Ramratna Singh, J.:— This appeal by the plaintiff is directed against the judgment and decree of the Subordinate Judge of Bihar sharit, reversing the judgment and decree of the Additional Munsif and dismissing the plaintiff's suit for arrears of house rent on the basis of a registered kerayanama. It is admitted that the defendants borrowed a sum of Rs. 2,500/- from the plaintiff, who was not registered as a money-lender under the Bihar Money-Lenders Act, 1938 (hereinafter referred to as ‘the 1938 Act’), and executed a mortgage by conditional sale (bai-wul-wafa) on the 5th February, 1953 in respect or a house. On the same date, there was a lease back in the form of the Kerayanama under which the defendants agreed to pay to the plaintiff Rs. 25/- per month as rent of the house. As no rent was paid, the plaintiff-appellant instituted this suit.

2. The defendant-respondents resisted the claim of the plaintiff-appellant on three groundsss (1) the suit, being, in essence, a suit for realisation of interest, could not be maintained independently of the claim for the mortgage money,- (2) legally, the plaintiff was entitled to get Interest at 9 per cent per annum on the mortgage money, but under the kerayanama he was to get interest at 12 per cent per annum as rent and (3) inasmuch as there was relationship of creditor and debtor and the plaintiff was not registered as a money-lender under the 1938 Act, the suit was hit by Section 4 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 (hereinafter referred to as ‘the 1939 Act.’). It was conceded before the learned Munsif that were was relationship of creditor and debtor between the parties, and, therefore, in view of a decision of this Court in Ramnarain Passi v. Sukhi Tiwary, AIR 1957 Pat 24, the Teamed Munsif granted a decree for damages for use and occupation at the rate of 9 per cent per annum on the amount advanced under the mortgage bond, instead of the amount claimed as rent, which worked out at 1Z per cent per annum on that amount.

3. On appeal by the defendants, the learned Subordinate Judge agreed with the learned Munsif that the plaintiff could maintain the suit to recover interest at 9 per cent per annum on the amount advanced; but he dismissed the suit on the ground that it was hit by Section 4 of the 1939 Act, inasmuch as the plaintiff did was not a professional money-lender.

4. Mr. Lal Narayan Sinha, learned Advocate for the appellant, submitted that, inasmuch as the provision contained in Section 4 of the 1939 Act was an exception to the provisions in Section 9 of the CPC, it was for the defendants to plead and prove this exception, and not for the plaintiff to plead or prove exemption from the penalty provided in the said Section 4. On the other hand, Mr. G.U Mukherjee, learned Advocate for the respondents, supported; the view of the learned Subordinate Judge and contended-that it was the duty of the plaintiff to plead and prove that he was exempted from the operation of Section 4. In my opinion, the submission of Mr. Sinha is well-founded. Section 4 of the 1939 Act enacts as follows:

“No Court shall entertain a suit by a Money-lender top the recovery of a loan advanced by him after the commencement of this Act unless such money-lender was registered under the Bihar Money-Lenders Act, 1938, at the time when such loan was advanced;

Provided that such a suit shall be entertainable if the loan to which the suit relates was advanced by the moneylender at any time before the expiration of six months after the date of the commencement of this Act and if he is granted a certificate of registration under Section 5 of the Bihar Money-Lenders Act, 1938 at any time before the expiration of the said six months.”

5. It is well-settled that the expression “money-lender’ in this section means a professional money-lender see wit, Surajbansi v. Mt. Larho, ILR 25 Pat 90 : (AIR 1946 Pat 310). This was also the view taken recently in a Bench decision of this Court in Dwarkadas Marwari v. Kalipada Dey, 1959 BLJR 145. It was held in that case that the business of money-lending imports a motion of system, repetition and continuity, and that is the proper legal test to be applied for the purpose of finding out whether the plaintiff is a professional money-lender and whether the suit is barred by virtue of the provisions of Section 4 of the Bihar Money-Lenders Act.

