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Vinayak Pandurangrao Vs. Sheshadasacharya Ramacharya - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 134 of 1943
Judge
Reported inAIR1945Bom60; (1944)46BOMLR711
AppellantVinayak Pandurangrao
RespondentSheshadasacharya Ramacharya
DispositionApplication allowed
Excerpt:
.....the act. neither section 37 nor section 73 of the act presents any bar to such an application.;the words ' shall be final' in section 37 of the act do not exclude the revision jurisdiction of the high court.;vithal krishna v. balkrishria janardan (1886) i.l.r. 10 bom.610, f.b., shiva nathaji v. joma kashinath (1883) i.l.r. 7 bom.341, f.b, chatur-bhuj v. mauji ram (1938) all. 702, f.b, aphraf v. saith. mai (1938) all. 110, md. ebrahim moolla v. jandass (1923) a.i.r ran.94, phomon singh v. a. j. wells (1923) i.l.r. 1.ran. 276, bachu lal v. ram din (1938) a.l.j.r. 1118, and tyebhoy essofalli v. collector of ahmedabad (1943) 45 bom.l.r. 1055, referred to. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special..........is that the decision is not subject to appeal. there are provisions in various acts in which the words 'the decision shall be final' or the cognate words 'the decision shall be conclusive ' are used, and yet the courts have consistently held that these words do not bar the revisional jurisdiction of the high court. section 12 of the court-fees act provides that every question relating to valuation for the purpose of determining the amount of any fee chargeable on a plaint or memorandum of appeal shall be decided by the court in which such plaint or memorandum is filed, and such decision shall be final as between the parties to the suit. in vithal krishna v. balkriskna janardan i.l.r. (1886) 10 bom. 610 it was held by a full bench of this court that such a decision of a court,.....
Judgment:

N.J. Wadia, J.

1. This is a revision application against an order made by the First Class Subordinate Judge of Bijapur under Section 37 of the Bombay Agricultural Debtors' Relief Act, XXVIII of 1939. The applicant obtained a decree against the opponent in Small Cause; Suit No. 1531 of 1932 on March 24, 1933, and filed darkhast No. 478 of 1936 to execute the decree, and a land belonging to the opponent was attached. The proceedings were transferred to the Collector for sale of the property. Five days before the date fixed for the sale, the opponent made an application under the Bom bay Agricultural Debtors' Relief Act that the execution proceedings should be stayed.

2. To that application the applicant put in his objections. These were heard on July 20,. 1942, and the case was adjourned to August 10, 1942, for passing orders. On August 10 and 13, 1942, the opponent put in affidavits of two persons on hi s behalf to show that his father Ramacharya, the original debtor, had been personally cultivating his fields. The applicant contended that the allegations made in the affidavits were false and asked that he should be given an opportunity to cross-examine the deponents and to produce certain documents to rebut the affidavits. The documents which he produced were extracts from the Record of Rights showing that seven different lands be longing to Ramacharya had been let out to tenants in the years 1929-30 and 1930-31. The learned Judge admitted the documents but made no orders as to the prayer for cross-examining the deponents, and on the same day he made an order holding that the opponent was a debtor as defined in the Bombay Agricultural Debtors' Relief Act and that his debts did not amount to more than Rs. 15,000. He directed that the proceedings should be transferred to the Debt Adjustment Board at Indi for deci sion according to law. Against that order the applicant has come in revision on the ground that there was no satisfactory evidence to show that the opponent's father had been personally cultivating lands, that the Judge should not have allowed the opponent to put in affidavits without the knowledge of the applicant and after the hearing of thecase had been concluded, and that his doing so amounted to a material irregularity.

3. A preliminary objection has been raised on behalf of the opponent that no revision application can lie to this Court. The order complained against is admittedly one. made under Section 37 of the Agricultural Debtors' Relief Act. That section provides that all pending suits and applications for execution before any civil Court in which the question involved is the recovery of any debt from a person who is a debtor under the Act, if such person ordinarily] resides in any local area for which a Board is established under Section 4 of the Act or belongs to a class of debtors for which a Board is established under that section shall, if the total amount of debts due from such debtor is not more than Rs, 15,000, be transferred to the Board to which an application for adjustment of debts of such person under Section 17 lies. No such transfer can be made unless notice has been given to all parties to the suit or application. The section also provides that the decision of the Court on the points whether such person is a debtor under the Act and whether the amount of his debts is not more than Rs. 15,000 shall be final. Section 73 of the Act provides that except as otherwise provided by the Act and notwithstanding anything contained in any1 other law no- civil Court shall entertain or proceed with any suit or proceeding in respect of (i) any matter pending before the Board or the Court under the Act, or (ii) the validity of any procedure or the legality of any award, order or decision of the Board or of the Court. It is contended. that under both these sections this Court is debarred from interfering in revision with the order made by the learned Judge.

