MOHANLAL Vs. JETHMAL

JUDGEMENT

(1.) THIS is a defendant's revision directed against the order of the Civil Judge, Jodhpur dated January 27, 1978 by which he rejected the application dated August 20, 1977 of the defendant made under Section 4 of the Rajasthan Scheduled, Debtors (Liquidation of Indebtedness) Act, 1976 (hereinafter to be referred to as 'the Act').

(2.) THE facts giving rise to this revision may be noticed in brief. The plaintiff non -petitioner instituted a suit on July 20, 1976 against the defendant petitioner for the recovery of Rs. 5166.66 p. alleging that the defendant had borrowed Rs. 5000/ - from him on April 28, 1972, that he agreed to pay interest (a) 1% per mensem on the amount of loan and that he executed a promissory note find a receipt in favour of the plaintiff on the same day The suit was instituted in the court of Civil Judge, Jodhpur. The defendant admitted to have received Rs. 5000/ - as loan from the plaintiff. He also admitted the execution of the pronote and the receipt. He however pleaded' that the plaintiff is a money -lender and since he does not possess a money lending license, he is not entitled to bring the suit' and that at any rate, he, is not entitled to get interest. He also pleaded that he has paid Rs. 2300/ -. to the plaintiff but this amount has not been credited towards the principal lathe alternative, he submitted that he is financially very weak and is unable to pay the Whole amount due in lump sum and so in case of decree being passed against him instalments may be fixed. The learned Civil Judge framed five issues including relief on Match: 18, 1977. Issue No. 2 is to the effect whether the defendant is not a trader the burden of which lay on the defendant. During the pendency of the suit, on August 20, 1977, the defendant moved an application under Sec 4 of the Act add prayed therein that the suit of the plaintiff may be dismissed with costs. Along with the application, he submitted a certifi cate issued by the Tehsildar, Jodhpur Hated April 7, 1977 in which, inter alia, it is mentioned that the defendant is a marginal farmer. This application of the plaintiff was resisted by the plaintiffs Vide his reply dated September 3, 1977. He denied that the defendant is a Scheduled Debtor but, on the contrary; he asserted that the defendant is a trader and the amount of loan was taken in correction with the business. The learned Civil Judge, vide his order dated January 27, 1978 dismissed the application holding that the petitioner is rot an agriculturist as defined under Section 2(b) of the Act. Being aggrieved by this order, the defendant petitioner has come up in revision before this Court.

(3.) SECTION 5 of the Act lays down amongst others that the Tehsildar, within the local Units of whose jurisdiction a debtor actually and voluntarily resides, or carries on business or personally works for gain, shall be competent to issue a certificate in the prescribed form and manner certifying amongst others that the debtor is a 'marginal farmer'. The certificate produced by the defendant along with the application under Section 4(2) of the Act substantially complies with Form 2 prescribed in Rule 4 of the Rajasthan Scheduled Debtors (Liquidation of Indebtedness) Rules, 1976. When the certificate in the prescribed form issued by the Tehsildar Jodhpur was produced by the defendant along with the application under Section 4 of the Act, a presumption in his favour arises as envisaged by Section 6 of the Act and the burden to prove to the contrary, therefore, lies on the plaintiff -creditor. The learned Civil Judge adopted a defective procedure in as much as he did not draw the presumption arising under Section 6 of the Act. In this view of the matter, he has exercised his jurisdiction illegally and, at any rate, with material irregularity. Section 4 has an overriding effect as it contains the non -obstinate clause, and hence it was incumbent on the court below to comply with the provisions of Section 6 of the Act. It is, therefore, for the plaintiff -creditor to prove that the defendant is eat a scheduled debtor.