delivery of the same was taken by defendant 2. It is denied by defendant 2 that he has replaced these goods by woollen waste. So onus to prove this denial must be placed on defendant 2 and accordingly issue No. 4 is recast as under :- "Whether defendant 2 has not related Nylon Waste goods despatched by plaintiff by woollen waste ?" Against this order the present petition has been filed. The plaintiff- respondent although served for an actual date, has not chosen to appear either in person or through counsel. This petition has, therefore, been heard ex- parte against him.
(2.) The issues are framed on the pleadings of the parties and the onus once placed is not changed during the trial of the suit on the basis of the documents which are brought on the record. It has not been stated by the learned trial Court that the issue originally framed was not according to the pleadings of the parties. It was only on the basis of the documents which were brought on the record that the learned trial Court formed an opinion that it had been proved that the plaintiff had despatched Nylon waste goods. That was not the stage to recast the issue and change the onus of proof. The learned trial Court acted illegally and with material irregularity in the exercise of its jurisdiction in passing the impugned order. I accordingly set aside that order and restore issue No. 4 as originally framed. Since there is no appearance on behalf of the plaintiff-respondent, I make no order as to costs. Petition accepted.;