ORDER
S.S. Subramani, J.
1. Plaintiff in O.S. No. 2228 of 1981, on the file of the District Munsif’s Court, Coimbatore, is the revision petitioner.
2. The suit filed by him was one for recovery of the amount of Rs. 2,000 with interest, from the defendant on the basis of Ex.A-1 promissory note dated 28.7.1975.
3. The contention of the defendant was that he has not executed the promissory note, and that there was some earlier transaction between the same parties, and the plaintiff has misused some of the papers which had been executed by him for that purpose. He also claimed the benefit of the Debt Relief Act.
4. The trial court, as per judgment dated 25.8.1986 held that the promissory note executed by the defendant is supported by consideration and that the defendant is not entitled to the benefit of the Debt Relief Act. The suit was decreed as prayed for.
5. The matter was taken up in appeal before the District Judge, Coimbatore, by the defendant, in A.S. No. 153 of 1986.
6. Before the lower appellate court it was argued that because of Section 96(4) of the Code of Civil Procedure, the learned Judge has to consider the jurisdiction to decide the appeal since the amount covered by the suit is less than Rs. 3,000.
7. Both the parties argued the matter, both on question of fact and on law.
8. The lower appellate court confirmed the finding regarding the execution of the promissory note and the passing of consideration, but held that the defendant is entitled to the benefit of the Debt Relief Act, and held that the debt stands discharged in view of the provisions of the Act.
9. In this revision, the plaintiff has challenged the jurisdiction of the lower appellate court to decide the appeal and also the merits of the case, regarding the finding that the defendant is entitled to the benefits of the Debt Relief Act.
10. Regarding the jurisdiction, I do not think the plaintiff can successfully canvass the same before this Court. It cannot be said that the lower appellate court had an inherent lack of jurisdiction. At any rate, by arguing the appeal both on questions of fact and on law, the petitioner had a better opportunity to argue the case though the decision went against him. Having subjected himself to the jurisdiction of the court, it is too late for him to contend in this revision that the first appeal was decided without jurisdiction.
11. The only other question that lies for consideration is, whether the decision of the lower appellate court giving the benefit of the Debt Relief Act to the defendant is legally correct.
12. For deciding this question, let me extract what the learned District Judge has stated (in paragraph 9):
…As per Section 3(d) of the said Act debtor means any person from whom any debt is due and whose annual household income does not exceed Rs. 4,800 subject to the conditions that he is not assessed to income-tax or sales-tax or house-tax or profession-tax. Explanation 3 (vi) says the debtor should not own immovable property other than agricultural lands whose value is more than Rs. 25,000. There can be no doubt that the defendant is a debtor within the meaning of the Act. There is no proof that the defendant is deriving an annual income of more than Rs. 4,800.
Whether this conclusion can be supported, is to be seen. It is settled law that when a finding is entered without any evidence, that is a reason to interfere in revision. Likewise, when a burden of proof is wrongly cast on a party, that is also a ground to interfere in the case. The learned District Judge assumed, “there can be no doubt that the defendant is a debtor within the meaning of the Act.” It is this finding that has affected the decision.
13. ‘Debtor’ is defined under Act 13 of 1980. Whether he comes within that definition must be proved by a debtor. For that purpose, there must be at least prima facie evidence that he is entitled to claim the benefit and that he is not disqualified from claiming that right.
14. In B.R. Jaganatha Chettiar v. Padma Financial Corporation 1978 T.L.N.J. 8, their Lordships (Mr. Justice Ismail) (as he then was), was considering the scope of Debt Relief Act, 1976. In that Act, there was a provision that it is for the creditor to prove that the debtor is not entitled to the benefit of the Act. So, the entire burden was, even as per the Statute, cast on the creditor. The difficulty of proving the negative fact was thought by the Legislature when Act 13 of 1980 was enacted, and that Provision was deleted. In 1978 T.L.N.J. 8, the learned Judge held that the burden is on the plaintiff. Thereafter, law has changed.