6. A man does not become a money-lender by reasons of occasional loans to relations, friends or acquaintances, nor does he become a money-lender merely because on one or several isolated occasions he may lend money to strangers. There must be more than occasional and disconnected loans to justify a finding that the plaintiff is a professional moneylender and the bar of Section 4 of the Bihar Money-Lenders Act operates. Mr. Mukherjee did not question the correctness of these decisions.

7. On the question of onus, Mr. Lalnarayan Sinha relied on the observation of their Lordships of the Privy Council in Ramayya v. Lakshmi Narayana, AIR 1934 PC 84 to the effect that

“the terms of Section 9 of the CPC, lay down a general rule in favour of the jurisdiction of the civil Court, and that the burden of proof is on the party who maintains an exception to the general rule”.

8. There can be no doubt that, but for the provisions of the 1939 Act, a money-lender can institute a suit for recovery of any loan, or any interest thereon, in any Civil court having pecuniary and territorial jurisdiction. Section 4 or the 1939 Act bars the jurisdiction of the Civil Court to entertain such a suit in certain cases, and, therefore, the burden of proof is on the party who pleads this bar, which is an exception to the general rule contained in section of the Code of Civil Procedure. In other words, in order to bring the suit of a money-lender within the mischief of the said Section 4, the defendant must prove that he is a professional money-lender. And after the defendant has done so, the plaintiff may rely on the exemption contained in any notification issued under Section 3 of the 1938 Act, which empowers the State Government to exempt any moneylender from the provisions of that Act, including the provision contained in Section 5 for registration of money-lenders.

9. Mr. G.C Mukherjee, however, relied on several cases in support of his contention that it was the duty of the plaintiff to plead and prove that he was not a professional money-lender. All these cases, except one, were decided by some learned Judges of this Court sitting singly; but the facts in these cases were absolutely different the facts of She case in Noor Mohammad v. Haridas*, AIR 1953 Pat 140 will appear from the following passage in their Lordships' Judgment:

“On the 19th of July, 1939, under section 3 of the Bihar Money-Lenders Act, 1938 (Bihar Act 111 of 1938) the Governor of Bihar was pleased to exempt in all areas of the Chota Nagpur Division a casual money-lender whose money-lending did not exceed the total amount of Rs. 500/- in cash in any particular year. On the strength of this notification it is urged that the proforma defendant was a casual money-lender within the meaning of that notification and, therefore, the plaintiff, in whose name the hand note was endorsed by the proforma defendant, was entitled to maintain his suit and the bar of Section 4 did not apply to such a case. The answer to that question is that there is no material brought on the record to show that the proforma defendant was a casual money-lender and that his money-lending business did not exceed Rs. 500/- a year. ‘The plaintiff wants to take advantage of the exception, and it was for him, and not for the defendant, to have produced evidence to show that he was covered by the exception’.”

10. Mr. Mukherjee laid stress on the last sentence of this passage underlined (here into ‘ ’) by me. But it will be noticed that the exception referred to therein was the exception contained in the notification issued under Section 3 of the 1938 Act, in respect of loans not exceeding Rs. 500/-, and not in respect of Section 4 of the 1939 Act. In view of the well-settled view that the requirement for registration as a moneylender for the purposes of Section 4 of the 1939 Act is meant for professional money-lenders only, the exemption allowed by the notification is an exception to a case to which the provisions of the said Section 4 have been found to be applicable; and the aforesaid observation of their Lordships applies to such exceptions only.

11. The bar of Section 4 itself is, however, an exception to the provisions of Section 9 of the CPC, and this exception has to be proved by the party who pleads it, that is, the defendants in the present suit. The facts of the other cases on which Mr. Mukherjee relied show that in those cases as well the plaintiff creditor relied on the exemption contained in notifications issued under Section 3 of the 1938 Act. In Ugrah Dusadh… v. Inderdayal Singh…., AIR 1954 Pat 301, Misra, J. said:

