Hari Narain Tiwari vs Damodar Busar

Inder Sen Israni, J.—This revision petition has been filed againt the order dated 23-11-1982 passed by the learned Additional Civil Judge, Jaipur Distt, Jaipur in civil suit No. 43/77, whereby the application filed by the petitioner under Order 14, Rule 5 CPC was dismissed.

The plaintiff non-petitioner, filed a money suit for recovery of Rs. 800/- alongwith interest. The defendant-petitioner, inter alia raised a preliminary objection that the plaintiff petitioner is doing business of money lending and is a money lender within meaning of the Money Lenders Act. It is further objected that since the plaintiff does not possess any valid licence at the time of alleged transaction as such the plaintiff was not entitled to file the suit. Issue No. 6 was framed; which reads as under:

Whether the plaintiff is a money lender and does business of money lending

The burden of this issue was cast on the defendant. The petitioner defendant filed an application praying that the onus of the above issue should be changed and placed on the plaintiff and not on the defendant. The trial court after hearing both the parties dismissed the said application on 23-11-1982.

None has appeared on behalf of the non-petitioner.

The contention of Shri N.K. Mishra, learned Counsel for the petitioner is that there is bar u/s II of the Rajasthan Money Lenders Act, 1963 (here in after called as ''the Act"), wherein it has been laid down that where a suit has been filed by a money lender to which a provision of this Act applies and the court is satisfied that at the time when loan or any part thereof to which the suit relates was advanced, the money lender did not hold a valid licence, it shall dismiss the suit forthwith without going into the merits of the claim and shall order the refund of the security, if any without repayment. It is therefore, contended that since there is clear bar in the Act burden squarely lies upon the non-petitioner plaintiff to prove that the provisions of this Act do not apply to the present suit & that he is, therefore, authorised to file the suit for recovery of loan advanced to the petitioner. Reliance has been placed on a Full Bench decision of Patna High Court in Smt. Fula Devi Vs. Mangtu Maharaj and Others, . A similar point arose in this matter under the Bihar Money Lenders (Regulations of Transaction) Act, 1939, wherein section 4 provided a bar for filing suit for recovery of loan without registration. It was held that in view of the bar under the first paragraph of the above said Act, the onus to prove as a matter of law that the suit for recovery of loan is cntertainable u/s 4 without registration is on the plaintiff. A reference in this respect may also be made to the case of K.S. Nanji and Company Vs. Jatashankar Dossa and Others, . This was a case filed for possession of immovable property. An objection regarding limitation was raised by the defendant in his written statement. It was held by the Apex Court that obviously where a person has right to sue within 3 years from the date of his coming to know of certain facts, it is for him to prove that he had the knowledge of the said fact on a particular day, for the said fact would be within his peculiar knowledge. It is further stated that it is the duty of the plaintiff to establish at any rate prima-facie that the is within time and is not barred by lapse of time.

In the present case the non-petitioner plaintiff filed a suit for recovery of money and an objection was raised in the written statement that the suit was barred under the provisions of the Act and therefore the burden to prove that the suit for recovery of any loan in view of the restrictions placed by the Act, lies on the non-petitioner plaintiff and therefore, the burden for proving the issue should have been placed on the plaintiff and not on the defendant-petitioner. When a person files a suit knowing fully well that a law has been enacted which provides bar for filing the suit, it is for the person who files suit that such bar is not applicable.

In view of the above discussion, the revision petition is accepted and the order of the trial court dated 23-11-1982 is set-aside and the burden for proving issue No. 6 is cast on the plaintiff non-petitioner. No order as to costs.