@JUDGMENTTAG-ORDER
Swamikkannu, J.@mdashThe interesting point that confronts this Court in this civil revision petition is, whether the burden of proof lies on the
person, who seeks the benefits under any of the agrarian Acts which contained itself agrarian reforms or on the person who raised a contention that
the Petitioner, who seeks the benefits is not entitled to the said benefits of the agrarian enactments that had emanated from the floor of the State
Legislature as a reform giving certain benefits to the indebted agriculturist and agricultural labourer and small farmer in the State. In this regard it is
relevant to note that Act XXXI of 1976 (Tamil Nadu Debs Relief Act 1976) contained a provision u/s 12 regarding the burden of proof which
was omitted by Tamil Nadu Act V of 1980. Therefore it has become obligatory on the part of this Court now to observe about the burden of
proof in a case where the Respondent C. Munuswamy claims benefit under Tamil Nadu Act XXXI of 1976 in his counter that he bad filed with
reference to R.E.P. No. 485 of 1979 in Original Suit No. 115 of 1975 and subsequently filing another counter claiming benefits under the Tamil
Nadu Act XIII of l980. The lower Court while passing an order on 28th November, 1980 in this matter viz, R.B.P. No. 485 of 1979 in Original
Suit No. 115 of 1975 on the file of the Principal Subordinate Judge Salem, bad observed that the Respondent in R.E.P. No. 485 of 1979, viz. C.
Munuswamy cannot seek the benefit under either of these two enactments and therefore he has elected to claim the benefits only under Tamil
Nadu Act XIII of 1980 by leading some evidence on this aspect and as such the entire evidence available on record so far as the Appellant
concerned in this petition has to be looked into in that angle viz. whether C. Munuswamy the Respondent in R.B.P. No. 485 of 1979 is entitled to
the benefits under the provisions of Tamil Nadu Act XIII of 1980 or not.
2. The Petitioner Sri Saradha College Educational Trust represented by its Correspondent Yathiswari, Saradha College, had let in evidence
through its Correspondent''s Personal Assistant, P.W. 1, B. Viswanathan, stating that the Respondent C. Munuswamy herein has been working as
a building contractor and as a matter of fact he had been getting only an annual income of more than what is contemplated as the minimum under
the provisions of the Act XIII of 1980 and as such the Respondent Munuswamy is not entitled to the benefits of the provisions of the Tamil Nadu
Act XIII of 1980. He had been vehemently cross-examined. On behalf of the Respondent C. Munuswamy, R.W. 2 Ramaswamy was examined
and as a matter of fact the Respondent Munuswamy himself has got into the box as R.W. I and stated that he is getting an income which is less
than the limit prescribed under the provisions of Act XIII of 1980 viz. below Rs. 4,800 and as such he is entitled to the benefits of the provisions of
the enactment.
3. It is relevant in this connection to note debtor has been defined under the Act XIII of 1980 as one u/s 3(d) as any person from whom any debt
is due and whose annual house hold income does not exceed Rs. 4,800-. There is no documentary evidence at all adduced in this case and the
entire case rests on oral evidence available on record as mentioned above.
4. The point for consideration in this civil revision petition is by coming to the conclusion that the Respondent C. Munuswamy is not entitled to the
benefits of Tamil Nadu Act XIII of 1980, the lower Court had committed any illegality or irregularity or exercised the jurisdiction which is not
vested or exceeded its jurisdiction?
5. When the on ire case is looked from the above angle, it is seen that P.W. 1, B. Viswanathan, Personal Assistant of the Correspondent of
Saradha College, has deposed that he is the personal assistant of the Petitioner, who has filed this petition, under Order XXI, Rule 11 of the CPC
for proclaiming and selling the properly in question. In fact the order under revision has declared that the Petitioner-College is entitled to proclaim
and sell he property in question. The petition under Order XXI, Rules 64 and 66 of the CPC was filed by the Petitioner with the allegation that the
house in question exclusively belong to the Respondent-revision Petitioner herein. The decree amount was Rs. 13,556.56 and interest on Rs.
13,144:93 at 9 per cent from 27th February 1975 to 10th August 1979 bad worked itself out to the tune of. Rs. 3,500 totalling in all Rs.
17,056f.56 and the cost was Rs. 2,443.20. So the proceedings were taken by the decree-holder against the property of the judgment-debtor.
6. It is specifically stated by P.W. 1, B. Viswanathan, Personal Assistant of the Correspondent of Saradha College Educational Trust that the
house in question has been let out to a tenant so far as the upstairs portion is concerned and towards rent of the said portion of the house belonging
to the judgment-debtor, a sum of Rs. 15 was being received by the Respondent per month According to P.W. 1, the house is worth 30,000 to Rs.
