- (1.) THIS is an application by the defendants, in a suit pending in the Court of the Munsif City, Jodhpur, for revising the order of the learned Munsif, by which he placed the burden of an issue on the defendants. The suit was brought against them by the non-applicant Hasti Mal for the recovery of Rs. 1076/7/- on the basis of a document alleged to have been executed by the defendants on 1. 2. 48 in favour of the plaintiff. The defendants denied the execution, as well as the receipt of the consideration but made an allegation in their written statement that on 16. 12. 47 one Madan Singh, the brother of the plaintiff, under pretence of giving contracts for preparing to far obtained their signatures on two blank papers and that they believe that the 'chitthi' in suit was forged on one of these two blank papers. On 10. 4. 1950, the learned Munsif framed the necessary issues in the case, and placed the burden of proving the execution of the 'chitthi' on the plaintiff. On 2. 5. 1950, an application was presented by the plaintiff for the amendment of issue No. 1, with the prayer that the burden should be placed on the defendants, and that they should be called upon to prove the fact that their signatures were obtained on two blank papers, and 'chitthi' in suit was prepared on one of them. The learned Munsif accepted the application on 5. 8. 50, and placed the burden on the defendants framing the following issue : - "were the signatures of the defendants obtained by fraud on two blank papers by Madan Singh, the brother of the plaintiff, and was the bond in suit forged on one of those papers, and in reality no consideration was given to the defendants?"
(2.) AGGRIEVED by this amendment, the defendants have invoked the revi-sional powers of this Court. The learned counsel for the defendants-applicants has strenuously contended before me that the learned Munsif was wrong in placing the burden of the issue on the defendants. There seems to be much force in the arguments of the learned counsel for the applicants, but the difficulty that arises in his way is that of s. 115 of the Civil Procedure Code. The case is still pending in the lower court and has not proceeded a step further than the stage of framing issues. The question whether the revision is permissible under the provisions of s. 115 C. P. C. Section 115 C. P. C. runs as follows: - S. 115: - Revision: "the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears: (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the ease as it thinks fit. " The learned counsel for the applicants has argued before me, that wrong allocation of the burden of proof is a good ground for revision. This is right that the wrong allocation of the burden of proof constitutes a material irregularity and justifies interference of this Court in revision but at what stage? The discretionary powers given to the High Court under S. 115 of the Civil Procedure Code to call for the record of any case are to be exercised only in those cases which have been decided in the lower court and in which no appeal lies. A court, framing issues in a case, or granting amendment thereof, cannot be said to have decided the case. It will be after the final' decision of the case that the wrong allocation of the burden of proof will afford a good ground for the interference of the High Court in revision. Even at that stage, if the High Court sees, that on account of the wrong allocation of the burden of proof, no injustice has taken place and none of the parties has been mislead and precluded from placing the whole of its evidence before the court, it will not interfere. In the present case, that stage has yet to be reached. If we begin to encourage revisions at this stage, which according to law, we cannot do, there will be no end of revisional applications. In every ease, there Will be a, revision application and much of the time of this Court will be taken away in framing the issues. The learned counsel for the applicants has referred me to A. I. R. 1923 Madras 697, A. I. R. 1939 Lahore 563, 64 I. C. 91,82 I. 0. 658, 1938 M. L. R. 113, 1940 M. L. R. 249, and A. F. R. 1936 Madras 784. I have gone through ail these rulings and see that none of them support the case of the applicants. In A I. E. 1923 Madras 607, the point was altogether a different one. In that suit, which was for the rendition of accounts of the profits of pro-perties in the possession of the defendants, the lower court deviated from the usual course of procedure, and taking a wrong view of S. 163 of the Evidence Act, atonce called upon the plaintiffs to adduce evidence about the genuineness or otherwise of the accounts, which were produced by the defendants in response to their petition for discovery and the genuineness of which was not admitted by them. This deviation from the usual course, which was sure to result in the unnecessary harassment of the plaintiff an 1 which was repugnant to all principles of burden of proof, was considered by the learned Judges of Madras High Court to be a good ground for interference in revision, in a pending trial, otherwise they were altogether unwilling to interfere in such cases as it appears Lorn their following observation made on page 608: - "we are ofcourse unwilling in revision to interfere with an order passed by the lower court in a pending case and we should not do so in the present case, if it was not possible to isolate the point on which our interference is asked for. " A. I. R. 1939 Lah. 563, is not a case of revision, but of second appeal, in which it was held that if necessary issues in the case have not been tried, the appellate court, under the provisions of S. 151, has an inherent power to frame such issues and remand the suit to the trial court for retrial on necessary issues. In 64 1. C. 91, the revision was entertained on account of the wrong allocation of burden of proof, but it was entertained when the case was finally decided and a decree passed by the lower court. Similar were she cases m 82 I. C. 658 and 1940 M. L. R. 249. A. I. R. 1935 Madras 784, and 1938 M. L. R. 113 are two S. B. rulings which really support the case of the applicants. In both of these cases, the learned Judges interfered with the orders of the lower courts, while the trials were still pending in those courts and the cases were not yet decided. In 1935 Madras 784, the reason given for the interference was that the matter was one of considerable importance to companies. With all respect to the opinion of the learned Judge I do not agree with him in the respect that in matters of importance the High Court can interfere and in others not. Law is the same for all sorts of matters. In 1938 M. L. R. 113, the learned Judge of Jodhpur Chief Court, Mr. Sukhdeo Narain, did not give any reason for his interference at this stage. Perhaps the point was not seriously and strenuously agitated before him. Whatever may be the cause, the view that interlocutory orders in pending trials can be interfered with by this court on the revisional side, is not acceptable to me, and therefore, I dismiss the application with costs. .;