KISHAN CHAND Vs. RAM BABU

JUDGEMENT

(1.) JUDGEMENT This second appeal has been referred to a Full Bench because of a conflict between Manohar Lal v. Benares Bank Ltd., AIR 1947 All 245 and Veeravya Vandayar v. Sivagami Achi, AIR 1949 PC 319.

(2.) THE suit giving rise to this appeal was instituted by the respondent against the appellant for the recovery of a mortgage debt. It was contested by the appellant on several grounds including the grounds that "the defendant is an agriculturist within the meaning of U.P. Agriculturists Relief Act ... and the plaintiff did not give to him a copy of the mortgage deed and consequently he is not entitled under the law to recover interest" and that the plaintiff was a creditor and he did not keep an account and did not give to him a statement of the account and is, therefore, not entitled to costs of the suit Neither did the respondent file a replication nor did the trial court examine the parties under O. 10, R. 1, C.P.C. Under R. 1 it was obligatory upon it to ascertain from the respondent or his pleader whether he admitted or denied such allegations of fact as were made in the written statement and as were not expressly or by necessary implication admitted or denied by him and to record such admission and denials. The allegations made by the appellant that he was an agriculturist, and that the respondent was a creditor, within the meaning of the U.P. Agriculturists Relief Act No. 27 of 1934 was an allegation partly of fact and partly of law.

(3.) THE appellant was proved to be a person paying rent for agricultural land not exceeding Rs. 500/- per annum and so came within the meaning at "agriculturist" but under the Proviso he would not be deemed to be an agriculturist if he paid income tax exceeding 5 per cent of his rent. No question seems to have been raised before the trial court about the appellants paying income tax exceeding 5 per cent of his rent and the trial court held that he was entitled to the benefits of the Act. An appeal from its decree was filed by the respondent and two of the grounds taken by him were :-