NATHA SINGH Vs. RAM PIYARI

JUDGEMENT

(1.) THIS is an application against an order of the Sub Judge Jammu dated 24 -4 -73 rejecting the contention of the petitioner that the onus of issue No. 1 should be placed on the defendant.

(2.) THE defendant was declared as an agriculturist and the suit was tried under the provisions of the Agriculturistsâ„¢ Relief Act. These facts are not disputed. The suit has been filed on the basis of a Hundi for a sum of Rs.2000/ - with Rs.600/ - as interest. In support of the rule Mr. Rachpal Singh submitted that in view of S. 118 of the Negotiable Instruments Act once the execution of the document is proved consideration had to be presumed and the onus lay on the defendant to prove that no consideration passed. This contention appears to have been over -ruled by the learned Sub -Judge who relied upon a single Bench decision of this court in 37 PLR J&K 14. The contention of the counsel for the respondents is that as the suit was tried under the provisions of the A.R.A, this was a special Act and the provisions of the general Act namely, the Negotiable Instruments Act were over -ruled to that extent by the special Act. Having regard to the scheme of the A.R.A. particularly S. 8, it seems to me that the intention of the legislature was to put the plaintiff to strict proof not only of the loan but also of the history and the background against which the loan was advanced. That is why S. 8 makes it incumbent on the plaintiff as also the defendant to examine themselves as witnesses, unless the court for reasons to be recorded in writing deems it unnecessary to do so. Furthermore the latter part of S. 8 clearly enjoins a duty on the court to find out whether the defence is based on the ground of fraud, mistake, accident and so on. Thus the intention of the legislature in passing the special statute in the shape of the A.R Act seems to be that the plaintiff must prove his case before the defendant is called upon to answer the claim. It therefore follows that the plaintiff in older to succeed, must not only prove that he had executed the bond or the Hundi, but also that consideration had passed. I am supported in my view by a decision in 37 PLR J&K 14, 15 wherein Sawhny J. observed as follows : - "It is therefore plain and it has been repeatedly laid down by this court that the burden of the proof of passing of the consideration lies on the money -lender creditor. It is immaterial whether the suit is based on a bond or even upon a negotiable instrument as the ordinary law of the land has been modified by the Agriculturist Relief Regulation in this respect." I fully agree with the observations made by Sawhny J. which appear to be in consonance with the language employed in and the scheme of the AR Act.

(3.) FURTHERMORE the question of the mis -placing of the onus can hardly be said to be a case decided, because this is purely an academic matter of an interlocutory nature and once the plaintiff adduces his evidence to show the execution of the pronote as also passing of the consideration, the onus shifts to the other side. In these circumstances there is hardly any ground for the revisional court to interfere in such cases, even if an error of procedure is committed by the trial court.