40,000/. Nothing material has been elicited in the cross-examination of P.W. 1 which will entitle the judgment-debtor-revision Petitioner herein to
uphold, his contention that he is entitled to the benefit of the provisions of Act XIII of 1980. The self-interested testimony emanating from the
revision Petitioner herein as R.W. 1 cannot be given much weight as well as the evidence of R.W. 2 also in that his evidence discloses that he is
interested in R.W. 1. Therefore in coming to the conclusion that the revision Petitioner is not entitled to the benefits of the provisions of Act XIII of
1980 this Court holds that the lower Court had not committed any error much less illegality or irregularity or error regarding jurisdiction.
7. It is also relevant in this connection to refer is this judgment with reference to the case law on the subject by both the learned Counsel far the
Petitioner. Mr. R. Sundaralingam and Mr. S. Jagedeesan learned Counsel for the Respondent have been of a much enlightening hearing and it is
but necessary that those decisions should also form part of this order Mr. R Sundaralingam referred to the decision in M/s. Muthukumam Pillai son
v. T.N.V. Nilakanta Chettiar (1977) T.L.W.J. 404 where in it was held that the burden of proof u/s 3 of the Tamil Nadu Agriculturists Relief Act
is on the Plaintiff that he has to prove that the Defendants are assessed to income tax and there by deprive them of the benefits contemplated under
the said enactment. Mr. R. Sundaralingam also refers to the decision is Arummagha Water v. Kumara Pillai (1981) T.L.N.J. 3 for the proposition
that so far us Section 3(2) of, the Act IV of 1931 is concerned the aspect regarding the agricultural agrarian or otherwise and the burden of
proving the said aspect is on the debtor.
8. On the other band Mr .S. Jagadeesan learned Counsel for the Respondent refers to the aspect that Section 12 dealing with burden of proof in
the Tamil Nadu Act has been deleted by the provisions of Act V of 1980 which will enable us to understand that the burden of proof depends on
each and every case as the fact of legal evidence exhibit them selves in a proceeding. He also refers to the decision in Chidambaram v. State of
Tamil Nadu ILR (1977) Mad. 135, 150 for the observations which runs as follows:
In conclusion Mr. Venugopal pleaded that some of the terms of the enactment are most unreasonable and ruinous to the entire profession of money
lending and pawn broking. Our attention was drawn particularly to Section 4 which requires a creditor to redeem the property from the possession
of the transferee and produce it for being banded over to the debtor. After redemption the creditor is bound to return it to the debtor. He also
referred to Section 12 which provided that the burden of proving that the debtor is not entitled to the protection of the Act lies on the creditor. It
was submitted that the burden of proving that a person is entitled to some exemption from the operation of the Act is on the person who pleads
exemption. It is virtually impossible, for the creditor to prove that the debtor does not come within the exemption as the facts wilt be within the
knowledge of the debtor and will not be available to the creditor. Those two provisions may make the position of the creditor difficult and from the
point of view of money-lenders and pawn brokers unreasonable. But that would not make the legislation invalid the Petitioners want relief from the
harsh provisions they will have to approach the legislature and not the court. Taking the interest of the community as a whole there can be no doubt
that the impugned legislation is a beneficial one.
He submitted that in view of the above observations by the Court the provisions u/s 12 of the Act XXXI of 1976 was deleted by Tamil Nadu Act
V of 1980. Mr. S. Jagadeesan also refers to the decision in Jaganatha Chettiar v. Padma Financial Corporation (1978) T.L.N.J. 8 for the
proposition that the person claiming protection under the Act need not prove that be is entitled to the benefits of the Tamil Nadu Indebted persons
(Temporary Relief) Act, 1976 and that the burden was on the Plaintiff to prove, that he was rot entitled to the protection but yet by referring to this
decision he would be dislodged to contend that each and every case has to be found with proper prospective in relation to the burden of proof and
it cannot as if that the burden of proof is only on a particular side whether it is on the side of the Plaintiff or the Defendant or the Petitioner or the
Respondent or the claimant or the objector or the person who is being represented by the Government or by the quasi Government Organisation
and he would further submit that the entire discretion of shifting the evidence as to the actual Appreciation regarding the point at issue lies on the
Court and it is the Court which has come to conclusion regarding the conferring of the benefits under the provisions of the Special enactment and
especially the omission of Section 12 in the Act, of 1976 (Tamil Nadu Debt Relief Act, 1976) by the Tamil Nadu Act V of 1980 on the basis of
the observations of the Court itself would reveal that the legal approach is one which has to be guided by judicature discretion and net by the letter
of law as it is so far as the burden of proof is concerned. I am unable to reject the above said contusion raised on behalf of the Respondent by Mr.
S. Jagadeesan wholly unsustainable. The observation that has been made with respect to the burden of proof is applicable to this case in which
there no to specific provision provided in the very enactment it self relating to burden of proof because it is only the letter and spirit of the
provisions of an enactment regarding the burden of proof that has to be given effect but in the absence of the same it is only the discretion and of
course that discretion must be pure and simple a judicial discretion and nothing else. On a careful consideration of the respective contention it is
sufficient at this stage to state that this Court need not interfere in the order under revision aid as such it becomes one which is not subject to the
revisional jurisdiction of this Court and is such this civil revision petition is liable be dismissed but Under the circumstances, there is no order as to
costs.
