- (1.) THIS is a Civil Revision application against the judgment of the District Judge, Sikar, dated the 13th December, 1951, reversing, on appeal, the judgment and decree of the court of Munsif, Neem ka Thana, dated the 18th August 1951.
(2.) THE facts of the case are that Nathuram son of Bhudaram filed a suit against Balu on the 26th of October 1950 for an amount of Rs. 153/- being the balance of the price of goods sold by the plaintiff to the defendant. It was alleged that the plaintiff sold 3 maunds and 32 seers of Ghee to the defen-dant at the rate of Rs. 80/- per maund on 18th February 1950 and an amount of Rs. 150/-was paid by the defendant towards the amount of the pride leaving a balance of Rs. 141/- which remained unpaid and which was agreed to be paid within a week after the delivery of the goods THE defendant admitted the transaction of sale of ghee to him by the plaintiff but pleaded that he had paid the entire amount of the price and nothing remained to be paid. Both parties went into evidence on the point of payment of full price of ghee purchased by the defendant from the plaintiff and the learned Munsif after trying the case dismissed the suit on the 18th of August 1951, holding that the plaintiff had failed to establish his case that any amount of price remained due against the defendant. On appeal, by the plaintiff, the District Judge, Slkar;on the 13th of December 1951 found in favour of the plaintiff that he had proved that only Rs. 150/- had been paid to him by the defendant on account of the price of ghee and that a balance of Rs 141/2/- remained outstanding against the defendant. It was also held that the trial court was wrong in placing the burden of proof on the plaintiff when it should have been pieced on the defendant. A decree for Rs. 153/- with costs was granted in favour of the plaintiff. The defendant has come to this Court in revision and the following points have been urged on his behalf: - (1) The lower appellate court acted with material irregularity in not allowing an opportunity to the defendant to produce his evidence in full as regards fact of payment of the full amount of price of ghee to the plaintiff when learned Judge had shifted the onus of proof of this issue from the plaintiff to (he defendant One witness who was with the defendant at the time of the payment of price was not produced on behalf of the defendant because the onus of proof had been put by the trial court on the plaintiff. The defendant should have been allow an opprtunity to produce his full evidence after the court changed the onus of proof. (2) The lower appellate court ignored the practice of not interfering with the finding of the trial court because that court has an additional advantage of studying the demeanour of the witnesses that were produced before it. The judgment of the Supreme Court in Sarjuprasad Ramdeo Sahu vs. Jwaleshwari Pratap Narain Singh (1) has been cited in support of this point. On the first point Mr. Rastogi has referred to the following observations of this Court in Nagori Ibrahim vs. Shahji Babumal (2): - "we are of opinion that wrong allocation of burden of proof is likely to result in prejudice to the party on whom the burden is wrongly put and is therefore likely to affect the decision of the suit on the merits. " "the argument on behalf of the applicants therefore is that the appellate court may come to the conclusion that both side had produced the entire evidence and burden of proof was immaterial and the applicants would in such a case be seriously prejudiced. It is not contended however that the appellate court cannot interfere in a case where burden of proof has been wrongly placed. If, for example, burden of proof is worng-ly placed in case and the party has, therefore, been misled and has not led sufficient evidence the appellate court comes to the conclusion that burden of proof was wrongly placed, it will always give another chance to the party which was prejudiced to produce more evidence by an order of remand. Further, suppose that the burden of proof was wrongly placed and the court decided the matter against the party on whom the burden was wrongly placed on the ground of onus. In such a case also the appellate court would have every right to judge the evidence after placing the burden on the right person and give relief. " It is contended by Mr. Rastogi that, as has been observed in the decision of the case referred to above, that a court will always give another chance to the party which was prejudiced to produce more evidence on account of wrong allocation of the burden of proof, the lower court should have allowed his client an opportunity to lead full evidence on the main issue for payment of price before giving its own finding thereon and the failure of the court below to do so amounted to a material irregularity calling for an interference by this Court in the exercise of its powers of revision under sec. 115 the Code of Civil Procedure. Mr. Bhargava on behalf of the opposite party has urged that there is nothing to show that the defendant was misled in any way in the matter of the production of his evidence and the defendant therefore could not claim a further opportunity to lead his evidence when he had already done so in the trial court. A number of cases have been cited by Mr. Bhargava in support of his contention. He has referred to the case of Ladharam vs. Jinda Ram (3) in which it has been observed that where the defendants led evidence on the issue as to notice they cannot be said to have held back their evidence because of the imposition of the onus on the other side. Mr. Rastogi replied with reference to Ladharam's case that subsequently Lahore High Court changed its opinion which is expressed in Jagdish Ram vs. Mukandlal (4) wherein it has been observed that the rule that where parties had led evidence on a particular issue, the wrong allocation of the burden of proof does not entitle the party on whom the burden of proof is subsequently placed to claim a remand cannot be held to be inflexible and its appli-cabiiity must depend upon the facts of each particular case, the