“In the present case, however, I find that the Courts below have come to the conclusion that the plaintiff had advanced more than a sum of Rs. 500/- in the year in question to a number of persons other than the present defendant. In these circumstances, onus lay upon the plaintiff to prove the circumstances in which he could claim exemption from the provisions made in Section 4, Bihar Money Lenders Act”

12. In Bijaylal Agarwala v. Pramatha Nath Dutta, 1957 Pat LR 259, Ahmad, J. followed the decision in Noor Mohammad's case, AIR 1953 Pat 140. In Md. Idan v. S.K Habibullah, 1961 BLJR 135, the same learned Judge relied on Bijay Lal Agarwala's case, 1957 Pat LR 259. In Guru Pd. Singh v. Mt. Ramjhari Kuer, 1961 BLJR 539, Ahmad, J. followed the decisions in the cases of Bijaylal Agarwala, 1957 Pat LK 259 and Ugrah Dusadh, AIR 1954 Pat 301. In Deolal Singh v. Brij Behari Singh, 1961 BLJR 319, the same learned Judge relied on the aforesaid decisions and a decision or Sinha, J. in the case of Jabit Singh v. Sheopujan Singh, 1958 BLJR 254, which also dealt with a claim for exemption under a notification issued under Section 3 of the 1938 Act. It is, of course, true that, in some of these decisions, the observations regarding onus are stated a bit tot widely; but these observations have to be considered in the light of the facts of each case.

13. On the other hand, in Babu Ram Japo Choudhury v. Babu Pathak, 1960 BLJR 477, Untwalia, J. held that a defendant, who wants to defeat the suit of a person for realisation of money, has got to plead and prove that the Plaintiff is a professional money-fender and he does not hold a money-lender's license. His Lordship distinguished the case of Noor Mohammad AIR 1953 Pat 140 on the ground that it was in respect of an exception to the general rule, which I have earlier called the exception contained in the notification. His Lordship also explained the distinction between the two types of cases, namely, a case in which the defendant Will have to prove that the plaintiff was a professional moneylender and he had not the requisite certificate, and a case in which, after such proof, the plaintiff has to prove that he comes within the exception contained in the notification. If I may say so with respect, I agree with Untwalia, J.

14. In Deolal Singh's case, 1961 BLJR 319, Ahmad, J. made the following observation with reference to the above decision of Untwalia, J.:

“After all it is a well-established principle of law that if any claimant seeks exemption from the operation of any statutory provision made in any Act, the onus is on him to establish that he is entitled to such an exemption. 1 here-fore, this case has to be judged on the principle as laid down in AIR 1953 Patna 140 and the aforesaid decisions which are on the same line.”

15. But it has been pointed out earlier that Section 4 of the 1939 Act is an exception to the provisions of Section 9 of the CPC and, therefore, the party who alleges this exception has to prove it. Further, the decision in Noor Mohammad's case, AIR 1953 Pat 140 dealt with the exception contained in the notification, which is an exception to Section 4 of the 1939 Act. With the greatest respect, therefore, to the learned Judge, I am unable to subscribe to the above observation.

16. In view of the foregoing discussions, my concluded opinion is that the debtor-defendant has to plead and prove that the creditor-plaintiff is a professional money-lender and, If the defendant proves this fact, the plaintiff, claiming exemption from registration, has to prove that he is protected by a notification under Section 3 of the 1938 Act.

17. Mr. Lalnarayan Sinha then submitted that the plaintiff-appellant had adduced sufficient evidence to prove that he was not a professional money-lender and, therefore, his claim was not hit by Section 4 of the 1939 Act me plaintiff stated in his evidence that he was not a professional money-lender, and this assertion of his was not at all challenged in cross-examination, nor did the defendants adduce any evidence to prove that the plaintiff was a professional moneylender. Of course, the plaintiff was questioned in cross-examination about his account books; but he said that he did not maintain any accounts; and, inasmuch as he was not a professional money-lender, he could not have done so. Thus, the onus, if any, that lay on the plaintiff was discharged by this evidence. The learned Subordinate Judge was of the opinion that, inasmuch as the plaintiff did not amend the plaint and plead that he was not a professional money-lender, his statement that he was not a professional money-lender was not admissible. But it has been found earlier that it was not the duty of the plaintiff to plead that he was not a professional money-lender.

