V SWARNAM AIYAR Vs. VEERAGU AMMAL

JUDGEMENT

(1.) The petitioner was the defendant in a suit on a promissory note. He took various contentions of which the most substantial were a plea of limitation and a plea that he was entitled to the benefits of Act IV of 1938. The plea of limitation failed rightly, being based on a misunderstanding of the effect of a Privy Council ruling. It seems to me quite clear that the last endorsement, dated 10 July, 1937, is an acknowledgment saving limitation and made on the date which it bears.

(2.) The plea under Act IV of 1938 also did not find favour with the learned Subordinate Judge. The plaintiff in his plaint asserted that the defendant was not an agriculturist but did not set up any specific exclusion from the category of agriculturists under the provisos to Section 3 of Act IV of 1938. The written statement alleged that the defendant was an agriculturist entitled to the benefits of the Act, but did not plead how precisely the defendant was qualified as an agriculturist. The written statement was filed on the 26 of August, 1940 and the case was posted for hearing to 16 September on which date the evidence was recorded. On the 16th when the defendant gave his evidence it would appear--though there is no positive record of this fact--that the defendant's vakil wished to tender documentary evidence that the defendant owned particular lands and that these documents were excluded on the ground that they ought to have been filed with the written statement. That is the assertion of the petitioner here and the information received from the gentleman who appeared for the respondent in the lower Court seems to support this version. The evidence of the defendant himself is to the effect that he owned lands in specified villages and that some of those properties were in his enjoyment and others in the enjoyment of his partner and that he was paying kist in respect of that. There was practically no cross-examination except a question as to why particulars of these lands were not stated in the pleading. And there is no positive evidence that the defendant does not own lands.

(3.) In this state of the evidence the learned Subordinate Judge found that the defendant was at fault in not pleading the details of his qualification as an agriculturist in his written statement and that the oral evidence to the effect that he owned lands was too vague to be acted upon. He therefore declined to give the defendant the benefit of the Act and not only did he do so but he concluded his judgment by saying, . Having regard to the contentions raised, I think that this is a case in which plaintiff is entitled to some compensation under Section 35-A of the Civil Procedure Code. Plaintiff is therefore given Rs. 30, in addition to the costs of the suit.