VANEM HANMANT RAO Vs. NAMALA NALLIAH

JUDGEMENT

(1.) THIS is an appeal brought by the defendant in a suit for money based on two promissory notes. The defence was that the appellant had repaid the amount borrowed. The learned Munsiff raised necessary issues and at the same time framed a statutory issue under S. 9 of the Hyderabad Money Lenders' Act. The appellant was called upon to produce evidence in support of his defence, which he failed to do. Then the learned trial Judge called upon the respondent to prove the statutory issue. The plaintiff -respondent also failed to lead any evidence. Section 9 of the Hyderabad Money Lenders' Act provides that if it is proved that the plaintiff is a money -lender and he has not taken any license to carry on his money -lending business, his suit shall be dismissed. In view of these provisions the learned Munsiff dismissed the suit. On appeal, the learned District Judge of Warangal differed from this view of the law. He held that the burden of proving the statutory issue lay on the defendant -appellant, and inasmuch as no evidence has been produced either in proof of re -payment or the statutory issue, the suit should have been decreed. On this finding the suit was decreed.

(2.) I think that the view taken by the learned Munsiff was quite correct. It was the duty of the respondent to prove that he was not a money -lender as to be struck by the provisions of S. 9 of the Money -Lenders' Act. The provisions of this section show that the statuary issue is to be framed whether the defendant appears before the Court or the suit is ex parte against him. If we accept the contention of the learned advocate for the respondent ';hat the burden is upon the defendant, then it would mean that in case the suit is ex parte, the statutory issue would be redundant and no issue need be raised at all. In my opinion, the presence or absence of the defendant has nothing to do with the framing and the burden of proving the statutory issue. The learned advocate requests to give him a further opportunity of leading evidence to show that he is not a money -lender within the meaning of the Money -Lenders' Act. The suit was instituted in 1358F., and we are now in 1361F. It is too late now to give further opportunity of adducing the evidence. Therefore I allow the appeal and restore the judgment of the trial Court. In view of the circumstances of this case, the parties will bear their costs throughout. Appeal allowed.