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Sanabhai Nathabhai Vs. Gordhandas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Civil Revision Application No. 121 of 1945
Judge
Reported inAIR1946Bom319; (1946)48BOMLR171
AppellantSanabhai Nathabhai
RespondentGordhandas
DispositionApplication dismissed
Excerpt:
bombay civil courts act (xiv of 1869), section 24 - civil judge (junior division)-pecuniary jurisdiction-dekkhan agriculturists' relief act (xvii of 1879), sections 3(a), 15d-suit for account-prayer for declaration that impugned transaction is mortgage and not sale-'declare', meaning of.;a suit for accounts under the provisions of section 15d of the dekkhan agriculturists' relief act, 1879, involving a prayer for a declaration that the document under which the accounts are prayed is a mortgage deed though it is in form a sale deed lies in the court of a civil judge (junior division), even though the consideration of the document is more than rs. 5000 in value.;the word 'declare' in section 15d of the dekkhan agriculturists' relief act is not used in a technical sense. - - in this.....harilal kania, kt., ag. c.j.1. this is a civil revision application of the original defendant in civil suit no. 83 of 1943 filed in the court of the joint civil judge (junior division) at nadiad. the plaintiff filed the suit on the allegation that an ostensible sale deed for rs. 9,000 executed by him on april 6, 1942, was really a mortgage. he alleged that he was paid only rs. 3,000 in cash and rs, 5,000 had been credited towards past dues. he disputed his liability for the amount mentioned in the deed. the prayers were: (1) to declare that for the reasons stated above, the fields mentioned in paragraph 1 of the plaint had been mortgaged by the plaintiff to the defendant and for which the defendant had obtained a document on april 6 in the form of a sale, but that the same was in reality.....
Judgment:

Harilal Kania, Kt., Ag. C.J.

1. This is a civil revision application of the original defendant in civil suit No. 83 of 1943 filed in the Court of the Joint Civil Judge (Junior Division) at Nadiad. The plaintiff filed the suit on the allegation that an ostensible sale deed for Rs. 9,000 executed by him on April 6, 1942, was really a mortgage. He alleged that he was paid only Rs. 3,000 in cash and Rs, 5,000 had been credited towards past dues. He disputed his liability for the amount mentioned in the deed. The prayers were: (1) to declare that for the reasons stated above, the fields mentioned in paragraph 1 of the plaint had been mortgaged by the plaintiff to the defendant and for which the defendant had obtained a document on April 6 in the form of a sale, but that the same was in reality a mortgage; and (2) to take an account of the mortgage and the produce of the fields, since the said fields were mortgaged on April 6, 1942, under the Dekkhan Agriculturists' Relief Act, 1879, and ascertain the amount payable by the plaintiff to the defendant. There were prayers for further and other reliefs, and for costs.

2. An objection was raised to the jurisdiction of the Court. It was decided against the defendant. The defendant filed this civil revision application which first came before Mr. Justice Weston. Chunilal Kevalram v. Ramchandra Yesaji (1941) 44 Bom. L.R. 278, Harendra Shankar v. Khiali Ram [1940] All. 762, and Babaji v. Hari I.L.R.(1891) Bom. 351 were pointed out to the learned Judge and it was thought that there was some conflict of views in these decisions. The learned Judge, therefore, instead of disposing of the matter, referred it to a bench. When the matter came before us on Thursday last, the question whether Babaji v. Hari was rightly decided or not was directly put for our consideration. In view of that contention, it was thought that the application should be heard by a bench of three Judges, and the matter has thus come before us today.

