ORDER
Dubagunta Subrahmanyam, J.
1. The revision petition is filed
by the defendant against the judgment and decree dated 1-2-2001 in SC No.17 of 1998 on the file of the Senior Civil Judge, Nalgonda. CMP11579 of 2002 is filed to permit the revision petitioner to take the additional ground in the revision petition to the effect that the Trial Court ought to have framed and decided the legal issue under Section 9 of the A.P. (Telangana Area) Money Lenders Act, 1349 Fasli as to whether the plaintiff is a money lender and what is the legal effect thereof if he is proved to be a money lender and whether the suit SC 17 of 1998 is maintainable.
2. The revision petitioner is a practicing advocate. The respondent filed the suit stating that on 27-3-1995, the defendant borrowed Rs. 5,000/- from the plaintiff and executed suit promissory note Ex.A1 and did not discharge the debt in spite of demands. The defendant filed written statement denying execution of the suit promissory note Ex.A1. He pleaded that he was the advocate of the plaintiff in two criminal cases, the plaintiff did not pay him the fees due, a quarrel took place between them regarding the fee and therefore, the plaintiff brought into existence Ex.A1 promissory note. The plaintiff denied that the defendant was his advocate in any criminal case. The lower Court stated in its judgment that the defendant did not let in evidence to show that he appeared for the plaintiff in any criminal case. Therefore his version regarding the circumstances under which the suit promissory note was allegedly brought into existence by the plaintiff is belied by the evidence on record. The plaintiff examined himself as PW1 before the Trial Court. Defendant examined himself as DW1 before the Trial Court. According to the plaintiff, defendant borrowed the amount and executed suit promissory note and that the defendant himself is the scribe of Ex.A1. In his evidence the defendant denied that he executed the promissory note. He also denied his alleged signature in Ex.A1. On a consideration of
entire evidence, the Trial Court believed the evidence of the plaintiff and decreed the suit. Aggrieved by that order, the defendant preferred the present revision petition.
3. The learned Counsel for the revision petitioner contended that even according to the evidence of plaintiff as PW1, his sister was present at the time of execution of promissory note and she was not examined by the plaintiff. The sister of the plaintiff is not an attestor of suit promissory note Ex.A1. Non-examination of the sister of plaintiff is not fatal to the case of the plaintiff.
4. On appreciating the evidence of plaintiff as well as the defendant and after comparison of the admitted signatures of the defendant available in the Court record, the Trial Court gave a categorical finding of fact to the effect that Ex.A1 promissory note is true and genuine and defendant executed it. There are no reasons for me to interfere with the finding of fact recorded by the Trial Court which is based on evidence on record.
5. As per Section 9 of A.P. Telangana Area Money Lenders Act, 1349 Fasli, in a suit relating to a loan, the Court shall frame and decide the issue whether the money lender is a money lender as defined in Section 2(7) of the Act and whether he has complied with the provisions of Sections 3, 5 and 6 of the Act. As per the above provisions, a money lender is bound to obtain a licence from the competent authority for doing money lending business.
6. The interim application is filed to permit the revision petitioner to raise the said plea attracting the provision under Section 9 of the Act. It is to be stated that the said petition is not filed to permit the defendant to amend his written statement. It is stated in the petition that the question to be raised by the revision petitioner is a
pure legal question. I am unable to agree with the said contention. Whether the plaintiff is a money lender or not and whether the plaintiff obtained a licence as required under the provisions of the said Act are questions of fact and not pure questions of law. No explanation is given in the petition by the revision petitioner why he did not take such a plea in the Trial Court. Even during the course of his evidence as DW1 he did not raise the said question. At this stage, it is not desirable to permit the revision petitioner to raise such a question which involves investigation of facts and recording of oral and documentary evidence.
7. The learned Counsel in this regard relied upon a judgment of a learned single Judge of this Court reported in A. Agaiah v. Deepchand Singh, 1972 APLJ 17 (NRC). In the above judgment it was held that Section 9(1) calls upon every Court, if it is dealing with a suit relating to a loan, to find out whether the lender of the money is a money lender as defined in the Act and whether he has complied with the requirements mentioned therein. It was further held that even if the defendant has remained ex parte, the Court is bound to decide that aspect.
8. However, there is a judgment of a Full Bench of this Court reported in Aziz Ahmed Khan v. I.A. Patel, . His Lordship Sri Justice A. Sambasive Rao who rendered the decision in Agaiah’s case referred to above is also one of the Judges who rendered the above Full Bench decision. In Full Bench decision it is held that wherein a suit relating to a loan, the defendant questions the maintainability of the suit under Section 9 of the Act on the ground that the plaintiff is a money lender and he is carrying on his business without obtaining licnece under the Act, the framing of the issue in this regard and decision thereon is mandatory on the part of the
Court. It was further held that the decree passed without consideration of this main question is illegal. In view of this decision of Full Bench, decision is Agaiah’s case stood overruled.
9. In the present case, as already noticed, the revision petitioner-defendant did not take such a plea in his written statement. Therefore, in the absence of such a plea, no fault can be found with the lower Court for not framing an issue as contemplated by Section 9 of the Act. In this regard, it is also necessary to point out that in the plaint, the plaintiff pleaded that he is not a money lender which fact was not disputed in the written statement of the defendant.
10. The learned Counsel for the revision petitioner submits that the defendant had taken the plea that the suit is not maintainable. It is a general plea. He did not dispute that the plaintiff is not a money lender. He did not take the plea that the plaintiff is a money lender and the plaintiff has not obtained a licence and therefore, the suit is not maintainable. There must be a specific plea for framing an appropriate issue by the Trial Court.
11. The learned Counsel for the petitioner contends that the Trial Court compared the admitted signatures of the defendant with the disputed signatures and it is bad in law. It is to be stated that the judgment of the Trial Court is not based on mere comparison. The Trial Court considered the evidence of the plaintiff as well as the defendant and gave the finding that the defendant executed the suit promissory note. Therefore, just because the Trial Court also compared the disputed signatures with the admitted signatures, the judgment of the Trial Court is not liable to be set aside. I do not find any merits either in the revision petition or in CMP 11579 of 2002.
12. In the result, the revision petition as well as CMP 11579 of 2002 are dismissed.