RANJITSINGH RAISINGHJI THAKUR Vs. BAPUMIYAN SARDARKHAN

JUDGEMENT

(1.) IN this application by the defendant in a money suit for a large sum, the question raised by the defendant -applicant is one of procedure pure and simple, and of little ultimate consequence except in terms of the duration of the litigation. One of the issues in the suit is that numbered 13 : Whether the plaintiff is a money -lender doing regular business of money -lending with agriculturists ?

(2.) THE defendant claims to be an agriculturist and if he establishes that the plaintiff is a money -lender, he will get certain concessions, under the Madhya Bharat Money -Lenders Act (62 of 1950) which was in force at the time of the loan, or the Madhya Pradesh Money -Lenders Act (13 of 1934) extended to the new Madhya Pradesh in 1959. This issue is to be decided in any event, but the grievance of the defendant is that his prayer for a hearing and separate decision on this issue as a preliminary one under Order 14, rule 2, Civil Procedure Code, has been rejected. The plaintiff on the other hand, who is understandably impatient as nearly ten years have elapsed since the filing of the suit, finds in this also a delaying tactic. The Court has decided to follow the general procedure. Order 14, rule 2 provides that the Court shall try the issues of law first, and may postpone the settlement and trial of the issues of fact, if it is of opinion that the case or any part of it might be disposed of on the issues of law only. The question whether the plaintiff is a money -lender is a factual or a mixed one and as such Order 14, rule 2 will not apply. However, the defendant has contended that there is a mandatory provision both in the Madhya Bharat, and in the Madhya Pradesh Money -Lenders Acts that an issue like this shall be tried and decided before the Court enters on examination of the other issues. He relies upon section 7(a) of the Madhya Pradesh Act which corresponds to section 13(a) of the Madhya Bharat Act. We are dealing with a matter of procedure pure and simple so that the law applicable would be the law in force at the time of the hearing, that is, the Madhya Pradesh Act, and not the law in force at the time of the transaction, that is, the Madhya Bharat Act. Had it been a case of the substantive rights of the parties, then the position would be just the opposite. In regard to the instant problem the distinction is academic because both the sections have the same effect. They run : - The Court shall before deciding the claim on the merits frame and decide the issue whether the money -lender has complied with the provisions of section 3. The defendant has argued that the phrase "frame and decide" does not mean "decide along with the other issues", but "frame and try or hear", that is to say, should in the manner provided in Order 14, rule 2, postpone the settlement of other issues, and at all events try and hear this issue before touching on the others. As against this, the plaintiff has pointed out that the word used is "decide" and not "try or hear". In other words, while disposing of the suit and preparing its judgment, the Court should apply its mind to this issue at first, and proceed to consider the issues relating to the merits of the claim afterwards. Actually, the logical sequence of the judgment would in any event imply this order, and this section only makes this order of the headings of decision compulsory. It has nothing to do with splitting up the issues or the order of the trial or hearing with reference to the particular issues. Apart from it, the plaintiff has also urged that in view of section 8 of the Madhya Pradesh Act, section 7 cannot be invoked in this suit, because the loan had been made before the commencement of the Act; further, this being a question of pure procedure, the earlier Madhya Bharat Act may not in any event be called in. But for our purposes it is unnecessary to examine these last grounds. Assuming that either section 7(a) of the Madhya Pradesh Act or section 13(a) of the Madhya Bharat Act does not apply, it is still difficult to accept the defendant's contention; that the word "decide" implies "try or hear". As already noted, the distinction between the two words is brought out by a comparison with the wording of Order 14, rule 2. That rule speaks of the Court trying certain issues first "try", meaning call upon the parties to adduce evidentiary and other materials on their contentions. There is no possibility of mistake or confusion between the words "try" and "decide" or the mental processes they respectively involve. Trial is for all practical purposes the same thing as hearing, that is to say, a joint enterprise by three parties, those in contention and the Court, the former producing the materials and the latter admitting or rejecting them, and reducing them to a record in the appropriate manner provided by law. "Decide" means something altogether different which follows after the trial or the hearing is complete. It is not a process in which three parties take part. It is a process in the mind of the Court, though the tracks are laid by the materials provided by the contending parties. Thus the section on which the defendant depends only requires the Court to decide at first the issue relating to the questions mentioned in it and not to the trial or the hearing. The words "frame the issue" mean only that a separate issue should be framed; but it is not necessary for the purpose of that section that the issues relating to these questions alone need be framed and those relating to the merits postponed. All the issues may be framed at the same time, but while deciding, the Court should apply its mind at first to the questions mentioned here; and follow it up, by a decision on the other issues,