nature of the point involved and the evidence produced by both parties. The learned Judge further observes that there may be cases where the person on whom the burden of proof lay gave evidence in support of his allegations which on the face of it is of no value and the other party did not consider it necessary to take up the time of Court by producing the whole of the evidence which he could produce to rebate the allegations of the other side. It may be noted that on a close scrutiny it would be found that the two cases noted above lay down the same principle that ordinarily when both parties had led their evidence shifting of burden of proof from one to the other does not make it necessary for the Court to allow further opportunity to the party on whom the burden of proof is then placed to lead further evidence, but when the circumstances of the case are such that the wrong allocation of burden of proof had misled a party in leading its entire evidence, the court has to allow a further opportunity to the party on whom the burden of proof is then placed to lead its full evidence. The proposition which has been accepted in the case of Nagori Ibrahim vs. Shahji Babumal is also to the same effect. It has been expressly provided in the judgment of that case that where a party has been misled on account of wrong allocation of burden of proof and has not led sufficient evidence the appellate court will always give another chance to the party to lead its evidence if it comes to the conclusion that burden of proof was wrongly placed. Mr. Rastogi fails to read the observations in full regarding the circumstances when a court is to afford further opportunity for leading evidence when he bases his arguments on these cases. The judgments, if read carefully, do not really support the contention put forth by the learned counsel of the petitioner. The decisions in Chandra Kunwar vs. Chaudhri Narpatsingh (5); Krishnakisor De vs. Shrimati Nagendrabala Chowdhurani (6); Satiprasad Garga vs. Gobinda Chandra Shee (7) and Trimbakdas vs. Mst. Mathabai (8) which have been cited by Mr Bhargava also support the position which has been discussed above. It is abundantly clear that when both parties have led their evidence after fully knowing each other's case it cannot be. ordinarily presumed that a party kept back some evidence which it could have led; but there may be cases where a party may not choose to lead its entire evidence if it knows that the party on whom the burden lay has on the face of it not discharged its onus or when there may be similar other circumstances to justify an inference that a party was misled on account of the wrong allocation of the burden of proof in producing its evidence. In such cases an appellate court will always allow a further opportunity to the party on whom the burden is then placed to lead its full evidence and to the opposite party to rebut it. In the present case Mr. Rastogi has not been able to show any circumstances in support of his contention that the defendant was misled in the matter of production of his evidence. The mere fact that one witness who could have been produced by the defendant and was not produced, cannot help the case of the defendant in order to show that he was misled. Under these circumstances, the defendant had no reason to expect a further opportunity by the lower appellate court to lead further evidence in support of his case and on this ground no interference in the judgment of the lower court is called for in exercise of this court's revisi-onal powers. Coming to the next point, it may be observed that the lower appellate court's decision was final on questions of fact and that court had jurisdiction to come to a different finding than the one at which the trial court arrived. It cannot be said on behalf of the petitioner that the lower court had no jurisdiction to come to different findings of fact on the basis of oral evidence produced before the first court than those at which the first court arrived. It is true that the first court had the advantage of noticing the demeanour of the witnesses but in so far as the reasoning for accepting or rejecting the evidence of a particular witness is concerned, both, the trial court and the appellate court are placed in the same position. The lower appellate court could examine the reasons for not believing the evidence of certain witnesses contained in the judgment of the first court and to come to its own finding on the reasons which might weigh with it. In the present case the first court disbelieved the witnesses of the plaintiff mostly on the ground that on a memo prepared at the time of the transaction signature or the thumb mark of the purchaser was not obtained. This circumstance in the opinion of the lower appellate court was not sufficient to discredit the testimony of the witnesses who were present on the scene. The other circumstance which has been given by the first court for discrediting the plaintiff's witnesses is relating to certain discrepancies about the time certain witnesses came on the spot. The time when these witnesses came is not very material because their presence at the time of the payment of the price which is the fact in issue in this case is not denied by any one of the witnesses of both the parties. At what time they actually came, so long as they came on spot before the time for the payment of price, is not very material. These circumstances alone could not be considered sufficient to disbelieve the witnesses produced by the plaintiff. The lower appellate court also examined the evidence produced by the defendant and as the defendant's witnesses failed to give full details of the transaction their evidence was not believed by that court. Under these circumstances it cannot be said that the lower court acted with material irregularity in appre-cating the evidence of the witnesses on the record of the case. The petitioner has failed to make out a good case for interference in the finding of the lower appellate court on a question which is purely a question of fact. This revision petition fails and is dismissed with costs. . ;