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S.B. CIVIL WRIT PETITION NO.1550/2005.
Deen Mohammed Qureshi
Vs.
Ram Vallabh & Ors.
Date of Order :: 18th March 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Usman Ghani, for the petitioner.
.....
BY THE COURT:
At the outset the learned counsel for the petitioner
submitted that the show cause notices have been served but
nobody has appeared for the respondents; and that the
amount of Rs. 5,000/- as required by the order dated
25.08.2005 has indeed been deposited by the petitioner.
Thereafter, on merits, the learned counsel referred to the facts
of the case that an application was moved by the respondent
No.1 under Section 6 of the Rajasthan Relief of Agricultural
Indebtedness Act, 1957 (‘the Act of 1957’) while alleging an
amount of Rs. 14,377/- having been advanced by him to the
petitioner on 31.07.1992 carrying interest @ 2% per month;
and seeking recovery of the said amount with interest. The
learned counsel submitted that the application so moved was
opposed by the petitioner while denying the alleged
transaction and with the objection that he was not an
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agriculturist within the meaning of the Act of 1957 and hence,
the application was not competent.
The learned counsel referred to the observations made
in paragraph 9 of the order dated 31.03.2000 as passed by the
Debt Relief Court, Shahpura noticing the contention on the
part of the petitioner that he was not an agriculturist and hence
the application was not maintainable; and submitted that such
a contention has not even been dealt with by the learned Debt
Relief Court. The learned counsel further referred to the
provisions as contained in Section 6 of the Act of 1957 to point
out that any application thereunder has to contain a statement
about the debtor being an agriculturist and then referred to the
definition as contained in Section 2 (b) of the Act of 1957
signifying that the “agriculturist” for the purpose of the said Act
means a person who earns his livelihood wholly or mainly from
agriculture. With reference to the decision of this Court in the
case of Firm Jani Khushalji Jethaji Vs. Maharaj Bhopal Singh:
1964 RLW 118, the learned counsel contended that it has to
be precisely established that the debtor concerned derives
substantial part of his income from agriculture and mere
reference to the khatedari rights would not be sufficient; and
for the creditor-applicant having failed to establish such
fundamental facts, the application as made in this case,
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purportedly under Section 6 of the Act of 1957, was not
maintainable at all.
The learned counsel further contended that there had
been a specific objection of the petitioner about the
respondent No.1 being engaged in money lending business
and not having licence therefor but this contention has also not
been dealt with properly and the learned Revisional Court
merely brushed the said objection aside with the observations
that the petitioner had not stated the fact about the respondent
No.1 being a moneylender in his examination-in-chief. Learned
counsel contended that the fact of himself being a
moneylender having been admitted by the respondent No.1 in
his cross-examination, nothing further was required to be
stated by the petitioner.
None of the submissions as noticed above makes out a
case for admission of this writ petition. Merely because the
respondent has not appeared in response to the show cause
notice, it cannot be said that the petition is required to be
admitted for this reason alone and even without the petitioner
making out a case worth consideration. Similarly, if the
petitioner has deposited the amount of Rs. 5,000/-, that was
only in compliance of the order passed by this Court for the
purpose of stay of recovery proceedings until the matter was
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considered by the Court after the return of the notices. In fact,
the stay order was operative for 10 weeks from 25.08.2005
while the notices were made returnable within 6 weeks. Be
that as it may, such deposit does not by itself make out a case
for admission.
The contentions as urged on behalf of the petitioner:
one, on the maintainability of the application under Section 6
of the Act of 1957 on the ground that the petitioner is not an
agriculturist within the meaning of the said Act; and second,
about want of money lending licence with the respondent No.1
remain fundamentally baseless for the reason that such
objections were not as such taken in the reply as filed by the
petitioner before the Debt Relief Court.
In paragraph 1 of the application (Annex.1) as filed by
the creditor, it was precisely stated that the opposite party, i.e.,
the present petitioner, was an agriculturist within the meaning
of the Act of 1957. The petitioner did not put such an assertion
to specific denial. The vague and uncertain denial as unfolded
in paragraph 1 of the reply (Annex.2) had been in relation to
the particulars of the movable properties as stated in
paragraph 4 of the said application. It is also noticed that no
specific issue was framed in the trial of the said application on
the question as to whether the petitioner was an agriculturist. It
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is further noticed that such an argument, about want of
consideration of his objection by the Debt Relief Court was not
even advanced by the petitioner before the Revisional Court.
Neither the applicant-creditor was cross-examined on this
aspect of the matter nor the petitioner chose to make a
categoric assertion, of himself being not an agriculturist, in his
statements before the Court. There appears no reason to
consider determination of such a factual dispute in the writ
proceedings when no such objection had been taken in
precise terms before the Original Court and not even in the
arguments before the Revisional Court. The contention as
urged before this Court about the petitioner being not an
agriculturist could only be rejected.
The position is worse in regard to the other objection
about want of money lending licence with the creditor. In the
reply as filed before the Debt Relief Court, there is not even a
whisper about such objection nor any issue was framed in that
regard. The observations as made by the learned Revisional
Court that this aspect of the matter was not even suggested by
the petitioner in his examination-in-chief cannot be said to be
entirely unwarranted because such an objection was
suggested only before the Revisional Court and never any
attempt was made for raising a specific issue in that regard
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before the Original Court.
Even while finding that the objection regarding money
lending licence is not contained in the pleadings, in view of the
submissions as made by the learned counsel, the statement of
the creditor (Annex.3) has also been examined and it is
noticed that the creditor has definitely admitted of having no
money lending licence but then, read as a whole, his
statement is nothing more than admitting some stray acts of
lending the money; and is not of any admission of a regular
money lending business.
Taking an overall view of the matter, this Court finds no
substance in the contentions as attempted to be urged in this
writ petition. On the contrary, it appears that the learned
Revisional Court has taken a rather compassionate view of the
matter and has modified the quarterly installments as fixed by
the Debt Relief Court from Rs. 4,463.25 to Rs. 2,000/- per
month.
There being no force in the contentions sought to be
urged, the writ petition does not merit admission.
The writ petition deserves to be, and is hereby,
dismissed summarily.
(DINESH MAHESHWARI), J.
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Mohan/