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Naubat Rai Vs. Jugal Kishore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All606
AppellantNaubat Rai
RespondentJugal Kishore and ors.
Excerpt:
.....the plaintiffs had failed to prove the debt and were, therefore, not entitled to recover anything. two of those cheques had been endorsed by the debtor who himself realised the money. the third cheque had been endorsed by a third party who realised the money at the instance of the debtor. air1931all294 .on the findings recorded by the learned judge of the lower appellate court this case is almost similar to those cases and we think that the lower court acted with material irregularity in the exercise of its jurisdiction in giving the plaintiffs a decree for the principal sum merely because it had been satisfied that the money had been lent, even though it was of the opinion that the provisions of section 39, u......distinguishable. in the case before us all that the plaintiffs can rely upon are their own account-books written by themselves at their leisure and not even in the presence of the defendant, which can under no circumstances be treated as a 'written document' within the meaning of section 39 of the act. there was a complete detachment between these entries and the debtor and it cannot be said that it was ever intended by the parties to the loan that the entries in the account-books should be used as a written record of the transaction.6. learned counsel for the opposite parties has urged that even if the learned judge of the lower court has made a mistake of law it does not invoke our revisional jurisdiction, and we have, therefore, no power to interfere under section 115, civil p.c......
Judgment:

Malik, C.J.

1. This is a defendant's application in revision. The plaintiffs from time to time lent money to the defendant and the defendant made certain payments. In the year 1945, the plaintiffs filed a suit for recovery of Rs. 136-10-0 as balance due on the basis of the plaintiffs' ac-count-books. The defendant pleaded that he was an agriculturist and that as there was no 'written document' evidencing the loans, for the recovery of which the suit had been filed, within the meaning of Section 39, U.P. Agriculturists' Relief Act, the plaintiffs' suit was bound to fail. There were other pleas also taken and the trial Court framed three issues. It held that the plaintiffs had failed to prove the debt and were, therefore, not entitled to recover anything. The plaintiffs filed an appeal, and the learned District Judge of Farrukhabad held in defendant's favour that the provisions of Section 39, Agriculturists' Belief Act had not been complied with as there was no 'written document'. But the learned Judge came to the conclusion that from the other evidence it was established that money had been borrowed by the defendant and a sum of Rs. 100 was due to the plaintiffs and decreed the suit fox that amount, that being only the principal money, the learned Judge having disallowed all interest. The defendant filed this application in revision under Section 115, Civil P.C. The case came up below one of us and as there was some apparent difference of opinion between this Court and the Avadh Chief Court on the interpretation of Section 39, Agriculturists' Relief Act the case was referred to a bench for decision.

2. Section 39, U.P. Agriculturists' Relief Act (XXVII [27] of 1934) provides that:

Every loan given after the date on which this Art comes into force shall be evidenced by a written document, of which a copy shall be given to the debtor.

It is clear that the Legislature intended that a loan advanced, after the Act had come into force, to an agriculturist debtor should not be a oral debt but that a record should be made of it in writing and a copy of it given to the debtor and whenever the question arose whether the agriculturist-debtor was liable for the money claimed or not that writing might be used as evidence of the transaction. It is admitted by the learned Counsel for the plaintiffs that the signatures of the debtor were not obtained against the entries in the plaintiffs account books. The plaintiffs at their own convenience made entries in their account-books which must be deemed to be a note or a memorandum made by them for their own purpose and not a record of the transaction made with the object of being used as the sole evidence of the transaction between the parties. We are, therefore, of the opinion that the entries in the account-books of the plaintiffs cannot be interpreted as included in the words 'written document' in Section 39, Agriculturists' Relief Act.

3. Section 91, Evidence Act, provides that:

When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter except the document itself, or secondary evidence of its contents in oases in which secondary evidence is admissible under the provisions hereinbefore contained.

Section 3 of the same Act defines 'document' as meaning

any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

As we ace of the opinion that Section 39 requires that if a debt is borrowed by an agriculturist, it should be evidenced by a 'written document,' under Section 91, Evidence Act, no other evidence could be given, in the absence of any 'written document,' of such a loan. The point came up for decision before a learned single Judge of this Court in Ram Ghulam v. Kandhai Lal A.I.R. (34) 1947 ALL. 10. There a suit had been brought for the recovery of money on the basis of certain entries in the plaintiffs' account-books. The entries in the account-books were relied upon as 'written document' within the meaning of those words in Section 39, U.P. Agriculturists' Relief Act. Certain rules framed by the U.P. Government were also relied upon as indicating the meaning of the words 'written document' in Section 39. The learned Judge, after having discussed the question whether the Provincial Government could under its rule-making power include something which on a proper interpretation the words were not intended to include, held that he could not accept the argument that

an entry by a creditor entirely for his own domestic purposes, In his own private accounts- accounts of which he would not dream of sending a copy to his debtor-can really be regarded as a 'written document' which 'evidence' the loan within the meaning of Section 39(1) of the Act.

