I. S. ISRANI, J. - (1.) THIS revision petition has been filed against the order dated 23. 11. 82 passed by the learned Additional Civil Judge, Jaipur District, Jaipur in civil suit No. 43/77, whereby the application filed by the petitioner under Order 14 Rule 5 C. P. C. was dismissed.
(2.) THE plaintiff-non-petitioner filed a money suit for recovery of Rs. 800/- alongwith interest. THE defendant. petitioner, interalia raised a preliminary objection that the plaintiff non-petitioner is doing business of money lending and is a money lender within the meaning of Money Lenders Act. It is further objected that since the plaintiff does not possess any valid licence at the time of alleged transaction, as such the plaintiff was not entitled to file the suit. Issue No. 6 was framed, which reads as under:- "whether the plaintiff is a money lender and does business of money lending. "? THE burden of this issue was cast on the defendant. THE petitioner defendant filed an application praying that the onus of proof of the above issue should be changed and placed on the plaintiff and not on the defendant. THE trial court after hearing both the parties dismissed the said application on 23. 11. 82. None has appeared on behalf of the non-petitioner. The contention of Shri N. K. Mishra, learned counsel for the petitioner is that there is bar under section 11 of the Rajasthan Money Lenders Act, 1963 (hereinafter called as "the Act"), wherein it has been laid down that where a suit has been filed by a money lender to which a provision of this Act apply and the court is satisfied that at the time when loan or any part thereof to which the suit relates was advanced, the money lender did not hold a valid licence. It shall dismiss the suit forthwith without going into the merits of the claim and shall order the refund of the security, if any, without repayment. It is therefore, contended that since there is clear bar in the Act, the burden squarely lies upon the non petitioner plaintiff to prove that the provisions of this Act does not apply to the present suit and that he is therefore, authorised to file the suit for recovery of loan advanced to the petitioner. Reliance has been placed on a Full Bench decision of Patna High Court in Smt. Phoola Devi Vs. Mangtu Mahesri (1 ). A similar point arose in this matter under Bihar Money Lenders (Regulations of Transaction ). Act, 1939, wherein Sec. 4 provided a bar for filing suit for recovery of loan without registration. It was held that in view of the bar under the first paragraph of section 4 of the above said Act, the onus to prove as a matter of law that the suit for recovery of loan is entertainable under Section 4 without registration is on the plaintiff. A reference in this respect may also be made to the case of A. S. Nanji& Co. Vs. Jata Shankar (2 ). This was a case filed for possession of immovable property. An objection regarding limitation was raised by the defendant in his statement. It was held by the Apex Court that obviously where a person has right to sue within 3 years from the date of his coming to know of certain facts, it is for him to prove that he had the knowledge of the said fact on a particular day, for the said fact would be within his peculiar knowledge. It is further stated that it is the duty of the plaintiff to establish, at any rate prima facie that the suit is within time and is not barred by lapse of time. In the present case the non-petitioner plaintiff filed a suit for recovery of money and an objection was raised in the written statement that the suit was barred under the provisions of the Act and, therefore, the burden to prove that the suit for recovery of any loan in view of the restrictions placed by the Act, lies on the non-petitioner plaintiff and therefore, the burden for proving the issue should have been placed on the plaintiff and not on the defendant-petitioner. When a person filed a suit knowing fully well that a law has been enacted which provides bar for filing the suit, it is for the person who files suit that such bar is not applicable. In view of the above discussion, the revision petition is accepted and the order of the trial court dated 23. 11. 82 is set aside and the burden for proving issue No. 6 is cast on the plaintiff-non-petitioner. No order as to costs. . ;