MUNAGALA YADGIRI Vs. PITTALA VEERIAH

JUDGEMENT

(1.) This is a revision against the judgment and decree of the learned District and Sessions Judge, Secunderabad, dismissing the Small Cause Suit No. 148/1 of 1954 on the ground that it had not been established by the plaintiff that he was not a professional money-lender. This revision came up in the first instance for disposal before our learned brother, Manohar Pershad, J. Before him, it was contended for the first time that the plaintiff admitted in his evidence that the amount was advanced to the defendant in order that he might bribe an officer to get a job for his son and, on that admission, the suit should be dismissed, as the loan was advanced for an illegal purpose. The learned Judge has referred the case to a Bench, presumably on the ground that the question raised is of some importance.

(2.) We do not think we are justified in allowing the respondent-defendant to raise for the first time in revision a plea which he could have, if he intended, raised in his written statement and argued before the learned District Judge. Indeed, the plea now raised is inconsistent with the allegation he made in the written statement. In the written statement, it is alleged that he had illicit intimacy with a close relative of the plaintiff, that he discarded her a year prior to the execution of the promissory note, and that the plaintiff and others forced him to execute the promissory note in favour of the plaintiff and that it is not supported by consideration The present alleged admission, namely, that the money was required to bribe an official is certainly inconsistent with the said case. But it is said that when facts supporting the illegality of a contract are disclosed to or discovered by the Court in the course of the proceedings, the Court suo motu should dismiss the suit if the facts establish clearly the case of illegality. Be that as it may, we are not satisfied that, in the present case, the record discloses the facts, clearly and unambiguously, in the sense that we can accept them, to non-suit the plaintiff. What is stated in the evidence is not that money was borrowed to bribe an official, but that the defendant told the plaintiff that he required the money for bribing an official. The defendant's case was not that the money was borrowed to be given as a bribe to secure a job for his son. Even when we put a direct questions to the learned counsel for the respondent, he is not in a position, for obvious reasons, to admit that his client borrowed the money to bribe some official. In the circumstances, we cannot allow the respondent to raise that plea before us.

(3.) On the second question, the learned Judge held that the burden of proof lies upon the plaintiff to prove that he is not a professional money-lender. Section 9 of the Hyderabad Money-lenders Act (V of 1349-F) reads :- Notwithstanding anything contained in any law for the time being in force, in every suit relating to a loan : 1. The Court shall frame and decide the issues whether the money-lender is a money-lender as defined in sub-section (7) of section 2 and whether he has complied with the provisions of section 3 and of clauses (a) and (b) of sub-section (1) of section 5 and sub-sections (i) and (2) of section 6 2. If it is proved that the plaintiff is a money-lender as defined in sub-section (7) of section 2 but does not hold a licence granted under section 3, the Court shall dismiss his suit."