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P. Thanka Nadar Vs. Nesamony Nadar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1983)2MLJ415
AppellantP. Thanka Nadar
RespondentNesamony Nadar
Cases Referred and Bhurilal v. Shobhabai
Excerpt:
- .....is argued even before this court, viz., whether the defendant is entitled to the benefits of the tamil nadu debt relief act, 1976. the trial court framed as many as four issues on the pleadings. the case of the plaintiff, as stated in the plaint, was that the defendant had borrowed a sum of rs. 1,000 or 6th may, 1974 from him and executed a promissory note agreeing to pa y interest at 24 per cent, per annum on demand and now the plaintiff is satisfied with 9 per cent interest. it is also the case of the plaintiff that the defendant owns extensive properties and his annual net income would be more than rs. 10,000. a registered notice was sent to the defendant on 14th august, 1974, demanding the principal and interest and the as me was received by him.2. on the other hand, the case of.....
Judgment:

S. Swamikkannu, J.

1. This is a fit and proper case where an order of remand is necessitated in view of the fact that the lower appellate Court entertained an appeal on the basis of Clause (4) of Section 96 of the Civil Procedure Code. Section 96(4) reads as follows--

No appeal shall lie, except on a question of law, from a decree in any suit of a nature cognizable by Courts of Small Causes, when the a mount of value of the subject matter of the original suit does not exceed three thousand rupees.

It is common ground that the suit was on a promissory note and that Exhibit A-l promissory note was filed before the trial Court and there was no one to speak about the contents of the same. There was no oral evidence let in by either side. Neither the plaintiff has gone into the box not the defendant. Apart from Exhibit A-1, the promissory note and Exhibit A-2, a copy of the suit notice and Exhibit A-3 postal acknowledgment, no other documents were filed before the trial Court and on the basis of which the trial Court came to the conclusion on various points that had been raised including the one that is argued even before this Court, viz., whether the defendant is entitled to the benefits of the Tamil Nadu Debt Relief Act, 1976. The trial Court framed as many as four issues on the pleadings. The case of the plaintiff, as stated in the plaint, was that the defendant had borrowed a sum of Rs. 1,000 or 6th May, 1974 from him and executed a promissory note agreeing to pa y interest at 24 per cent, per annum on demand and now the plaintiff is satisfied with 9 per cent interest. It is also the case of the plaintiff that the defendant owns extensive properties and his annual net income would be more than Rs. 10,000. A registered notice was sent to the defendant on 14th August, 1974, demanding the principal and interest and the as me was received by him.

2. On the other hand, the case of the defendants put forward in the written statement is that the defendant's income from the property is less than Rs. 500 per annum that the defendant is a small farmer and that there-fore, he is entitled to the benefits of Act XXXI of 1976 which wipes out the debt. Hence, the plaintiff is not entitled to claim any a mount from the defendant. The defendant is a debtor as defined in the Tamil Nadu Ordinance V of 1978 and he is, therefore, entitled to the benefits thereunder. Hence the suit is liable to be dismissed with costs.

3. The following issues were framed for trial--

1. Whether the defendant is entitled to the benefit of Ordinance V of 1978?

2. Whether the plaintiff is entitled to claim interest when the moratorium was in force?

3. Whether the suit is not maintainable?

4. Reliefs and costs?

Under issue No. 1, the trial Court held that the defendant is not a small farmer and that he is not entitled to the benefit of Act XXXI of 1976, but the defendant is entitled to the benefit of Ordinance V of 1978, which was passed into Act XL of 19 78. Under Issue No. 2, the trial Court held that the plaintiff is entitled to claim interest when the moratorium Act was in force. Under Issue No. 3 the trial Court held that the suit is maintainable in view of the findings on issues 1 and 2. Under Issue No. 4, the trial Court found that the suit had to be decreed for half of the principal a mount, namely Rs. 500 with interest at 9 per cent from the date of suit promissory note, i.e., 6th May, 1974, till the date of decree and subsequent interest at 6 per cent on the principal sum of Rs. 5,000 from the date of decree still the date of realisation with proportionate costs. Aggrieved by the above decision of the trial Court, the defendant 'has preferred A.S. No. 20 of 1979 before the learned Subordinate Judge, Padmanabhapura m. On the point whether the defendant-appellant is entitled to get the benefit under Act XXXI of 1976, the lower appellate Court held that the defendant appellant before the Court is not liable to pay any amount and that as the appellant had succeeded on a technical ground, the lower appellate Court directed both parties to bear their respective costs.

4. Now, the plaintiff has come forward with this civil revision petition inter alia contending that the lower appellate Court had no jurisdiction to entertain the appeal since the suit is of a small cause nature in as much as the amount claimed is only Rs. 1,000 and what is more as per Section 96(4), Civil Procedure Code, only when there is a point of law the lower appellate Court can entertain the appeal by invoking the jurisdiction vested with it under the provisions of Section 96(4). Before actually-entertaining an appeal, according to the learned Counsel for the revision petitioner, a definite finding ought to have been rendered by the lower appellate Court. Inasmuch as the judgment under revision does not contain such a clear finding it is irregular and requires revision under Section 115, Civil Procedure Code, together with the provisions of Section 102, Civil Procedure Code. Learned Counsel for the revision petitioner further submits that the lower appellate Court even if it is to be construed that it has got jurisdiction, inasmuch as the point that had been decided by it was only a question of law, yet, another infirmity from which the said judgment suffers is that the lower appellate Court had not properly construed Section 12 of the Tamil Nadu Debt Relief Act, 1976, since the same had been omitted by Tamil Nadu Act V of 1980.

