An order of a subordinate court refusing to change the onus of an issue is a "case decided" within the meaning of Section 115 of the Civil Procedure Code and a revision lies to the High Court against such an order.

PREM CHAND JAIN, J.

1. On the reference that has been made by me, the question of law that requires determination in this case, may be formulated thus :-

Whether a revision lies to this Court against an order of a Subordinate Court, refusing to change the onus of an issue? This Court in a Division Bench decision in L. Union Fire, Accident and General Insurance Co. Ltd., New Delhi V/s. Shri O. P. Kapur, AIR 1963 Punj 397, held that the placing of the onus of an issue on one party or the other in the course of a suit by a Subordinate Court is not a matter on which the High Court is entitled to interfere in revision under Section 115 of the Code of Civil Procedure and that the ordinary method to be adopted by a party for contesting an order passed in the course of a suit, which that party considers to be wrong, but against which no appeal lies, is to challenge it in an appeal filed after the suit, in which the order has been passed, is decided. The decision in L Union Fire, Accident and General Insurance Co. Ltd. case AIR 1963 Punj 397 is based mainly on a Full Bench decision of the Rajasthan High Court in Nagori Ibrahim V/s. Shahji Babumal, AIR 1954 Raj 83 (FB), which in turn is based on an earlier Full Bench decision of the same Court in Purohit Swarupnarain V/s. Gopinath, AIR 1953 Raj 137 (FB). In Purohit Swarupnarain s case AIR 1953 Raj 137 (FB), the question that had been referred to the Bench for decision was in the following terms :-

Whether where it is open to a party to raise a ground of appeal under Section 105, Civil P.C., from the final decree or order with respect to any order which has been passed during the pendency of the case, it should be held that an appeal from that order lies to the High Court in the meaning of the term in which no appeal lies thereto appearing in Sec.115, Civil P.C."

Chief Justice Wanchoo who prepared the main judgment and with whom the other four learned Judges agreed, returned the answer in the negative and held that in such a case revision would not be competent. During the course of discussion, it was observed thus :-

"Therefore, the revisability of the order depends on whether an appeal lies in the suit or proceeding. If an appeal lies in the suit or proceeding, and if the order in question can be challenged in the appeal, whether it be first or second appeal, no revision would be competent to the High Court. It is only when the order in question cannot be challenged at all, in first or second appeal, and even by way of a ground under Section 105, that it can be said that no appeal lies to the High Court, and it should, therefore, exercise its extraordinary jurisdiction under Section 115 to look into the correctness of the order, as required by clauses (a), (b) and (c) of the section."

As earlier observed, relying on Purohit Swarupnarain s case AIR 1953 Raj 137 (FB), the learned Judges of the. Full Bench in Nagori Ibrahim s case AIR 1954 Raj 83 (FB) held that the aggrieved party could take a ground under Section 105 of the Code of Civil Procedure from the decree that may be finally passed on the basis that wrong allocation of burden of proof had resulted in prejudice to the person on whom the burden was wrongly put and had adversely affected the decision of the case on the merits and in this view of the matter, no revision would lie to the High Court merely because burden of proof was wrongly allocated in the sense that wrong party was required to lead his evidence just on the particular issue in respect of which the burden was wrongly placed on him.

2. From the tenor of the decisions referred to above it is clear that all those decisions have proceeded mainly on the around that as the aggrieved party could challenge the decision prejudicial to him, under Section 105 of the Code of Civil Procedure, from the decree that may finally be passed, no revision lay to the High Court. The learned counsel for the petitioners challenged the correctness of the view taken in the aforesaid de