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2001 DIGILAW 1032 (AP)

Koyi Hari Babu v. Kanumuri Subbaramaiah

2001-09-14

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) JUDGMENT the unsuccessful defendant in SC No. 35 of 1991 on the file of the learned Senior Civil Judge, Addanki, is the revision petitioner. The respondent in the civil revision petition is the plaintiff in the suit. The parties hereafter will be referred for convenience as plaintiff and the defendant. ( 2 ) THE plaintiff had filed a suit for recovery of Rs. 6,590. 00 with subsequent interest and costs. The case of the plaintiff is that the defendant for his necessities borrowed an amount of Rs. 5,000. 00 and executed a promissory note dated 24-5-1989 agreeing to repay the same with interest @ 15% per annum in favour of one Bachina Subba Rao and inspite of repeated demands made by the said Subba Rao, both personally and through mediators, the defendant did not pay the amounts. On 19-4-1991 the said Subba Rao transferred the promissory note in favour of the plaintiff by virtue of the said transfer endorsement on the reverse of the promissory note, Ex. A1 and the transfer endorsement is marked as Ex. A2. Immediately after the transfer, the plaintiff had informed the same to the defendant and had demanded for repayment. The plaintiff got issued Ex. A3 notice dated 30-4-1991 for which a reply dated 5-5-1991 (Ex. A-4) was given. ( 3 ) THE defendant filed his written statement denied the averments made in the plaint and contended that his brother by name Venkatesham and himself, had divided more than three years back from his brother and as such he has been inimical towards his brother and he is having only an extent of Ac. 2. 70 cents which he got in partition with his brother and he had never borrowed any amount from the said Subba Rao. The suit promissory note is a forged one and his brother might have used the blank stamp paper which he had obtained while they were joint, filed for the purpose of obtaining loan from the bank and the suit promissory note is brought into existence in such circumstances. . It is also further pleaded that the defendant is a small farmer and an agriculturist having an extent of Ac. 2. 70 cents and the plaintiff being a cattle dealer and cotton business dealer earning not less than Rs. 5,000. . It is also further pleaded that the defendant is a small farmer and an agriculturist having an extent of Ac. 2. 70 cents and the plaintiff being a cattle dealer and cotton business dealer earning not less than Rs. 5,000. 00 every year for the last nine years, he cannot be said to be a small farmer; whereas the defendant is a small farmer entitled to the benefits of Act 45 of 1987. ( 4 ) ON behalf of the plaintiff PWs. 1 to 6 were examined and Exs. Al to A7 were marked and on behalf of the defendant DW1 was examined and Exs. Bl to B3 were marked. Apart from it, Ex. X1 was also marked. The Court below had framed the following points for determination. 1. Whether the suit pronote is true and genuine? 2. Whether the defendant is a small farmer entitled for the benefit of Act 45 of 1987 and Act 2 of 1990? ( 5 ) THE present impugned judgment appears to be the second round of litigation. Originally the suit was decreed on 27-9-1994 and against the said judgment and decree, the defendant preferred CRP No. 5297 of 1994. The said civil revision petition was allowed and the matter was remanded for disposal according to law after giving sufficient opportunity to both the parties to let in additional evidence only with regard to small farmer and the Court below in paragraphs 8 and 9 had discussed point No. 1, in paragraphs 10 to 21 had discussed point No. 2 and ultimately had decreed the suit with costs for an amount of Rs. 6,590. 00 with subsequent interest at 6% per annum on the principal amount of Rs. 5,000. 00 from the date of suit i. e. , 26-12-1991 till the date of realisation. The defendant aggrieved by the said judgment again had preferred the present civil revision petition. ( 6 ) SRI Rajendra Prasad, the learned Counsel appearing for the revision petitioner-defendant had made serious and emphatic submissions contending that the very approach of the Court below in misplacing the burden of proof, itself, is totally unsustainable, illegal and it is contrary to Section 13 of the Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977 (for short the Act ) and also the findings recorded in CRP No. 5297 of 1994. The learned Counsel also had drawn my attention to paragraph 11 of the impugned judgment, where the Court below had dealt with the aspect of the burden of proof. The learned Counsel also had drawn my attention to portions of the order in CRP No. 5297 of 1994 and had contended that these findings in the impugned order are totally contrary to the findings given in the prior civil revision petition. The learned Counsel also contended that the findings given in the prior civil revision petition being findings inter parties, it operates as res judicata and hence the approach of the Court below in proceeding with the matter in such direction, while deciding the matter is totally erroneous in law. Apart from it, the learned Counsel also had strenuously contended that the total extent owned by the family is only Ac. 6. 20 cents and there was separation long back. Even otherwise, since father and two sons are there and even the extent is notionally divided, it will be less than the prescribed limit under the Act. The learned Counsel also had submitted that the evidence on record is clear that the defendant is owning lesser extent than the one specified in the Act and hence he is entitled to the benefits of the Act. The learned Counsel had also drawn my attention to the several aspects discussed in the judgment and had pointed several infirmities. The learned Counsel placed strong reliance on the following decisions : 1. Vallanki Narsaiash v. Gottipati Chinna Subbaiah Naidu, 1997 (3) ALD 19; 2. Gollareddigari Golla Reddy v. Mallepalli Adinarayan Reddy, 1996 (3) ALD 148 ; 3. O. K. Anjaneya Gupta v. Pullappa, 1997 (4) ALD 568; 4. S. Laxman Rao v. D. Chinna Papaiah Raju, AIR 1980 AP 191; 5. P. Vrahalamma v. Repeti Ramana, AIR 1979 AP 25 ; 6. D. China Papayya v. S. Ramachandra, AIR 1982 AP 39. ( 7 ) THE learned Counsel had also strenuously contended that in the case of individual debts, while computing the extent for the purpose of the Act, the extent available with the debtor alone has to be taken into consideration. The learned Counsel also contended that it is not the case of the other side that the debt is a joint family debt and hence it is saved by the ratio laid down in the Full Bench decision. The learned Counsel