K. S. LODHA, J. - (1.) THIS is a plaintiffs' second appeal in a suit for recovery of money. The plaintiffs Hem Raj and Bhinvraj filed a suit against the defendants Heera Lal and Durga Ram on the basis of a 'khata' for a sum of Rs. 4401/-said to have been executed by the defendants on 13. 1. 74 after going through their dealings with the plaintiffs. Thereafter, they re-paid a sum of Rs 51/- but further took loans on two occasions in the sum of Rs. 28/- and 100/- leaving a balance of Rs 6186/-out-standing against them. Since that amount was not paid the plaintiffs were obliged to file the suit. The defendants denied the execution of the 'khata' and the dealings with the plaintiffs, inter alia, they also pleaded that the plaintiffs, were money lenders but had not complied with sections 22 and 23 of the Money Lenders' Act and had further pleaded that they were agriculturists and in view of section 47 of the Rajasthan Relief of Agricultural Indebtedness Act, the suit was not maintainable. After framing the necessary issues and taking the evidence of the parties the trial court found the execution of the 'khata' to be proved. However, it found that although the plaintiffs were money lenders and had money lending licence they did not comply with the provisions of sections 22 and 23 of the Money Lenders Act and therefore, the suit was liable to be dismissed. Issue no. 9 (a) had been framed on the defendants' plea that since they were agriculturists the suit was not maintainable against them but at the time of the arguments in the suit the defendants did not press this issue and, therefore, it was decided against them. Thus, although all the other issues had been decided in favour of the plaintiffs, the suit was dismissed on the technical ground that the plaintiffs had not complied with sections 22 and 23 of the Money Lenders Act, the suit could not be maintained. Aggrieved of this dismissal of the suit by the learned Addl. Civil Judge, Pali by judgment and decree dated 23 1. 82, the plaintiffs went up in appeal before the learned District Judge, Pali, who affirmed the decree of the lower court by his judgment and decree dated 16. 12. 83. The plaintiffs have, therefore, come up before this Court in this second appeal.
(2.) ALTHOUGH, in the memo of appeal the substantial questions of law framed by the learned counsel for the appellants revolved around issue no. 7, namely, non-compliance with sections 22 and 23 of the Money Lenders Act, the learned counsel for the appellants has moved en application under O. XLI rule 1 and 3 read with O. VI rule 17 C. P. C. praying leave to amend the memo of appeal by urging a ground that the suit itself was not maintainable under section 47 of the Money Lenders Act, inasmuch as the defendants were admittedly agriculturists. I have heard the learned counsel for the parties in respect of this application. My attention has been drawn by the learned counsel for the appellants to the ground raised by defendants themselves in the written statement alleging that the suit was not maintainable against them as they were agriculturists. He further urged that although the plaintiffs did not file any rejoinder contesting this allegation issue no. 9 (a) was framed by the trial court but unfortunately it was not pressed at the time of arguments by the learned counsel for the defendants. He further brought to my notice that P. W. I Babu Lal has stated that Heera Lal was an agriculturist, both at the time when he took the loan as also at the time Babu Lal was giving evidence. The defendant Heera Lal, D W. 1 also had stated that he was an agriculturist. It is nobody's case that the defendants earned their livelihood by any other means and, therefore, there was sufficient material on the record to hold that the defendants were agriculturists but the courts below failed to determine issue 9 (a) merely because it was not pressed before them. In these circumstances when there was material before the courts below to show that the defendants were agriculturists, the suit was clearly barred under sec. 47 of the Money Lenders Act. The courts below should have returned the plaint or should have directed the plaintiffs to take proceedings before the Debt Relief Court but they could not have dismissed the suit on merits and, therefore, the plaintiffs are entitled to raise this substantial question of law before this Court even by amendment of the original memo of appeal. The learned counsel for the respondents could not challenge the facts stated above. It was defendants' own plea that they were agriculturists. That being so, it was the duty of the court to apply its mind to the legal provisions contained in the Money Lenders Act and Relief of Agricultural Indebtedness Act It, therefore, clearly appears to be a substantial question of law for consideration in this second appeal. I am, therefore, inclined to allow the amendment. The amendment is, therefore, allowed. After the amendment as stated above, I have further heard the learned counsel for the parties. As already stated above, it is a substantial question of law whether in these circumstances the courts below should have proceeded with the suit or should have directed the return of the plaint for proceedings being taken before the Debt Relief Court. Section 47 of the Money Lenders Act reads as under:- "section 47. Provisions of Rajasthan Act 28 of 1957 saved.- Nothing in this Act shall affect any of the provisions of the Rajasthan Relief of Agricultural Indebtedness Act, 1957 (Rajasthan Act 28 of 1957), and no court shall entertain or proceed under this Act with any suit or proceeding relating to any loan in respect of which proceedings can be taken under the said Act. " A bare reading of this section would go to show that the Rajasthan Relief of Agricultural Indebtedness Act will have the over-riding effect on the provisions of the Money Lenders Act and no court shall entertain any suit or proceedings relating to any loan in respect of which proceedings can be taken under the said Act. The plaintiffs' suit, therefore, should not have been dismissed but they should have been directed to take recourse to the Relief of Agricultural Indebtedness Act.
(3.) I, therefore, allow this appeal, set aside the judgments of the two courts below and direct that the plaint be returned to the plaintiffs for their taking proceedings before the Debt Relief Court in accordance with the provisions of the Rajasthan Relief of Agricultural Indebtedness Act. In the circumstances of the case, there shall be no order as to costs. .;