MITAL, CJ. - (1.) SMT. Prayagwati filed a suit for recovery of Rs. 34,000/- on the basis of pronote for Rs. 20,000/- executed by Kalyan Prasad and Mohan Lal. When the amount was not paid, she filed a suit for recovery of the amount and in the suit pleaded that she was not a money lender. In the written statement, the defendants took the objection that the plaintiff was a money lender and that she did not possess a money lender's license and thus was not entitled to file the suit. In my event it was further pleaded that she had not complied with the provisions of Sections 22 and 23 of the Rajasthan Money Lenders Act, 1963 (for short 'the Act' ). A composite issue No. l was framed by the trial court in this behalf and burden of proof was fixed on the defendants.
(2.) LATER on, the defendants filed an application for fixing the burden of proof on the plaintiff. The application was allowed by the impugned order dated 6th of July, 1994 and the burden of proof was fixed on the plaintiff. This is plaintiffs revision. It is argued on behalf of the plaintiff that she had clearly pleaded that she was not a money lender and if there is only one or few transactions of giving loan like the one in dispute, the Act is not applicable and once the Act is not applicable, it is not incumbent on the plaintiff to obtain license under section 11 of the Act nor she is to maintain accounts etc. as is provided by Sections 22 and 23 of the Act and thus the trial Court was in error in fixing burden of proof on the plaintiff. On the other hand, it is argued by the defendants that burden of proof has rightly been fixed on the plaintiff. After hearing the learned counsel for the parties, I am of the view that the framing of composite issue would cause manifest injustice to the parties because partly the burden or proof has to be on the plaintiff and partly on the defendants. If the plaintiff is not a money lender, the Act will not be applicable and if she is a money lender, then the Act would be applicable. In the plaint, the plaintiff has clearly stated that she is not a money lender meaning thereby that probably this was the only loan transaction entered into by her and such a person would not be money lender within the meaning for the Act. For this the burden has to be on the defendants because they have raised the plea that the plaintiff is a money lender. As regards the other matters, they will arise only if the plaintiff is proved to be a money lender. In that case, the burden for the remaining part would be on the plaintiff.
(3.) THE learned counsel for the respondents relied on a decision of this Court in Hari Narain Tiwari vs. Damodar Busar (1) for the proposition that burden of the first part should also have been on the plaintiff. A reading of the aforesaid judgment shows that the court proceeded on the assumption that the suit has been filed by a money lender and the provisions of the Act were applicable. Accordingly, the said decision is clearly distinguished. For the reasons recorded above, I am of the view that issue No. l deserves to be bifurcated into the following two issues as follows: - (1) Whether the plaintiff is a money lender? , O. P. on the defendants. (l-A )If it is proved that the plaintiff is a money lender, whether she has a license for doing money lending business and if she has money lending business license, whether she has complied with the provisions of Sections 22 and 23 of the Act? O. P. on the plaintiff. With this order, the revision petition stands disposed of. Parties through their counsel are directed to appear before the trial Court on 28th Nov. 1994. . ;