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Jethabhai Rambhai and ors. Vs. Rao Laxmanrao Bhailal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 461 of 1951
Judge
Reported inAIR1953Bom96; (1952)54BOMLR479; ILR1952Bom988
ActsDebt Law; Bombay Agricultural Debtors' Relief Act, 1947 - Sections 17, 19(1), 19(4), 19(6) and 32
AppellantJethabhai Rambhai and ors.
RespondentRao Laxmanrao Bhailal and ors.
Appellant AdvocateN.V. Karlekar, Adv.
Respondent AdvocateA.S. Pradhan, Adv.
Excerpt:
.....always got to be made as best as one can to reconcile various sections of the act. and this the debt adjustment court will decide both in order to answer the preliminary issues under section 17 and ultimately for the purpose of adjusting the debts and for passing an award under section 32. this construction is also consistent with what is provided under section 19, sub-section (4), because that sub-clause clearly contemplates that, as soon as a suit is transferred, the court must immediately proceed to try the preliminary issues under section 17. now, it the suit were to be transferred as it stands, it would be impossible for the debt adjustment court to try the preliminary issues under section 17. the first issue that the court will have to try would be an issue with regard to..........an application was made by the defendants on january 9, 1951, for the transfer of this suit to the debt adjustment court. the learned civil judge to whom the application was made tool the view that the suit could not be transferred at that stage. it is from that order that this revisional application has been preferred.(2) now, as the suit was pending at the date when the application could be made under section 4 of the act, if the suit was one to which section 13 applied and which was liable to be transferred, it was incumbent upon the learned civil judge to transfer the suit. and the question we have to consider is whether a suit for possession in which mesne profits are claimed, is (sic) suit which is liable to be transferred under section 19(1) of the bombay agricultural debtors'.....
Judgment:

Chagla, C.J.

(1) The plaintiffs filed a suit for possession and mesne profits. Their allegation was that they had a title to the land, that the defendants were in wrongful possession and that the defendants were liable to pay mesne profits for the period during which they were in wrongful possession. The suit was filed in a Court which was in the State of Baroda. Baroda was merged with the State of Bombay on August 1, 1949, and the Bombay Agricultural Debtors' Relief Act was applied to the State of Baroda. The last date for making an application under the Bombay Agricultural Debtors' Relief Act as applied to the Baroda State was January 31, 1950, and an application was made by the defendants on January 9, 1951, for the transfer of this suit to the Debt Adjustment Court. The learned Civil Judge to whom the application was made tool the view that the suit could not be transferred at that stage. It is from that order that this revisional application has been preferred.

(2) Now, as the suit was pending at the date when the application could be made under Section 4 of the Act, if the suit was one to which Section 13 applied and which was liable to be transferred, it was incumbent upon the learned Civil Judge to transfer the suit. And the question we have to consider is whether a suit for possession in which mesne profits are claimed, is (sic) suit which is liable to be transferred under Section 19(1) of the Bombay Agricultural Debtors' Relief Act. Now, the scheme of the Bombay Agricultural Debtors' Relief Act has been considered by this Court in several decided cases, and every time the Court considers the scheme of the Act, it is confronted with several difficulties, and an attempt has always got to be made as best as one can to reconcile various sections of the Act. A reconciliation can only be brought about if one considers the main object of enacting the Bombay Agricultural Debtors' Relief Act and how that object can be achieved, and also by trying to avoid insuperable difficulties in the administration of justice. Bearing these considerations in mind, let us consider what the scheme of the Act is with regard to the transfer of suits.