15. In C. Munuswamy v. Sri Sarada College Educational Trust (1983)1 M.L.J. 95, it has been held thus:
With respect to burden of proof, there is no specific provision in the enactment itself relating to burden of proof, because it is only the letter and spirit of the provisions of the enactment regarding the burden of proof that has to be given effect; but in the absence of the same it is only a matter of discretion and of course, that discretion must be judicial discretion pure and simple and nothing else.
In Lakshmi Animal v. Sundaramurthi Chetti (1984)2 M.L.J. 47, Nainar Sundaram, J. (as he then was), held thus:
…It is well-settled that where a person is shown to come apparently within the meaning of ‘debtor’ under the debt relief statutes, the burden of proving that he is disqualified under one or the other provision lies on the creditor.
A reading of this decision shows that there must be something before court to show that the person claiming the benefit of the Act is apparently entitled to that Act. It, therefore, follows that there must be some evidence before court that he is entitled to the benefit of the Act. Therefore, the learned Judge held that when the person is shown apparently to come within the meaning of ‘debtor’ the burden of proving the disqualification is on the other side. The said view is further reiterated in the decision reported in T.A. Subramania Chettiar v. Babi Animal and Ors. (1990)2 L.W. 120. In the said decision, Srinivasan, J. has held that the initial burden of proving that he is a debtor is on the person claiming the right. If that evidence cannot be accepted, or if there is no evidence, merely on the ground that the burden is on the plaintiff to prove otherwise, it does not confer the benefit on the defendant. His Lordship held thus:
The burden is on the defendants to prove that they fall within the definition of “debtor” under Section 3(d) of the Act. Only after the said burden is discharged, the onus will shift to the creditors to prove that the debtors fall within the exceptions mentioned in the proviso. The defendants have failed to discharge the burden cast on them under Section 3(d) of the Act. Hence, the question of the creditors proving the exception does not arise.
In that case, the learned Judge further held that if the court has cast the burden wrongly, that is a ground for exercising revisional powers. It is on the basis of this settled law, we have to decide whether the claim of the defendant that he is a debtor can be accepted.
16. As stated above, the learned District Judge assumed that the defendant is a ‘debtor’ by reading the definition alone. But when we come to the evidence of P.W.1, it cannot be said that the defendant has proved that he is prima facie entitled to the benefit. Admittedly, the defendant is owning a property purchased by him under Ex.B-1 in 1978, for a sum of Rs. 22,000. Regarding the income from the property, there is no evidence. It is for the defendant to prove that he is not getting any income or that the income that he is getting is less than Rs. 4,800 per annum. In fact, he has not spoken anything about his income. His only case is that he is not getting Rs. 1,000 per mensem as his income. Admittedly, the defendant is in possession of a property worth not less than Rs. 22,000. It is in evidence that after the purchase, a well was sunk in that property. It has also come out in evidence that he has an undivided share in the house which is now enjoyed by his father. The value of it is not made mention of. That apart, in the property purchased by him under Ex.B-1, there are few coconut trees. The income therefrom is also not disclosed. So, when there is absolutely no evidence regarding the income that he is getting the property owned by him or that the defendant’s income is less than Rs. 4,800 per annum it cannot be said that he comes within the definition of ‘debtor’. What is the income which he gets, is within his personal knowledge. It is for him to speak before court regarding his income. He has failed to do so.
17. There is also one more circumstance against him. In the suit, he denied execution of the promissory note and also put forward some defence. Both the courts below held that his evidence cannot be believed. So, he is a person who gives false evidence before court. It is illegal to confer the benefit on such a person. Therefore, the decision of the lower appellate court that the defendant is entitled to the benefit of the Tamil Nadu Debt Relief Act is vitiated, and I accordingly set aside the same.
18. In the result, this civil revision petition is allowed, and the judgment of the trial court is restored with costs throughout.