1. The plaintiff-applicant's suit is a simple money claim based on a hand note executed by non-applicant No.1 Saraswatibai, though she says, the money was advanced to both the non-applicants, Sarawatibai and her husband Ramdayal. Ramdayal when asked to sign the hand-note, the applicant pleads said that he usually remained out and the money shall be repaid through 'Saraswatibai and she alone need put her thumb mark. He assured that he was responsible for repaying the loan.

2. In defence, the non-applicants denied having borrowed any loan. They said that the hand-note was a forged and a concocted document Ramdayal denied having given any assurance or having stood a surety for the loan. They claimed compensatory costs on the ground that the suit was false and vexatious.

3. The trial Court framed a comprehensive issue which, when translated, reads as under :

"Did the defendants borrow Rs.1040 on 26-8-1969 from the plaintiff and did the defendant No.1 execute hand-note therefore on behalf of both the defendants?" The first-appeal Court is of the opinion that the plea of forgery specifically raised by the defendants non-applicants should have been put in an issue. This would have directed attention of the defendants-non-applicants that they were required to lead evidence of a handwriting expert to prove forgery. The second issue, the appeal Court says, that ought to have been framed was whether or not Ramdayal stood a surety by some oral agreement. The appeal Court, therefore, framed these two issues and remitted them for trial.

Held: The learned counsel for the applicant-plaintiff argued that the issue framed by the trial Court was the correct issue raised. The defendants having denied the execution the burden was placed on the applicant to prove that the same was executed by the defendants If followed that the defendant were asked to give their evidence in rebuttal to prove that the document set up was a forged one. It was not a sound practice, the counsel said, to frame issues both in the affirmative and in the negative. If the affirmative issue was framed calling on a party to discharge the burden of proving it, it was not necessary to frame it in a negative form and call on the adversary to prove it.

4. That no doubt is the correct proposition as regards framing of issues. The issue framed by the trial Court covered the plea of forgery raised by the defendants. Once the Court came to the conclusion that the document was not executed by the defendant No.1, it followed that it was a forged document. That being so, it was not necessary to cast an issue on the plea of forgery. That was implicit in the affirmative issue framed by the Court.

5. What needs to be seen in the present case is whether the parties went to trial fully knowing the rival contention and each led the evidence in support of his case and in refutation of the case of the other or has absence of the issue resulted in a mis-trial? If a party knowingly and deliberately does not give evidence on a particular point, say in the present case that of a handwriting expert in the hope that the Court might yet hold the document not proved, should he be permitted to take a plea that he was misled in the trial since the issue of forgery was not framed? Should the application accept that pretext and remit an issue for trial? That is exactly what the appeal Court has done. The evidence as I read it, discloses that the parties were alive to the real controversy. The defendants did not choose to examine an expert though they had pleaded forgery. They thought, their denial of the thumb-mark from the witness-box was sufficient evidence and it was for the plaintiff to examine a handwriting expert to prove that the mark was a genuine one. They meant to take the risk. If that was so, they could not ask for a remand to fill in lacuna in their evidence on a pretext that a material issue was not framed.

6. The appeal-Court was not, therefore, justified in remanding the case when the