- (1.) THESE are six revision applications under section 115 C. P. C. filed against the orders of the District Judge, Churu dated February 17, 1978 All these revision applications have been heard together and since common questions are involved, I propose to decide all these revision applications by a single order. Ram Kumar, who is the petitioner in all these revision applications, is the defendant in the suits. Six suits were instituted against him by (i) Shri Basesar Lal, (ii) Ram Kumar, (iii) Govind Prasad, (iv) Radhey Shyam, (v) Pawan Kumar, and (vi) Deokinandan. They were registered as Civil Suits Nos. 43 of 1977 to 48 of 1977 in the court of the Additional District Judge, Churu. The details of all these suits, referred to above, are as under: ******
(2.) SUIT No. 44 of 1977 relates to the pronote dated March 18, 1972 for Rs. 5,300/- and a Rukka dated March 18, 1972 for Rs. 9,000/ -. Other suits were based on five Rukkas dated March 19, 1972; March 18, 1972; March 27, 1972; March 27, 1972 and March 21, 1972. The case of the plaintiff?, as disclosed in their respective plaints, was that the defendant had taken loans of the amount mentioned in each of the Rukkas. It has further been stated that the defendant orally agreed to pay interest @ 1% per mensem. It has also been averred that the defendant failed to repay the loans despite several demands and hence these suits were instituted for the recovery of the principal amount together with interest thereon. The defendant petitioner contested all these suits and denied to have taken any loan from the plaintiffs. He also denied to have orally agreed to pay interest @ 1% per mensem on the principal amount or that any demand for the repayment of loans was made. In additional pleas, it was pleaded by the defendant that all these Rukkas are not documents, evidencing taking of any loans, and they are only receipts of the amounts mentioned therein. The circums-tances leading to the execution of there six Rukkas were explained in detail by the defendant in the additional pleas In these revision applications, I am not concerned with the detailed circumstances,, which have been mentioned by the defendant in his written-statements. At the tims of the framing of the issues, learned counsel for the defendant-petitioner prayed that an issue relating to the advancement of loan in each of the suits be framed and the burden of proving advancement of loan be placed upon the plaintiff This request was orally made (by the learned counsel for the defendant-petitioner to the trial court. The learned District Judge, by his order dated February 17, 1978, declined to frame an issue in regard to the advancement of loan to the defendant on the ground that the execution of the Rukkas, in all the six suits, has been admitted by the defendant and, therefore, it is not necessary for him to frame a separate issue. , as suggested by the defendant. The learned District Judge framed eight issues including relief on the same date i. e. February 17, 1978. For the disposal of these revision applications, it is not necessary for me to reproduce all the issues. But I think it proper to reproduce issue No. 2. Issue Mo. 2: *** The six Rukkas, on the basis of which these six suits were instituted, are identical except one. There is slight variation in the language of the Rukka, which has been produced in Civil SUIT No. 45 of 1977 and that variation is not material. The language used in the Rukka in SUIT No. 44 of 1977 is *** and there is nothing in this Rukka to indicate that the amount was received by the defendant as loan. These Rukkas, merely, acknowledge the receipt of the amounts mentioned therein. All these Rukkas bear a revenue stamp of 10 paisa each. As the learned District Judge did not frame any issue reflating to the advancement of the loan by the plaintiff to the-defendant, the defendant peti-tioner has come up in revision before this Court. I have heard Mr. S. C. Bhandari, learned counsel for the petitioners and Mr. J. P. Joshi, learned counsel for the non petitioners and gone through the -record of the case. Learned counsel for the petitioner argued that the plaintiffs have come with a definite case that the amounts, mentioned in the Rukkas, were advanced as loans to the defendant. This averment of the plaintiffs has been denied by the defendant and, therefore, in view of the provisions of Order XIV, r. 1 C. P. C. an issue in respect of the advancement of loan should have been framed by the trial court and the burden of this issue ought to have been placed on the plaintiffs. Order XIV, r. 1 (1) C. P. C. runs as under: " (1) Issue arise When a material proposition of Fact or law is affirmed by the one party and denied by the other. " Sub-rule 3 of Order XIV, r. 1 C. P. C. lays down that "each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. " It was the duty of the trial court to frame all the issues of fact or law arising out of the pleadings of the parties. Since, the fact of advancing loan was a material averment made by the plaintiffs and that was denied by the defendant, it was incumbent upon the trial court to have framed a distinct issue incorporating the fact that the plaintiffs have advanced loans of the accounts, mentioned in the Rukkas, to the defendant on the date, mentioned therein. The contention of Mr. Joshi is that having regard to the additional pleas, which have been taken by the defendant in his written statements, it was not necessary 'or the trial court to frame a separate issue in each of the suits relating to the advancement of loan, as the execution of the Rukkas, in all the six suits, have been admitted by the defendant and he has narrated the circumstances leading to the execution of the Rukkas. I regret, this contention of Mr. Joshi cannot be accepted. The Rukkas in suits merely show that the amounts mentioned therein, have been received by the defendant. The plaintiffs have averred that the amounts mentioned in the Rukkas were advanced as loans to the defendant. When a sum is admitted to have been received by a defendant, even then a legal presumption that it was meant to repay, does not arise. In these cases, as stated above by me, the plaintiffs in all the six suits came forward with a case that the sums, mentioned in the Rukkas were advanced as loans to the defendant and therefore, they are required to prove at the trial when the defendant has denied to have taken the loans, that the sum in each of the suits was advanced to the defendant as a loan. It has been held in Biharilal vs. Lala Chandulal (1) that: " When a sum is admitted to have been received, there is no legal presumption that it was meant to be repaid. The payment may have been made for various reasons and it is for the person who comes to Court and sues for recovery of the sum of money to prove that it was meant to be repaid. " Wigmore on Evidence in Section 2518 has stated as under: " Where money, or its equivalent, is handed by one