KISHAN CHAND Vs. RAM BABU
LAWS(ALL)-1964-2-10
HIGH COURT OF ALLAHABAD
Decided on February 25,1964

KISHAN CHAND Appellant
VERSUS
RAM BABU Respondents


Cited Judgements :-

A SHIVARAMAIAH VS. CHARDAPPA PAI [LAWS(KAR)-1978-8-5] [REFERRED TO]
MOTIRAM VS. PANNALAL [LAWS(MPH)-2001-9-23] [REFERRED TO]
PRABHU DAYAL VS. LEELA DHAR [LAWS(ALL)-1971-11-2] [REFERRED TO]
IBNE HASAN VS. HASINA BIBI [LAWS(ALL)-1984-1-66] [REFERRED TO]
RATANLAL NAHATA AND VS. NANDITA BOSE [LAWS(CAL)-1998-6-7] [REFERRED TO]
HEM RAJ AND OTHERS VS. MEHTAB SINGH AND OTHERS [LAWS(P&H)-1983-5-94] [REFERRED TO]
PRASANT GAUR VS. STATE OF U P [LAWS(ALL)-1988-5-28] [REFERRED TO]
MOTIRAM VS. PANNALAL [LAWS(MPH)-2001-9-32] [REFERRED TO]


JUDGEMENT

DESAI,C.J. - (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.
According to the law of pleadings the appellants duty was to plead only the facts; he should have pleaded the facts on the basis of which he claimed the legal status of an agriculturist and assigned the legal status of a creditor to the respondent. The written statement was undoubtedly defective inasmuch as it did not allege the facts on the basis of which the status of agriculturist was claimed for himself and that of creditor for the respondent. The trial court ought to have called upon him to amend his written statement by alleging the facts on the basis of which the status was claimed for each of the parties. After requiring the appellant to allege the facts it should have called upon, as required by O. 10, R. 1, the respondent to admit or deny them. The plaint filed by him did not expressly or by necessary implication admit or deny them; he could have filed the plaint in the form in which it was filed whether he admitted or denied the facts on the basis of which the status of agriculturist and creditor was claimed and alleged by the appellant. Even though the allegations made by the appellant about his being an Agriculturist and the respondents being a creditor were allegations partly of fact and partly of law and the trial court had failed to get the fact portion separated from the law portion, it was bound to inquire of the respondent whether he admitted or denied the fact portion of the allegations. It did not do so and the reason given by it that "pleadings are clear as the suit is on the basis of mortgage" is not only factually incorrect but also insufficient. The written statement was not clear as explained earlier, there being no statement of the facts on the basis of which the status of agriculturist and creditor was claimed and alleged. Further, even if the pleadings were clear, R. 1 of O. 10 was mandatory and the respondent had to be asked whether he admitted or denied the claim made by the appellant in the written statement. The trial court proceeded at once to frame issues and the first issue was :

"Whether the defendant is an agriculturist and the plaintiff a creditor within the meaning of Ag. R. Act and D. R. Act ?" Subsequently it recorded evidence of the parties. The appellant himself came in the witness-box and deposed, inter alia, that he had a plot of land for which he paid Rs. 6/13/- as rent, he was cross-examined on behalf of the respondent but not a single question was put to him about his paying income-tax or his being assessed to income-tax or his having any other income. After recording the evidence the trial court held that the appellant was proved to be an agriculturist, but the respondent was not proved to be a creditor, within the meaning at the Agriculturists Relief Act and decreed the respondents suit for the principal with proportionate costs. It held that he was not entitled to interest because even though the appellant was an agriculturist he did not give to him a copy of the mortgage deed as required by S. 39 of the U.P. Agriculturists Relief Act. It seems that no question was raised before it whether the appellant could be held to be an agriculturist. "Agriculturist" is defined in Section 2(2) to mean, among other persons, - "(f) a person...... who pays rent for agricultural land not exceeding Rs. 500 per annum - Provided that .......... ......... ..... Provided also that no person shall be deemed to be an agriculturist If he is assessed to income tax, which, ........ ........ ........ ........ if he belongs to class (f) above, exceeds 5 per cent of his rent.... . ....."

(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 :-
"4. Because the defendant respondent is not an agriculturist. 5. Because the interest ought to have been allowed to the appellant".



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