KRISHNA MURTY Vs. SUDESH KUMATI

JUDGEMENT

(1.) This Appeal is preferred by the plaintiff in O.S. 5 of 1966 on the file of the Second Addl. Judge, City Civil Court, Hyderabad dismissing the suit for recovery of Rs. 6,000/-. The Suit was filed in the first instance against one Bakthawar Singh. The case of the plaintiff was that the defendant borrowed Rs. 2,000/- on 27-8-1963 and executed a receipt for that amount. He again borrowed a sum of Rs. 4,000/- on 5-3-1964 and executed another receipt. On the same day the wife of the defendant, Ahalya Bai executed a security bond in respect of her house situated in Hyderabad for securing the due payment of the two amounts borrowed by her husband. Ahalya Bai, died before suit. The plaintiff stated that the defendant inherited the property of his wife which is given as security and the said property in bis hands was liable for the suit amount. The defendant died a few months after the suit was filed. Thereupon, the plaintiff filed an application to add the second defendant, the daughter of the first defendant as his legal representative as she inherited the property given as security after the death of her father. In the counter to the petition the second defendant pointed out that she had a sis'er by name Kamala Bai and stated that she is also a legal representative. Notwithstanding this statement, the plaintiff contended himself by requesting that the second defendant alone should be added as legal representative and the application was ordered. Even in the written statement filed by the second defendant it was reiterated that she had another sister who was entitled to the property along with her and as she was not added as a party, the suit has to be dismissed for non-joinder of parties. It was also contended that the suit debts and the security bond were not true and farther that the suit should be dismissed, as the plaintiff was a professional money lender and did not possess a licence under the Money Lenders Act.

(2.) The court below on a consideration of the evidence held that there was no clinching and reliable proof that the plaintiff lent Rs. 2,000/- on 27-8-63 and Rs. 4,000/- on 5-3-1964 to the first defendant and that the latter passed receipts. Exs. A-l and A-2 as contended by the plaintiff. It also held that the plaintiff failed to prove that Ahalya Bai executed the security Bond, Ex. A-3. The court below further held that as the plaintiff did not add Kamala Bai, the other legal representative as a party, the suit was bad for nonjoinder of parties. On issue 3, namely, whether the plaintiff was a professional moneylender, the court below observed that "there was no definite evidence either to accept or reject the contention whether the plaintiff is a professional moneyleader or not and therefore no definite finding can be recorded on this issue". In the result, having regard to the finding on the other issues, the suit was dismissed with costs. The plaintiff has preferred this appeal against the said Judgment and decree of the Court below.

(3.) Before going into the main question regarding the truth of the debts alleged to have been incurred by the first-defendant and the security bond alleged to have been executed by his wife, Ahalya Bai, I wish to observe that the court below was wrong in stating that as there was no definite evidence either to accept or reject the contention that the plaintiff was a moneylender, no definite finding can be recorded on that issue. It is the duty of the court to come to some conclusion and give a definire finding on the issues raised. It cannot escape the responsibility for a decision by saving that there is no definite evidence one way or the other or that the evidence is evenly balanced that it cannot choose between the evidence of one side or that of the other.