4. I will deal first with the objection based on Section 73. The word 'Court' under the Act has a special meaning. Under Section 2(4)(a) ' Court' for the purposes of Sections 13, 14, 17, 61, 62(J), 63, 66, 75 and 83 means a District Court or a Court of the First Class Subordinate Judge to which an appeal lies against the award of a Board 'Under Section 9, and (b) in the remaining provisions of the Act the word 'Court' means any civil Court of competent jurisdiction. Section 73 is not mentioned as one of the sections in which the word ' Court' has the special meaning given to it by Section 2(4)(a), but looking at the section it seems to us clear that the word ' Court' in Section 73(ii) must mean the special Court referred to in Section 2(4)(a). That is the Court referred to in Clause (i) of Section 73 a'nd it is the sameCourt which is referred to in Sub-clause (ii). To put any other construction on the section appears to us to render it meaningless. The order made in this case by the First Class Subordinate Judge is one made by him under Section 37, that is an order made by him as an ordinary civil Court, and not as a Court within the meaning of Section 2(4)(a), namely a Court to which an appeal lies against an award of a Board. On that view Section 73 would have no application to the case at all. It seems that through oversight Section 73 has not been mentioned in Section 2(4)(a) as one of the sections in which the words ' the Court' are used in the special sense given to the word in that section. This is not the only section which has been so omitted. The learned advocate for the applicant, Mr. Datar, has taken us through all' the sections in the Act in which a reference is made to the words ' a Court ' or ' the Court ', and it appears that in Section 68(3) and in Section 69 also the words ' the Court' refer to the special Court created by the Act, but neither of these- sections is mentioned in Section 2(4)(a).

5. There is also another ground on which in our opinion Section 73 doesi not come in the way of the applicant. That section prevents any civil Court from entertaining any suit or proceeding in respect of matters pending before the Board or the Court under the Act, or in respect to the validity of any procedure or the legality of any award, order or decision of the Board or of the Court. The word, proceeding; in this section must be interpreted as ejusdem generis with the word ' suit' which precedes it, and it seems to us to be intended to refer to suits or proceedings of an original nature in the subordinate Courts. The object of the section evidently was to provide that Subordinate Judges' Courts should not take cognizance of or proceed with matters which were already being dealt with by the Boards or the special Courts created by the Act. In Kirpa Singh v. Ajaipal Singh I.L.R. (1928) 10 Lah. 165 a full bench of the Lahore High Court observed that the words ' suits' and ' proceedings ' have) different meanings in different statutes, that it is not possible to lay down a general rule which would be applicable to all cases, and that in each particular case the question must be examined in reference to the context and that meaning preferred which will best fit in with! it. Accordingly they held that in Sections 29 and 30 of the Gurdwara. Act these words must be construed as signifying actions in the trial Court or proceedings ejusdem generis and cannot be held to include appeals. Examined in the light of these remarks the words ' suit or proceeding ' in Section 73 seem to us to apply only to suits or proceedings of an original nature and not to include revision applications filed in this Court.

6. Coming now to Section 37 it is true that that section makes the decision of the Courts on the points whether a person is a debtor under the Act and whether his debts are not more than Rs. 15,000 final. The question is whether the use of the word ' final' in this section excludes the revisional jurisdiction of this Court. The revisional jurisdiction of this Court cannot be taken away except by express words or by necessary implication.This was held by West J. as far back as 1880' in Tulsidas Dhunjee v. Virbussapa I.L.R. (1880) 4 Bom. 624 and the principle has been repeatedly affirmed by this Court and by other Courts on subsequent occasions : Kirpa Singh v. Ajaipal Singh (supra) and Gulamhusain v. De'Souza(1928) 31 Bom. L.R. 988 Section 37 does not in terms refer to the revisional jurisdiction of this Court at all. It only provides that the decision of the Judge on the points referred to in that section shall be final. The ordinary meaning of the word 'final' is that the decision is not subject to appeal. There are provisions in various Acts in wHich the words 'the decision shall be final' or the cognate words 'the decision shall be conclusive ' are used, and yet the Courts have consistently held that these words do not bar the revisional jurisdiction of the High Court. Section 12 of the Court-fees Act provides that every question relating to valuation for the purpose of determining the amount of any fee chargeable on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum is filed, and such decision shall be final as between the parties to the suit. In Vithal Krishna v. Balkriskna Janardan I.L.R. (1886) 10 Bom. 610 it was held by a full bench of this Court that such a decision of a Court, notwithstanding its declared finality, is subject to revision by the High Court. In Shiva Nathaji v. Joma Kashinalh I.L.R. (1883) 7 Bom. 341 the question of the revisional powers of this Court both under the Code of Civil Procedure and under Regulation II of 1827 was exhaustively considered by a full bench of this Court. In the course of his judgment West J. observed (p. 362),:-

