Shri Narain vs Suraj Prakash

Nigam, J.C.

Suraj Prakash Bhargava filed Civil Suit No. 533 of 1951 in the Court of the Sub-Judge, First Class, Ajmer, against Srinarain claiming a decree for Rs. 12,980/- with costs and future interest pendente lite. The learned Sub-Judge framed five issues on 4-3-1952. On 5-5-1952 the defendant gave an application under O. 14, R. 4, Civil P.C. urging that two further issues be framed as to whether the defendant had on 2-7-1948 executed a pro-note for Rs. 11,000/- and whether this alleged pro-note had been misplaced by the plaintiff. It was suggested that issue no. 2 framed by the learned trial Judge be deleted and in its place an issue be framed as to the execution of the pro-note. It was further prayed that issue No. 3 Be recast. This application was rejected by the learned Sub-Judge by his order dated 18-7-1952. Against that order, Srinarain defendant has come up in revision. I have heard the learned counsel for the parties.

The learned counsel for the opposite-party has raised a preliminary objection that no revision lies. The learned counsel has relied on -- ''S. Bhanwar Lal v. S. Sri Niwas'', AIR 1952 Ajmer 11 (2) (A).

The learned counsel for the applicant has urged that three issues should have been framed to cover the points:

(i) Whether the pro-note for Rs. 11,000/- was executed by the defendant?

(ii) Whether this pro-note had been lost by the plaintiff? and

(iii) Whether the endorsement of payment of Rs. 4,000/- on the back of the pro-note dated 10-1-1944 had been made after 2-7-1948?

The learned counsel agrees that issues 2 and 3 framed by the learned trial Judge relate to the points mentioned at Nos. (i) and (iii) above. The learned counsel, however, refers to S. 118 (e), Negotiable Instruments Act and urges that the learned trial Judge should have presumed that the endorsement about the payment of Rs. 4,000/- Was made after 2-7-1948 as it occurs after an endorsement bearing that date. Section 118 (e) only requires the Court to raise the presumption that the endorsement was made in order in which it appears. The Court is not required to make the presumption that a subsequent endorsement was made on a subsequent date. Besides, this presumption is to be made until the contrary is proved. If the learned trial Judge, in the circumstances of the case, was of opinion that certain circumstances exist justifying his not raising the presumption, there can be no grievance against his procedure. Points Nos. (i) and (iii) are, as conceded by the learned counsel, covered by issues 2 and 3.

''AIR 1952 Ajmer 11(2) (A)'' is an authority for the proposition that the question of the burden of issues that is the correct framing of the issues cannot be agitated in revision. I respectfully agree with the view then expressed. As such, I am of opinion that there is no substance in the points (i) and (iii) raised by the learned counsel.

The learned counsel has urged that the learned trial Judge should have framed the issue whether the original pronote of Rs. 11,000/- alleged to have been executed by the defendant had been lost by the plaintiff. The contention of the learned counsel is that in the absence of a finding of loss the plaintiff would not be entitled to lead secondary evidence of the document. I am of opinion that no specific issue need have been framed. The learned trial Judge will no doubt not look into the secondary evidence if it is produced unless he is satisfied that the plaintiff has established his right to produce secondary evidence by satisfying him as to the loss of the pro-note. That is a question of appreciation of evidence and I do not think it necessary that a specific issue should be framed on the point.

No other point has been pressed before me.

Accordingly, I see no force in this revision application and dismiss it with costs.