person to another, and is accepted by the latter, the transaction may be a bailment, or a loan, or a gift, or discharge of a debt; the latter two transactions would leave the receiver without any further obligation to restore the money. In an action by the payer, therefore, alleging the transaction to be a bailment or a loan, it is fair and natural that the presumption arising from the mere fact of delivering and receiving the money is that of a discharge, rather than a creation, of an obligation; i. e. the presumption is one of payment, not one of loan. " The subject-matter of issue No. 2 in each of the suits is whether the suit document was executed, under the circumstances mentioned in the written statement, and it is without consideration. This issue does not cover the point in controversy regarding advancement of loans made by the plaintiffs. Until and unless, the plaintiffs establish that the loans were advanced to the defendant, he cannot get any relief in any of the suits. It was, therefore, necessary for the trial court to have framed an issue on the averment of advancement of loan made by the plaintiffs to the defendant as alleged by the plaintiffs. Learned counsel for the non-petitioners, next, contended that interference should not be made with the order under revisions and in support of this he relied upon a decision in Smt. Chonsbasawwa vs. Bhimappa Ramappa Hosmani (2) and Bhaskar Manilal vs. Narandas Chunilal Soni (3 ). In the Karnataka case (2), the following observations have been made on which considerable emphasis was laid by the learned counsel for the non-petitioners; " If the trial court has wrongly framed an issue, in such cases the same can be corrected by the appellate court. " In the facts and circumstances of that case, the learned Judges of the Karnataka High Court did not interfere with the order because according to them that was not a perverse order. Here I am tempted to quote, the following observations of the learned Judges of the Karnataka High Court: " The power of revision under Sec. 115 of the Code is discretionary. If the trial Court does not frame the issues properly, there is the Appellate Court where proper issues can be formulated and findings given. If the trial court has failed to frame any issue, there is power under the Code for the Appellate Court to frame an issue and call for a finding on such issue from the trial Court. Therefore, the High Court ordinarily does not interfere with the orders of the trial courts allowing or refusing amendments or addition of issues on applications by one or other of the parties. But that does not mean that the Court has no power to correct an error where the order of the trial court is perverse in the sense that where there is conscious violation of a rule of law or procedure on the part of the subordinate court. " In the Bombay case (3), it has been observed that: " It is well-settled that in its revisional jurisdiction High Court does not usually interfers with interlocutory orders. The framing of issues or the refusal to frame issues, granting a request for amendment of the pleadings or refusing to allow amendment of the pleadings, are matters which are in the discretion of the trial judge, and the decision of the trial Judge in such discretionary matters is not usually open to be revised by High Court But where, in exercising his discretionary powers, the trial Judge acts unreasonably and even capriciously High Court undoubtedly can and must interfere with the capricious exercise of such discretionary powers "
(3.) MR. Bhandari, learned counsel for the petitioner, on the other hand, submits that the orders, under revisions, have occasioned failure of justice. Ha urges that the learned trial court has refused to frame a material issue arising out of the pleadings of the parties and that has prejudiced the defendant-petitioner. In this regard, he also submitted that if none of the parties lead any evi-dence on the issues so framed by the trial court, the result will be that it can pass a decree against the petitioner, for, the fact of loan has not been put in issue. According to the learned counsel, the circumstances, which have been narrated in the written-statements regarding the execution of the Rukkas, merely show that loan was not taken, therefore, contends that non-framing of the issue, as suggested by the defendant-petitioner, will result in irreparable injury. I have considered these contentions and I am of the opinion that the orders, under revisions, should not be allowed to stand, for, they have occasioned a failure of justice and further are likely to cause irreparable injury. Order XIV, r. 1 C. P. C. deals with framing of issues and Order XIV, r. 3 C. P. C. provides as to from what materials issues are to be framed. Rules of procedure have been laid down for the purpose of framing issues. While refusing to frame an issue arising out of the pleadings of the parties, as suggested by the defendant-petitioner, the learned District Judge has committed a breach of the rules of procedure laid down under Order XIV, rr. 1 and 3 C. P. C. about advancement of loan. In Chhaganmal vs. Mst. Heer Bai (4), it was held by a learned Judge of this Court that: " It has certainly committed a material irregularity in exercise of its jurisdiction in dismissing the plaintiff's suit by taking an erroneous view about the burden of proof and this Court has not only jurisdiction but also a duty to correct the mistake. " It has been held in Major S. S. Khanna vs. Brig. F. J. Dhillon (5) that: " The power given by S. 115 of the Code is clearly limited to the keeping of the Subordinate Courts within the bounds of their jurisdiction. " It was further observed therein that: " The section (section 115) is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction where none exists and lastly acting with illegality or material irregularity. " In my opinion, when the trial court refused to frame an issue relating to the advancement of loan as suggested by the defendant-petitioner, it exercised its jurisdiction legally or at any rate with material irregularity. Not only that, there is a violation of rules of procedure on the part of the learned District Judge and when such is the case, it is the duty of the Court to correct the error committed by him. A case for interference in these revision applications is made out and as such for the reasons mentioned above I allow all these revision applications and set aside the orders, under revisions, dated February 17, 1978 to the extent to which the learned District Judge has declined to frame an issue relating to the advancement of loans by the plaintiffs to the defendant. I direct the learned District Judge, Churu to frame an issue in each of the suits regarding advance-ment of loans on the basis of the Rukkas in the light of this order. In the facts and circumstances of the case, I leave the parties to bear their, own costs of these revision applications. .;