We may, from this judgment, gather with reasonable certainty the opinion of the highest present authorities, that the power of control almost essential to the conception of a Supreme Court cannot be divested except by the most express and pointed statutory provisions,

though he went on to say that that power was not to be used by the High Court so as to supersede the lower Courts in their proper functions, by substituting its own judgment for theirs in matters committed to their jurisdiction by the Legislature. Elsewhere in the judgment he observed (p. 359):-

We can only say with confidence that when the Code says ' final' it speaks on the supposition that there has been a reasonable attention to its rules, and to ordinary principles, in the previous proceedings.

6. The question was also considered by a full bench of the Allahabad High Court in Chaturbhuj v. Mauji Ram.(1938) All. 702. The Court was there dealing with Section 5 of the U. P. Agriculturists' Relief Act, XXVII of 1934, which provided that on the question dealt with by the section the decision of the Court was to be subject to appeal to the Court to wjiich the Court passing the order was immediately subordinate, and the decision of the appellate Court was to be final. .The High Court held that the provision about the finality of the decision of the appellate Court cannot warrant the inference that the Legislature intended in any way to limit or control the revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure. In Ashraf v. SaithMal (1938) All.110 it was held that the provisions in Section 45(5) of the U. P. Encumbered Estates' Act that the decision on an appeal under that section shall be ' final', meant only that the decision was not subject to any further appeal, but that it did not mean that the power of the High Court to interfere in revision under Section 115 of the Code of Civil Procedure vfe shut out. In the course of the judgment reference was made to a decision of the Rangoon High Court in Md. Ebrahim Moolla v. Jandass A.I.R. (1923) Ran. 94 that the provision in Section 18 of the Rangoon Rent Act, 1920, that the decision of the first Judge of the Court of Small Causes under that Act shall be final meant only that his order should not be appealable, and that it did not shut out the revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure. In Phomon Singh v. A. J. Wells I.L.R. (1923) Ran. 276 it was held that the provision in Order XXI, Rule 63, that the order made by the Court where a claim or objection is preferred under Rules 58, 59, 60 and 61 of the Code of Civil Procedure shallbe conclusive, did not preclude revisionary jurisdiction but only tendered the orders passed unappealable. The same view was taken by the Allahabad High Court in Bachu Lai v. Ram Din.(1938) A.L.J.R. 1118 In a recent decision of this Court in Tyebhoy Essojalli v. Collector ofAhmedabad : AIR1944Bom91 Lokur J. held that a revision application under Section 115 of the Code of Civil Procedure would lie against an order made by a Court under Section 6C of the Mussalman Wakf Act in spite of the provision in s.'6F of the Act that the entries made by the Court in the Register of Wakfs and the findings recorded under s.60 shall, subject to the provisions of Section 6G, be final for the purposes of the Act.

7. There is thus ample authority for the view that the mere use of the words ' shall be final' or ' shall be conclusive ' in an enactment does not have the effect of shutting out the revisional jurisdiction of this Court. The ordinary meaning of these words is merely that there shall be no appeal against such orders. We are therefore entitled to interfere in revision with the order made by the learned Judge under Section 37 of the Agricultural Debtors' Relief Act if we are satisfied that there was a material irregularity on the part of the learned Judge in making that order.

8. From the record of the proceedings we are satisfied that there was in this case such a material irregularity. The learned Judge was clearly wrong in allowing the opponent to put in affidavits without the knowledge of the applicant, and also in, not allowing the applicant the opportunity which he had asked for of cross-examining the deponents. He has also, as far as we can judge from the very brief order which he has made, failed to consider the entries from the Record of Rights which the applicant produced, and the production of which was allowed by; the learned Judge. Under the provisions of Order XIX, Rule 1, of the Code of Civil Procedure it is open to the Court to allow a fact to be proved by affidavit, but where either party bona fide desires the production of the witness for cross-examination and such witness can be produced, it is not open to the Judge to allow thematter to be proved by affidavit. The procedure adopted by the learned Judge has in our opinion resulted in injustice to the applicant.

9. We accordingly make the rule absolute, set aside the order made by the learned Judge transferring the proceedings to the Debt Adjustment Board atIndia, and direct that the learned Judge should hold further inquiry and give the applicant decree-holder an opportunity of cross-examining the two persons whose affidavits were produced by the opponent, and also consider the documentary evidence which has been adduced, by ?the applicant, and then dispose of the matter according to law. Both parties should be allowed to lead further evidence. The applicant will get his costs of this application from the opponent. Costs in the lower Court will abide the result.


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