(3) Special Courts under the Bombay Agricultural Debtors' Relief Act were set up in order, first, to determine the preliminary issues under Section 17; and those issues were whether the person, for the adjustment of whose debts the application has been made, was a debtor, and whether the total amount of debts due from such person on the date of the application exceeded Rs. 15,000. The Court had jurisdiction to proceed further provided both these issues were answered in favour of the debtor. The further jurisdiction that was conferred upon the Special Courts was to adjust the debts of the debtor with a view ultimately to pass an award under Section 32. The award was passed after scaling down the debts in accordance with the scheme laid down in the Act. Now, it is very pertinent to note that the Debt Adjustment Court did not have the jurisdiction to pass any decree in favour of the plaintiff which was unconnected with the debt which the plaintiff was claiming from the defendant. The only jurisdiction that the Special Court had was to make an award. But with regard to those issues that may arise in the suit, in respect of which a decree might have to be passed by a Court, the jurisdiction of the civil Court was not taken away. Therefore, in the present case, where we have a suit for possession and for mesne profits, if the plaintiffs prove their title to the land, it would not be competent to the Debt Adjustment Court to pass a decree for possession in favour of the plaintiffs. The jurisdiction, therefore, which tested in the civil Court to pass a decree for possession remains unaffected by the passing of the Bombay Agricultural Debtors' Relief Act.

(4) Now, under Section 19(1) all suits have to be transferred which are in respect of a debt and the contention put forward by Mr. Karlekar is that, inasmuch as the plaintiffs claim mesne profits, and inasmuch as 'debt' is very widely defined in the Act as 'any liability in cash or kind', this is a suit in respect of a debt and it must be transferred under Section 19(1). If we were to give effect to this contention and construe Section 19(1) to mean that every suit, whether primarily for a debt or not, in which there is any relief sought which, if granted, would amount to a debt payable by the defendants to the plaintiff, would be a suit liable to betransferred under Section 19(1), then considerable difficulties will arise and it will be impossible to reconcile the other provisions of the Act. Assuming that this suit was transferred as a whole, and at this stage, to the Bombay Agricultural Debtors' Relief Act Court, then, according to Mr. Karlekar, the only Court that will be competent to try this suit would be the Debt Adjustment Court. Therefore, the Debt Adjustment Court will have to try the issues, both with regard to possession and with regard to mesne profits. Assuming that the Debt Adjustment Court came to the conclusion that the plaintiffs were entitled to possession, Mr. Karlekar is unable to get over the difficulty of how the Debt Adjustment Court, under those circumstances, would be able to pass a decree in favour of the plaintiffs. Mr. Karlekar suggests that a suit may be retransferred to the civil Court under Sub-section (4) of Section 19 But the re-transfer contemplated under Sub-section (4) is only when preliminary issues are decided against the debtor, in which case the Debt Adjustment Court has no jurisdiction to deal with the application of the debtor at all. Sub-section (4) does not deal with a case where a transfer has been properly made under Section 29(1).

Then Mr. Karlekar suggests that Sub-section (6) might be an answer to this difficulty We frankly confess that it is difficult to understand to what particular kind of cases Sub-section (6) would apply. That sub-section contemplates a suit being transferred to the Debt Adjustment Court and yet certain issues entirely unconnected with the adjustment of debts being tried by the civil Court. Mr. Karlekar says that the issues with regard to possession may be tried by the civil Court although the suit is transferred to the Debt Adjustment Court. The difficulty in the way of accepting this suggestion is that, even though the civil Court may try issues with regard to possession, it will be impossible for the civil Court to pass a decree for possession after it has determined the issues, because, if the suit stands transferred to the Debt Adjustment Court and the Debt Adjustment Court is seized of the suit, it is impossible to contend that some other Court can pass a decree in that suit. Therefore, whichever way one looks at it, one is faced with serious difficulties if one were to accept the contention of Mr. Karlekar that every suit in which there is any relief claimed for a debt must be transferred under Section 19(1) Therefore we must try and give to the expression 'all suits in respect of any debt' used in Section 19(1) a construction which is more consistent with the real object which the Legislature intended to achieve by passing the Bombay Agricultural Debtors' Relief Act.

