HEM RAJ Vs. HEERA LAL

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal in a suit for recovery of money. The plaintiffs Hem Raj and Bhinvraj filed a suit against the defendants Heera Lal and Durga Ram on the basis of a 'khata' for a sum of Rs. 4401/-said to have been executed by the defendants on 13. 1. 74 after going through their dealings with the plaintiffs. Thereafter, they re-paid a sum of Rs 51/- but further took loans on two occasions in the sum of Rs. 28/- and 100/- leaving a balance of Rs 6186/-out-standing against them. Since that amount was not paid the plaintiffs were obliged to file the suit. The defendants denied the execution of the 'khata' and the dealings with the plaintiffs, inter alia, they also pleaded that the plaintiffs, were money lenders but had not complied with sections 22 and 23 of the Money Lenders' Act and had further pleaded that they were agriculturists and in view of section 47 of the Rajasthan Relief of Agricultural Indebtedness Act, the suit was not maintainable. After framing the necessary issues and taking the evidence of the parties the trial court found the execution of the 'khata' to be proved. However, it found that although the plaintiffs were money lenders and had money lending licence they did not comply with the provisions of sections 22 and 23 of the Money Lenders Act and therefore, the suit was liable to be dismissed. Issue no. 9 (a) had been framed on the defendants' plea that since they were agriculturists the suit was not maintainable against them but at the time of the arguments in the suit the defendants did not press this issue and, therefore, it was decided against them. Thus, although all the other issues had been decided in favour of the plaintiffs, the suit was dismissed on the technical ground that the plaintiffs had not complied with sections 22 and 23 of the Money Lenders Act, the suit could not be maintained. Aggrieved of this dismissal of the suit by the learned Addl. Civil Judge, Pali by judgment and decree dated 23 1. 82, the plaintiffs went up in appeal before the learned District Judge, Pali, who affirmed the decree of the lower court by his judgment and decree dated 16. 12. 83. The plaintiffs have, therefore, come up before this Court in this second appeal.

(2.) ALTHOUGH, in the memo of appeal the substantial questions of law framed by the learned counsel for the appellants revolved around issue no. 7, namely, non-compliance with sections 22 and 23 of the Money Lenders Act, the learned counsel for the appellants has moved en application under O. XLI rule 1 and 3 read with O. VI rule 17 C. P. C. praying leave to amend the memo of appeal by urging a ground that the suit itself was not maintainable under section 47 of the Money Lenders Act, inasmuch as the defendants were admittedly agriculturists.

(3.) I, therefore, allow this appeal, set aside the judgments of the two courts below and direct that the plaint be returned to the plaintiffs for their taking proceedings before the Debt Relief Court in accordance with the provisions of the Rajasthan Relief of Agricultural Indebtedness Act. In the circumstances of the case, there shall be no order as to costs. .