3. The argument urged on behalf of the applicant is that under Section 15D of the Dekkhan, Agriculturists' Relief Act, the duty of the Court is to take an account and pass a decree declaring that amount. Thereafter, if the plaintiff applied and the Court granted the application, the suit might be converted into a suit for redemption. Similarly, if the time for payment had passed and the mortgagee applied for foreclosure or sale and the Court acceded to that request, the suit might be converted into a suit for foreclosure or sale. It was, therefore, argued that this is not a suit for accounts within the meaning of Section 7(4) (f) of the Court-fees Act. It was, therefore, contended that the suit not being one for accounts, the Civil Judge (Junior Division) had no jurisdiction to try the suit as the amount claimed under the written document was Rs. 9,000. It was contended in the alternative that if this was a suit for a declaration, it would fall under sell. 2, Article 17(6), or (3) of the Court-fees Act as a suit either of a peculiar nature which was not covered by any specific article, or a suit in which a declaration was asked. In this connection strong reliance was placed on the concluding words of Section 15D of the Dekkhan Agriculturists' Relief Act. It was argued that in Babaji v. Hari it was held that when the amount due under the deed was over Rs. 5,000 the only Court to try the suit was the Court of the First Class Subordinate Judge. It was pointed out that if on taking accounts a party was dissatisfied, he had the right to go-to the. Court of the Civil Judge (Senior Division) and file a substantive suit for redemption or sale as the case may be, and, in that event, all the time and money spent in proceeding with the suit filed in the Court of the Civil Judge (Junior Division) would be wasted.

4. We are not concerned in this litigation, at this stage, with considering the position which the Court may be faced with at the time of passing the final decree. The short point for consideration now is this. When the document in question mentions that a sum of Rs. 9,000 was paid and it is claimed that the transaction was not a sale but a mortgage, and the debtor, undisputedly an agriculturist, files a suit for accounts under Section 15D, is it competent to be dealt with by the Civil Judge (Junior Division) or not? As regards the prayer for a declaration that the document is a mortgage and not a sale, it has been held by our Court in Chunilal Kevalram v. Ramchandra Yesaji that such a prayer is unnecessary and the suit is in effect a suit for accounts under Section 3(a) of the Dekkhan Agriculturists' Relief Act. It should be noted that the only suits for account which are permitted to be filed on behalf of an agriculturist under the Dekkhan Agriculturists' Relief Act are under Section 15D and Section 16. Originally, a suit could have been filed under Section 16 only. It was thought that a suit asking for accounts in respect of mortgage transactions, without a prayer for redemption or sale, was not covered by Section 16. Thereupon Section 15D was incorporated in the Dekkhan Agriculturists' Relief Act by Act XXII of 1882. Therefore, it is clear that the existence of the first prayer in. the plaint before us does not prevent the suit being one for accounts. The same view was taken by Beaumont C. J. in Savant v. Bharmappa ` In that case it was stated as follows: ' For the purposes of court-fees the claim was valued at Rs. 5, which, would be sufficient if the claim is merely one for an account.' It was contended before us that that observation, while entitled to due consideration, cannot be held to have decided that a suit under Section 15D was a suit for accounts, because the rival contentions now urged before us were never argued. We are prepared to accept Chimilal Kevalram v. Ramchandra Yesaji as correctly decided and this argument therefore need not be discussed further.

5. The next question is about the words used at the end of para 1 of Section 15D. In our opinion those words also do 'not help the applicant. The words of that paragraph clearly indicate that the suit under consideration is one ' for an account of the amount of principal and interest remaining unpaid on the mortgage.' The last words ' and for a decree declaring that amount' only show what must follow from a suit for accounts. The authority taking accounts cannot end its work except by striking a balance and holding that a certain amount is due by one party to the other. The word ' declare ' is therefore not used in the section in a technical sense. The words of the section only indicate that in such a suit the decree shall ascertain the amount which is due. In our opinion, those words do not make a suit of the nature contemplated by Section 15D(z) a suit for a declaration within the meaning of sch. 2, Article 17(3) of the Court-fees Act. In the same way, as this is clearly a suit for accounts, the general residuary Sub-article 17(6) is inapplicable.

6. The further argument that such a suit may be converted by operation of para, 3 of Section 15D into a suit for redemption or foreclosure or sale, does not help the applicant. Two contingencies must arise before the suit acquires that character: (1) an application on the part of the plaintiff or the defendant, and (2) leave of the Court to make such amendment. Failing either of these two, the suit remains a suit for accounts and nothing else. When such an application is made and granted, the Court may have to decide the limits of its jurisdiction and what reliefs it can give to the parties. We are not concerned at this stage with that larger issue.