also contended that it is not the case of the other side that the debt is a joint family debt and hence it is saved by the ratio laid down in the Full Bench decision. ( 8 ) SRI Venkateshwarlu, learned Counsel, representing Sri G. Pedda Babu had made the following submissions: The learned Counsel submitted that the scope of the revisional jurisdiction under Section 25 of the Provincial Small Causes Act, itself, is a limited jurisdiction and in view of the detailed reasons which had been recorded by the Court below, it cannot be said that the impugned order is not in accordance with law and hence it does not call for any interference, while exercising the revisional jurisdiction. The learned Counsel also had further contended that the evidence of PW6 which is available on record clearly establishes that the defendant is having more land than the prescribed limit under the Act. The learned Counsel had taken me through the Exs. Al to A7, Exs. B1 to B3 and also Ex. X1 and the evidence of PWs. 1 to 6 and DW1. The learned Counsel had also drawn my attention through the elaborate discussion made on point No. 2 in paragraphs 10 to 21 of the impugned judgment. ( 9 ) HEARD both the learned Counsel and perused the records. ( 10 ) SECTION 13 of the Act dealing with the burden of proof specifies that in any suit or proceeding, the burden of proving that the debtor is not entitled to the protection of this Act shall, notwithstanding anything in any law for the time being in force, lies on the creditor. ( 11 ) IN fact, in CRP No. 4297 of 1994 this Court was pleased to observe as follows: "insofar as the finding on the question whether the petitioner is a small farmer or not, the learned Sub-Judge committed a serious legal error touching the question of jurisdiction and the legal propriety. He has thrown the burden on the defendant to prove that he is a small farmer inspite of Section 13 of the Act throwing the burden of proving that the debtor is not entitled to the protection of the Act on the creditor/plaintiff, notwithstanding anything contained in any law for the time being in force. He has thrown the burden on the defendant to prove that he is a small farmer inspite of Section 13 of the Act throwing the burden of proving that the debtor is not entitled to the protection of the Act on the creditor/plaintiff, notwithstanding anything contained in any law for the time being in force. It was also further observed: "at this stage, the learned Counsel for the respondent pleads that since the plaintiff in the suit could not get the documents to discharge the burden as above, the matter may be remitted. The learned Counsel for the petitioner opposes. But this Court feels that in the nature of the materials depended upon and the manner in which the learned Sub-Judge has dealt with the matter, it is appropriate that the matter should go back for reconsideration when the present respondent/plaintiff, can have one more opportunity to discharge the burden in accordance with Section 13 of the Act, particularly when there is a finding on contest that the petitioner is liable to pay the amount to the plaintiff by virtue of the pronote executed by him" ( 12 ) IN the light of the said findings made by this Court in the earlier civil revision petition, it may be appropriate to look into paragraph 11 of the impugned judgment, where it had observed that the "initial burden is on the defendant to prove that he is a debtor within the meaning of Section 3 (j) of Act 7 of 1977 as contemplated under Section 13 of the said Act before the statutory burden shifts to the creditor to prove that the debtor is not entitled to the protection of the Act 7 of 1977. The initial burden of the debtor will be discharged if he could be able to show that he is a debtor as defined under Section 3 (j) and small farmer and the burden squarely lies on the plaintiff-creditor to show that the defendant is not a small farmer. This approach of the Court below appears to be contrary to the observations made in the civil revision petition. ( 13 ) IT is also pertinent to note that the plaintiff as such had not taken a plea that either the transferor or the transferee of the promissory note are small farmers within the meaning of the Act and hence having a right to recover the amount. ( 13 ) IT is also pertinent to note that the plaintiff as such had not taken a plea that either the transferor or the transferee of the promissory note are small farmers within the meaning of the Act and hence having a right to recover the amount. There is no plea and there is no evidence in this regard. Be that as it may, after perusing the findings given in the civil revision petition referred to supra, I am of the opinion that the subject-matter has to be remitted back again to the Court below for giving opportunity to both the parties to let in further evidence, if any, relating to the aspect of small farmer. It is also pertinent to note that except the evidence of DW1, there is no other evidence on the part of the defendant and the defendant intends to take advantage of the non-discharge of the burden of proof which is cast on the plaintiff by virtue of Section 13 of the Act. However when the total evidence let in, the defendant is also expected to let in the necessary evidence to substantiate his contentions. ( 14 ) BE that as it may, there is another aspect involved in the matter that whereas the transferor and transferee i. e. , bothpws. l and 2 in the matter are small farmers or not and if so, if PW2 is able to establish that he is a small farmer, whether the plaintiff in the present suit is entitled to relief under Act 7 of 1977 and evidently since the parties had not adduced the necessary evidence on this aspect, the Court below had not adverted to these aspects of the matter. Hence for this reason also it is just and necessary that the matter has to be remitted back to the Court below for fresh disposal again. The Court below is directed to permit both the parties to let in further evidence on the aspect of "small farmer" i. e. , whether the defendant is a small farmer entitled to the benefits of the Act and also whether the transferor and transferee of the promissory note are entitled to recover the amount being small farmers within the meaning of the Act. ( 15 ) FOR the foregoing discussion, the order made in SC No. 35 of 1991 on 6-8-1998 by the learned Senior Civil Judge, Addanki is hereby set aside and the matter is remitted to the Court below to be disposed of in accordance with law, as indicated above. ( 16 ) ACCORDINGLY the civil revision petition is allowed to the extent as indicated above. But, in the circumstances of the case, there shall be no order as to costs.