Natha Singh vs Ram Piyari

(1) This is an application against an order of the Sub Judge Jammu dared 24473 rejecting the contend not the petitioner that the enus of issue No.

1 should be placed on the defendant.

(2) The defendant was declared as an agriculturist and the suit was tried under the provisions of the Agriculturist's Relief Act. These facts are not

disputed. The suit has been filed on the basis of a Hundi for a sum of Rs 2000/ with Rs. 600/as interest. In support of the rule Mr. Rachpal Singh

submitted that in view of S c 118 of the Negotiable Instruments Act once the execution of the document is proved consideration had to be

presumed and the onus lay on the defendant to prove that no consideration passed This c mention appears to have been' overruled by the learned

SubJudge who relied upon a single Bench decision of this court in 37 PLR J&K 14. The contention of the counsel for the respondents is that as the

suit was tried under the provisions of the A.R.A this was a special Act and the provisions of the general Act namely, the Negotiable Instruments

Act were overruled to that extent by the special Act Having regard to the scheme of the A.R.A particularly S. S it seems to roe that the intention of

the legislature was to put the plaintiff to strict proof not only of the loan but also of the history and the background against which the loan was

advanced That is why S. 8 makes it incumbent on the plaintiff as also the defendant to examine themselves as witnesses, unless the court for

reasons to be recorded in writing deems it unnecessary to do so Furthermore the latter pare of S. 8 clearly enjoins a duty on the court to find out

whether the defence is based on the ground of fraud, mistake, accident and so on. Thus the intention of the of the legislature in passing the special

statute in the shape of the AR Act seems to be that the plaintiff must prove his case before the defendant is called upon to answer to claim It

therefore follows that the plaintiff, in order to succeed, must not only prove that he had executed the bond or the Hundi, but also that consideration

had passed. I am supported in my view by a decision in 87 PLR J&K 14, 15 wherein Sawhny J. observed as follows :

It is therefore plain and it has been repeatedly laid down by this court that the burden of the proof of passing of the consideration lies on the

moneylender creditor. It is immaterial whether the suit is based on a bond or even upon a negotiable instrument as the ordinary law of the land has

been modified by the Agriculturist Relief Regulation in this respect.

(3) I fully agree with the observations made by Sawhny J. which appear to be in consonance with the language employed in and the scheme, of A.

R. Act.

(4) Furthermore the question of the misplacing of the onus can hardly be said to be a case decided, because this is purely an academic matter of an

interlocutory nature and once the plaintiff adduces his evidence to show the execution of the pronote as also passing of the consideration, the onus

shifts to the other side. In these circumstances there is hardly any ground for the revisional court to interfere in such cases, even if an error of

procedure is committed by the trial court.

(5) For these reasons the application is dismissed but in the circumstances without any order as to costs.