5. Learned Counsel for the respondent in this revision petition, on the other hand, would submit that the learned Subordinate judge as the appellate Court, correctly entertained the appeal because the question whether a person is entitled to the benefits of Tamil Nadu Debt Relief Act, 1976 and as such whether he can be called a small farmer as per the definition of Section 3, is a question of law and as such the entertainment of the appeal by the lower appellate Court is correct and it has got jurisdiction to entertain the same. Learned Counsel for the respondent herein would further submit that even on the evidence available the Court has correctly come to the conclusion by properly construing the burden of proof as per Section 12, which was in existence at the time of the institution of the suit.

6. Learned Counsel for the revision petitioner on the other hand would submit that the omission by the Tamil Nadu Act V of 1980 of the provisions of Section 12 of the Tamil Nadu Debt Relief Act, 1976, has to be construed as not one in existence, no doubt from the date of the Tamil Nadu Act V of 1980. This Tamil Nadu Amendment Act, 1980, was published in the Tamil Nadu Government Gazette, Extraordinary, part IV, Section 2, dated 7th March, 1980. It is enacted under Section 1, Clause (2) in this Amendment Act V of 1980 that this Act except Section 9 shall be deemed to have come into force on the 13th day of December, 1979. The suit, O.S. No. 391 of 1978 on the file of the Court of the learned Principal District Munsif of Padmana bhapuram was disposed of by way of judgment and decree of that Court on 13th November, 1978. Therefore, despite the omission of the provision relating to burden of proof in the Tamil Nadu Debt Relief Act, 1976 it was quite in existence at the time of the disposal of the suit. It is needless to say that the said provision was available even on the date of the institution of the suit-In these circumstances, when there is no specific retrospective effect given, apart from the provision under Section 1 of the Act V of 1980, the lower appellate Court is perfectly correct in having taken into consideration the concept of burden of proof contemplated by Section 12 of the Tamil Nadu Debt Relief Act, 1976. There-fore, the point raised on behalf of the revision petitioner herein that the burden of proof, which has been omitted by the Tamil Nadu Act V of 1980 ought not to have been taken in to Consideration by the lower appellate Court, cannot be upheld.

7. Regarding the maintainability of the appeal before the lower appellate Court is concerned, since the lower appellate Court had construed the aspect of the availability or application of the benefits of the provisions of the Tamil Nadu Debt Relief Act, 1976, as a point of law, it had entertained the appeal and the appeal is entertainable by an appellate Court even though it is of small cause nature because of the specific provision of Clause (4) of Section 96, Civil Procedure Code, which had been introduced by amending Act IV of 1976.

8. In this regard, the decisions reported in K. Joseph Thompson and Anr. v. Natta. thambi Nadar : (1980)2MLJ389 and Bhurilal v. Shobhabai as well as unreported judgment of Venugopal, J. in C.R.P. No. 2992 of 1970 were pointed out by the learned Counsel for the petitioner.

9. In the instant case no doubt, there is no specific observation by the lower appellate Court that it was entertaining, the appeal, because there had been an existence of a question of law. But, that does not by itself render the order revisable under Section 115, Civil Procedure Code or under Section 102. Civil Procedure Code. Yet, it has gone into the question of law comprehensively and has come to the conclusion. But, the preliminary question raised on behalf of the-revision petitioner viz., that the lower-appellate Court had no jurisdiction to entertain the appeal is a contention which has to be repelled as untenable under the circumstances because the lower appellate Court did rightly entertain the appeal as it had only discussed the point of law.

10. The next point that is urged is with respect to the materials available and with those materials the lower appellate Court has gone wrong in coming to the conclusion when the burden is entirely on the plaintiff to prove that the defendant, the respondent herein, is a small farmer. The materials that were actually put forth before the trial Court and which were considered even in the appeal are only three documents mentioned above namely, the promissory note, the suit notice and the postal acknowledgment. Are these documents, which formed the only evidence available on record, sufficient and adequate to come to a decision on the important question of few that had been taken into consideration by the lower appellate Court, is the question that confronts this Court in this revision, while considering the said aspect under the provision of powers vested with this Court under Section 115, Civil Procedure Code. In this view, this Court finds that the availability of evidence on record is quite inadequate and as such both sides should be given an opportunity to let in evidence, both oral and documentary regarding the points of law. While thus remanding, this Court is not inclined to observe anything more than to say that the decision arrived at by the lower appellate Court. is one that had been arrived et on in. adequate materials and as such it is set aside. The revision petition is allowed, and the matter is remitted back to the trial Court, viz., the Court of the Principal District Munsif of padmanabhapuram, which will take the suit on file and allow both sides to let in evidence, both oral and documentary and render judgment in accordance with law and in the light of the observations made supra No order as to costs in this revision petition The trial Court will take the suit on file and dispose of the same as early as possible, soon after the receipt of the records, as the suit is of the year 1978.


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