The learned Judge went on to observe:

I think that Section 39 contemplates some document that is brought into existence for the purpose of constituting as between the debtor and the creditor the evidence of the transaction and of its terms, of which the debtor can be given a copy so that he may have a record of the full terms of the liability to which he has engaged himself.

We respectfully agree with the observations made by the learned Judge and are of the opinion that they lay down the correct law.

4. Learned Counsel for the opposite parties has relied on two single Judge decisions of the Avadh Chief Court. In Brij Lal v. Surajman A.I.R. (28) 1941 Oudh 420, the defendant-agriculturist had borrowed money and had executed a promissory note and a receipt. The promissory note was insufficiently stamped and the question was whether the receipt constituted a 'written document' within the meaning of those words in Section 39, Agriculturists' Belief Act. The learned single Judge was of the opinion that such a receipt was a 'written document.' The promissory note and the receipt were executed as written records of the transaction and the receipt signed by the debtor would, in our view, be such a 'written document.' There is nothing in this ruling which would help the opposite parties in support of their argument that the account-books kept by the plaintiffs for their own purpose, written by them at their leisure and not signed by the debtor could be deemed to be a 'written document.' There is no conflict between the view expressed by this Court in Ram Ghulam v. Kandhai Lal A.I.R. (34) 1947 ALL. 10 and the view expressed in Brij Lal v. Surajman A.I.R. (28) 1941 Oudh 430.

5. In the other case, Sundar Lal v. Ram Dayal Singh A.I.R. (30) 1943 Oudh 332, the creditor instead of giving cash had issued cheques. Two of those cheques had been endorsed by the debtor who himself realised the money. The third cheque had been endorsed by a third party who realised the money at the instance of the debtor. The learned single Judge thought that it was absolutely necessary that a loan made to an agriculturist-debtor should be under the provisions of Section 39, U.P. Agriculturists' Relief Act evidenced by a 'written document' and that if this was not done the suit could not succeed but he was of the opinion that the endorsement of the debtor on the back of the cheques or the endorsement of the third party at the instance of the debtor fulfilled the requirements of the section. It is not necessary for us in this case to say anything about the correctness or otherwise of this decision as the facts were entirely distinguishable. In the case before us all that the plaintiffs can rely upon are their own account-books written by themselves at their leisure and not even in the presence of the defendant, which can under no circumstances be treated as a 'written document' within the meaning of Section 39 of the Act. There was a complete detachment between these entries and the debtor and it cannot be said that it was ever intended by the parties to the loan that the entries in the account-books should be used as a written record of the transaction.

6. Learned Counsel for the opposite parties has urged that even if the learned Judge of the lower Court has made a mistake of law it does not invoke our revisional jurisdiction, and we have, therefore, no power to interfere under Section 115, Civil P.C. Where a special Act is applicable to a certain class of people for whose benefit it is meant and it has wrongly been applied to others or where the lower Court by reason of a mistaken interpretation has excluded a member of that class for whose benefit the legislation had been passed, the question whether in such a case the Court has made a mistake in the exercise of its jurisdiction is a matter which is not free from doubt or difficulty. Since 1937 this Court has in several cases admitted revisions where it was of the opinion that the benefit had been wrongly given or wrongly denied. The case before us, however, stands on a stronger footing as the learned Judge in this case was of the opinion that the account-books were not 'written document' within the meaning of those words in Section 39 of the Act and yet in disregard of the provisions of this section the learned Judge interfered with the decree of the trial Court and decreed the plaintiffs' suit for the principal amount. In cases coming under Order 9, Rule 13, Civil P.C., where the lower Courts after holding that there was not sufficient cause for setting aside an ex parte decree had set aside the ex parte decree on other considerations, this Court in two Full Bench decisions has held that the Court acted with material irregularity on the exercise of its jurisdiction and has interfered. (See Ram Sarup v. Gaya Prasad : AIR1925All610 . and Radha Mohan Datt v. Abbas Ali Biswas and Ors. : AIR1931All294 . On the findings recorded by the learned Judge of the lower appellate Court this case is almost similar to those cases and we think that the lower Court acted with material irregularity in the exercise of its jurisdiction in giving the plaintiffs a decree for the principal sum merely because it had been satisfied that the money had been lent, even though It was of the opinion that the provisions of Section 39, U.P. Agriculturists' Relief Act, had not been complied with.

7. The third, and the only other point, urged by the learned Counsel is that substantial justice having been done we should not, in our revisional jurisdiction, interfere with the decree passed by .the lower Court. Where a decree is erroneous in the sense that some technical rule of law has been overlooked which could have been remedied this Court does not ordinarily interfere in revision but where there is a prohibition in a statute and a claim could not have been decreed according to law we do not consider that we would be justified in importing any abstract considerations of justice and overlooking the principle that justice should be administered according to law.

8. We are therefore, of the opinion that this is fit case where, in our revisional jurisdiction, we should allow the application and set aside the decree of the lower Court and dismiss the plaintiffs' suit in its entirety. We order accordingly. In view of the fact that the money was actually borrowed by the defendant we consider it is a fit case in which the parties should bear their costs in all the Courts.


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