18. The next reasoning of the learned Subordinate Judge was that, in view of the claim for rent on the basis of relationship of landlord and tenant, it could never have been; the intention of the plaintiff to plead an escape from the penal provision of Section 4. The simple answer to this reasoning is that the plaintiff could, in the alternative, ask for decree for arrears of interest on the basis of the relationship of creditor and debtor admitted by the defendants in their written statement. This view is supported by a decision of She Supreme Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177. In that case, their Lordships said:

“A plaintiff may rely upon different rights alternatively and there is nothing in the Code of Civil Procedure to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint, it is open to the Court to give him relief on that basis ……… But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings.”

19. Thus, the reasonings of the learned Subordinate Judge are without any substance; and it must be held that the plaintiff was net a professional money-lender. Hence, the suit was not it by Section 4 of the 1939 Act.

20. Mr. G.G Mukherjee then contended that the suit for rent on the basis of the ‘kerayanama’ in lieu of interest was not maintainable, as the ‘kerayanama’ (or lease back) and the mortgage formed parts of the same transaction. Mr. Sinna, learned Advocate for the appellant, conceded that the claim for rent in lieu of interest of the mortgage money arose out of one and the same transaction and was a claim under the mortgage. Relying on a decision in Phulchand Sah v. Dinkar Prasad, AIR 1955 Pat 297, Mr. Mukherjee then submitted that a separate suit could not be brought in respect of the Interest, as the claim for interest as well as the claim for the mortgage money arose out of the same cause or action. But in that case, the mortgage money had become payable before the money suit was instituted, whereas in the present case the mortgage became payable on the 4th February, 1958, that is, long after the institution of the suit, while the rent was payable, according to the kerayanama every month.

21. This kerayanama is a registered document executed by both the parties in accordance with the provisions of section 107 of the Transfer of Property Act, and the term of the Kerayanama is the same as the term of the mortgage bond, that is, five years from the 5th February, 1953. Thus, She cause of action for recovery of arrears of rent, which was payable, as conceded by learned Counsel, in lieu of interest was separate and distinct so long as the mortgage money did not become payable.

22. The decision in Phulchand Sah's case, AIR 1955 Pat 297 and several other decisions were considered in a recent Division Bench decision of this Court in Shivajee Prasad Sahu v. Darsan Das, 1962 BLJR 789 : (AIR 1963 Pat 87). It was held in this case that, unless, the nonpayment of the interest on the mortgage in the case of a lease back causes the principal mortgage money to become due, an earlier suit for arrears of rent in lieu of interest could not bar a subsequent suit for the principal money, as they arose out of two distinct causes of action. In tms connection, it is useful to refer to Order XXXIV, Rule 14, of the Code of Civil Procedure, which is reproduced below:

“(1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, rule 2.

(2) Nothing in sub-ruie (1) shall apply to any territories to which the Transfer of Property Act, 1882, has not been extended.”

23. This rule lays down that a separate suit in respect of a particular claim arising out of the mortgage is not affected by Order II, Rule 2, Code of Civil Procedure, and the only bar in the way of the mortgagee is that he cannot execute the decree in respect of that claim by sale of the, equity of redemption. In the present case, therefore, there is no bar to a decree for arrears of rent in lieu of interest, though this decree cannot be realised by sale of the equity of redemption. This contention of Mr. Mukherjee must, therefore, also fail.

24. In view of the aforesaid findings, the suit for arrears of rent in lieu of interest was maintainable and it was not hit by Section 4 of the 1939 Act. The plaintiff is, therefore, entitled to a decree for the amount allowed by the trial Court. In the result, the appeal is allowed with costs of this Court and the Court below, the judgment and decree of the Court below are set aside and those of the trial Court restored.

Kanhaiya Singh, J.:— I agree.

AG/M/D.V.C

25. Appeal allowed.