Andhra HC (Pre-Telangana)
Karri Venkata Rama Reddy vs Megalapu Viswanatham on 15 July, 1993
Equivalent citations: 1993(3)ALT176
ORDER M.N. Rao, J.
1. This revision petition is directed against the order of the Principal District Munsif, Ramachandrapuram, in I.A.No. 890 of 1990 in O.S.No. 95 of 1987, rejecting the prayer of the plaintiff for recasting issue No. 2.
2. The suit was laid on the strength of a promissory note for recovery of Rs. 5,475/-. After the written statement was filed by the defendant, the following three issues were framed:
"(1) Whether the suit pronote is true, valid and supported by consideration?
(2) Whether the defendant is not a 'debtor' under Act 7 of 77 and if so, whether the defendant is entitled to the benefits of Act 7 of 1977?
(3) To what relief?"
When the suit was posted for trial, on behalf of the plaintiff I.A.No. 890 of 1990 was filed to recast issue No. 2 as under:
"Whether the defendant is a debtor within the meaning of Section 3 (j) of Act 7 of 1977 and if so, whether he is not a small farmer entitled to the benefits of the said Act?"
3. After hearing both sides the learned District Munsif, following the judgment of a Division Bench of this Court reported in Kasi Viswanatham v. Venkata Subba Rao, 1984 (2) ALT 173 rejected the prayer of the plaintiff. Challenging the same, the present revision was filed.
4. Although notice was received by the respondent, he has not entered appearance. I have, therefore, requested Mr. V.L.N.G.K. Murthy to assist the Court as amicus curiae and he readily agreed. I record my grateful appreciation for the assistance rendered by him.
5. It is contended by Mr. M. Lakshmana Sarma, learned counsel for the petitioner, that when the defendant has taken the plea in the written statement that he is a 'small farmer,' the burden of proof is upon him; but, under issue No. 2, as originally framed, the burden is cast on the plaintiff wrongly. Matters which are within the knowledge of the defendant regarding his financial position, extent of land owned and other details, cannot be brought on record by the plaintiff.
6. Section 13 of the Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977 (Act 7 of 1977) reads as under:
" 13. Burden of proof: In any suit or proceeding, the burden of proof that the debtor is not entitled to the protection of this Act shall, not with standing anything in any law for the time being in force, lie on the creditor."
7. Interpreting the aforesaid Section, K. Ramachandra Rao J., (as he then was) in Kasturibai v. Bademia, 1980(2) ALT 386 observed:
"It is for the debtor to first establish that he falls within the definition of a debtor. It is only thereafter that the burden shifts to the creditor that such a debtor is not entitled to claim the benefit of the Act on one or the other of the grounds mentioned in the Act."
8. A Division Bench of this Court in Kasi Viswanatham v. Venkata Subba Rao (1 supra), while reviewing the case law including Kasturibai's case (2 supra), has held:
".......it is quite conspicuous that a creditor in order to succeed in a suit to recover such a debt, will have to establish that the debt sought to be recovered under the suit is not the one contemplated under the Act, the burden of proof being on the creditor under Section 13. It is immaterial whether the debtor-defendant fails to enter appearance and remains ex parte. In other words, the plaintiff must not only raise the plea that the defendant-debtor is not the 'debtor' within the meaning of the Act, but the plea so raised must be proved to the satisfaction of the court and there should be an adjudication holding that the debt sought to be recovered under the suit is not the one covered by the Act. This inference is irresistible under Section 4(i) which seeks to discharge the debt notwithstanding the provisions of any law in existence but also any other contract or instrument having the force of law, read conjunctively with Section 13, which casts burden on the creditor to prove that the defendant is not a 'debtor' within the meaning of the Act."
9. The burden that is cast by Section 13 of the creditor is re-emphasised by the Division Bench. There appears to be no inconsistency between the two decisions, namely Kasi Viswanatham v. Venkata Subba Rao (1 supra) and Kasturibai v. Bademia (2 supra). The debtor should first enter into the witness box and produce prima facie proof that he is entitled to the benefits of Act 7of 1977 i.e., the debtor falls within the definition of Section 3(j). Thereafter, the onus shifts to the creditor, under Section 13, to establish that the debtor is not entitled to the benefits of the Act.
10. In the light of this legal position, it is necessary to re-cast issue No. 2 in the following manner as issues 2 and 3:
"(2) Whether the defendant is a 'debtor' under the provisions of Act 7 of 1977?
(3) Whether the defendant is not entitled to the benefits of Act 7 of 1977?"
The last issue would be - "To what relief?". The first issue framed by the learned District Munsif should remain as it is.
11. On the above issue No. 2, the debtor-defendant should lead prima facie evidence that he is a 'debtor' within the meaning of the Act. Thereafter, under issue No. 3 the onus shifts to the plaintiff-creditor. The order of the learned District Munsif is set aside and the revision petition is allowed as indicated above. No costs.