7. On behalf of the applicant strong reliance was placed on Babaji v. Hari. In that case the suit was brought by the mortgagors of certain lands trader Section 15D of the Dekkhan Agriculturists' Relief Act. There were numerous mortgages in favour of the same creditor. The total of those mortgages was Rs. 5,750 as shown by the original record which we sent for. The mortgagor tried to drop one of the intermediate mortgages to make the aggregate amount Rs. 4,850. Thereupon, the Subordinate Judge submitted three questions for the opinion of the High Court. Neither party appeared before the High Court and the questions were answered by the Court in one paragraph consisting of nine lines. The three questions were these:-

(I) Whether, having regard to the meaning of the word 'mortgage' used in Section 15D, Clause (7), of the Dekkhan Agriculturists' Relief Act, the plaintiffs are bound, in a suit like the present, to include in the plaint all the mortgage-bonds by which charges have been created on the property in question, or can keep back one of them and claim an account of the rest, as they have now done ?

''(II) Whether, under Section B(a) of the said Act it is necessary to inquire into the total of the principal amount secured by the mortgage-bonds in determining the jurisdiction of the Court, or whether that jurisdiction extends to all account suits under Section 15D irrespective of the limitation of Rs. 5,000?

' (III) Whether a Subordinate Judge of the second class could pass a decree as contemplated by the 3rd clause of Section 15D even though the total of the principal amount secured in bonds creating the mortgage, or the amount found due after accounts have been taken in the manner referred to in Clause (2) might exceed Rs. 5,000?

8. A perusal of the judgment clearly shows that the Court dealt with the first question in the first part of the first sentence. It held that it was not open to the mortgagor to drop some mortgage claims and ask for an account of some of the mortgages only when all mortgage debts were due to one party only. The reason for this appears to be clear. If the idea is to free the property on payment of the amount due, or to know the liability of the mortgagor to the individual creditor under the mortgages, it is incumbent on the debtor to get from the Court an account of all amounts due to that individual creditor. It is sheer waste of time to ask the Court to ascertain the amount due to the individual creditor only on certain mortgages, when other transactions leave the land still covered by some mortgages in favour of the same creditor. The second question was disposed of by the second part of the first sentence of the judgment. The learned Judges there stated ' the account must be taken of all of them (the mortgage deeds) in the same suit, and if the total amount, as in the present case, exceeds Rs. 5,000 the case does not fall under Chapter 2 of the Act.' It is dear that this refers in terms to Section 3(a) which was specifically referred to in the second question submitted for the Court's opinion. The first sentence ended there. The last sentence ' If it exceeds Rs. 5,000 the First Class Subordinate Judge alone has jurisdiction ' has to be read in the light of the words used in question No. 3. _ The Court's opinion was asked if a Second Class Subordinate Judge could pass a decree as contemplated by Section 15D(3) even though the total of the principal amount secured by the bonds creating the mortgage, or the amount found due after accounts have been taken in the manner referred to in Clause (2) exceeded Rs. 5,000. The question was clearly under Clause (3) of the section. The Court held that the First Class Subordinate Judge alone had jurisdiction. In this connection it is very material to bear in mind that before this decision the view of our High Court was that in a suit even for ordinary accounts filed before a Second Class Subordinate Judge, if a sum exceeding Rs. 5,000 was found due, that Judge had no jurisdiction to pass a decree. Our Court has thereafter taken a different view and the present trend of decisions is that in a suit for an account if a sum more than Rs. 5,000 is found due, the Second Class Subordinate Judge has jurisdiction to pass a decree. In the light of that change of view, the last sentence of the judgment in Babaji v, Han may have at the proper time to be considered. As I have pointed out, at the present stage of the suit, as no relief under para. (5) of Section 15D is asked for, this decision need not be considered.

9. Bearing in mind the stage at which this litigation stands today, we have no hesitation in holding that the Civil Judge (Junior Division), Nadiad, before whom the suit is pending, has jurisdiction to proceed with the same. The result is that the Civil Revision Application fails and is dismissed with costs. Interim stay now comes to an end.


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