The onus of proof lies on the party who alleges an exception to a general rule.

Ramratna Singh, J.

1. 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 plaintiffs suit for arrears of house rent on the basis of a registered kerayanama. It is admitted that the defendants borrowed a sum of Rs. 2,500.00 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 agreea 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.

The defendant-respondents resisted the claim of the plaintiff-appellant on three grounds (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 Sec. 4 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 (hereinafter referred ,to as the 1939 Act.).

2. It was conceded before the learned Munsif that mere was relationship of creditor and debtor between the parties, and, therefore, in view of a decision of this Court in, Ramnarain Passi V/s. Sukhi Tiwary, AIR 1957 Pat 24, the Teamed Munsif granted a decree for damages for use ana 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 12 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 Sec. 4 of the 1939 Act, inasmuch as the plaintiff did not plead that he was not a professional money-lender.

4. Mr. Lal Narayan Sinha, learned Advocate for the appellant, submitted that, inasmuch as the provision contained, in Sec. 4 of the 1939 Act was an exception to the provision in Section 9 of the Civil Procedure Code, 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 Sec. 4. On the other hand, Mr. G.C. 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. Sec. 4 of the 1939 Act enacts as follows;

"No Court shall entertain a suit by a Money-lender for 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 money-lender 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 Sec. 5 of the Bihar Money-Lenders Act, 1938 at any time before the expiration of the said six months."

It is well-settled that the expression money-lender in, this section means a professional money-lender see Mt. Surajbansi V/s. Mt. Larho, ILR 25 Pat 90: (AIR 1946 Pat 310). This was also the view taken recently in a Bench decision or