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 10th 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 26th of August, 1940 and the case was posted for hearing to 16th 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.
4. If in fact the lower Court held the view that in a small cause suit it is incumbent upon a defendant to file along with the written statement every scrap of paper on which he proposes to rely by way of evidence, I can find no support in law for this view. Order 13, rule I, Civil Procedure Code, requires the parties or their pleaders to produce at the first hearing of the suit, all the documentary evidence on which they intend to rely. It has been held with reference to the trial of an ordinary suit that the first hearing of the suit is the hearing for the framing of issues ...vide Chidambaram, v. Parvathi : AIR1926Mad347 . That occasion is of course the first occasion on which parties or their pleaders are normally heard. In a small cause suit, the normal practice is for the written statement to be filed without any hearing of the parties and for a date then to be fixed on which the trial shall proceed, there being no framing of issues. It seems to me impossible to hold that the date on which the defendant files his written statement is the date of the first hearing. In a small cause suit the date of the first hearing must be the date which the Court appoints for the trial to begin after the pleadings have been completed. If this view is correct, it follows that the documentary evidence available to the defendant in support of his plea that he was an agriculturist should not be rejected if tendered on the day of the hearing. No doubt he might in his written statement have given some particulars of his qualifications to be an agriculturist; but his omission to do so is not to my mind a ground for refusing to admit his evidence, though it might have been a ground for requiring him to-amplify his pleading. Even without the documentary evidence, it might well have been held by the trial Court that the only evidence on the subject of the agriculturist status of the defendant was that which the defendant himself adduced which was to the effect that he did own agricultural lands. But clearly the documentary evidence which the defendant tendered should not have been excluded if the lower Court was not satisfied with the oral evidence which he adduced.
5. The order of the trial Court under Section 35-A of the Civil Procedure Code seems to me to be open to criticism both on technical grounds and on the merits. It does not appear that any objection was raised on behalf of the plaintiff to the effect that the defence was false or vexatious to the knowledge of the defendant and in the absence of any such objection, I do not think that the Court has the power to award compensatory costs under Section 35-A. Moreover an order under Section 35-A has to be passed after recording reasons for holding the defence to be false or vexatious. In my opinion the words 'having regard to the contention raised, I think that this is a case in which the plaintiff is entitled to some compensation' are not a sufficient recording of the reasons for holding the defence to be false or vexatious to the knowledge of the defendant. As I read the defence, there is nothing false or vexatious in it. Certain pleas have been taken which have failed. One plea has been taken which there are grounds for thinking should have succeeded. But whether it succeeds or fails, there is nothing to show that it was taken falsely or vexatiously. It failed not because it was false but because it was not sufficiently proved.
6. In the result therefore I allow the revision petition with costs, set aside the decree and order of the lower Court and direct the lower Court to record a fresh finding on the question whether the defendant is entitled to the benefits of Act IV of 1938 after permitting both parties to adduce evidence on this question. The lower Court will then pass a fresh decree in the light of the finding and of this Court's judgment.