The Special Court set up under the Act has only jurisdiction to try a suit to the extent that it is in respect of a debt; it has no jurisdiction at all to try a suit in any other respect; and it tries a suit in respect of a debt because it has got to decide the preliminary issues under Section 17, and it has got to adjust the debts in order that ultimately it should pass an award under Section 32. If a suit deals with any other matter, then the jurisdiction of the civil Court remains unaffected. If that be the true position, then we have here a suit which is primarily for possession and incidentally for mesne profits, which would undoubtedly constitute a debt within the meaning of the definition used in the Act. Therefore, this suit would only become liable to be transferred when the Court reaches a stage when the question of the determination of mesne profits arises and when the Court is called upon to determine whether there is any debt payable by the defendants to the plaintiff. When the Court is trying issues as to possession, when the Court is trying issues as to the title of the plaintiff, when the Court is trying issues as to wrongful possession by the defendants, the Court is not trying any matter which has anything to do with a debt or with the adjustment of a debt. After these issues are tried, they may he decided in favour of the defendants, in which case no further question will arise and the plaintiff's suit will be dismissed. On the other hand, the Court may come to a conclusion that the plaintiff has proved his title and the defendants are in wrongful possession. It would be at that stage that the question of mesne profits will arise. Then the Court would pass a decree for possession in favour of the plaintiff and would transfer the suit to the Debt Adjustment Court in order to determine the question of mesne profits. The Debt Adjustment Court will then determine whether any mesne profits are payable by the defendants, and also what is the quantum of the mesne profits; and this the Debt Adjustment Court will decide both in order to answer the preliminary issues under Section 17 and ultimately for the purpose of adjusting the debts and for passing an award under Section 32.

This construction is also consistent with what is provided under Section 19, Sub-section (4), because that sub-clause clearly contemplates that, as soon as a suit is transferred, the Court must Immediately proceed to try the preliminary issues under Section 17. Now, it the suit were to be transferred as it stands, it would be impossible for the Debt Adjustment Court to try the preliminary issues under Section 17. The first issue that the Court will have to try would be an issue with regard to possession and the title of the plaintiff. Now, the Act does not contemplate the Debt Adjustment Court trying any other preliminary issues than the issues referred to in Section 17. Therefore, looking to what is provided in Sub-section (4) of Section 19, it is clear that the Legislature intended that the suit should be transferred to the Special Court at a stage when that Court could immediately launch upon the trial of the preliminary issues under Section 17. That can only be done provided the civil Court has disposed of all other issues which have no connection with the preliminary issues under Section 17 and has passed the necessary decree if a decree has to be passed. The civil Court would then proceed to transfer the suit, and the Special Court would take up the suit at that stage, frame the preliminary issues under Section17, decide the preliminary issues, and either go on with the suit or re-transfer it under Section 19(4) if the preliminary issues arc decided against the debtor.

(5) Our brother Mr. Justice Bavdekar had this question to consider in -- 'Douloo Tukaram Patil v. Sidlinga Appanna Nille', S. A. No. 596 of 1949, D/- 22-1-1951, and the learned Judge took the view that the issue with regard to possession could not be said to be entirely unconnected with the adjustment of debts, and, therefore, that issue could not be tried by the civil Court under Section 19, Sub-clause (6), and, therefore, the whole suit, both for possession and for mesne profits, was liable to be transferred under Section 19(1). With very great respect to the learned Judge, he failed to consider what the effect of such a transfer would 'be. He has also not considered whether itwould be competent to the Special Court to pass a decree for possession if that Court was called upon to try the issue of possession. If that Court was not competent to pass the decree, the learned Judge has not considered as to whether the civil Court could pass such a decree although the suit stood transferred to the Special Court. In view of the reasons given by us in our judgment, we find it difficult to accept the view taken by Mr. Justice Bavdekar in the second appeal just referred to.

(6) We are, therefore, of the opinion that the learned Judge below was right in the order that he passed. We, therefore, direct that the learned Judge will go on with the suit and try the issues which we have indicated and then follow the procedure which we have also indicated in this judgment.

(7) No order as to costs.

(8) Order accordingly.


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