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Juharimal Senaji Vs. Liladhar Madhavji Satwara - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1158 of 1947
Judge
Reported inAIR1949Bom304; (1949)51BOMLR485
AppellantJuharimal Senaji
RespondentLiladhar Madhavji Satwara
Excerpt:
.....relief act (bom. xxviii of 1947), sections 2(3), 19-whether act applies to courts in city of bombay-suits against agriculturists-whether bombay courts bound to transfer such suits.;the provisions of the bombay agricultural debtors relief act, 1947, do not apply-to the city of bombay.;hence, courts in the city of bombay are not bound to transfer suits filed against agriculturists, under section 19, to the 'court' as defined in section 2(3) of the act. - - no further pleadings are necessary because the affidavit of the defendant may be treated as the written statement where the point has been clearly raised. 12. there is one further point which i would like to draw attention and which does not seem to have been appreciated by counsel in the case who argued the matter before me. 15...........below rs. 15,000. the defendant therefore submits that he is a debtor within the meaning of the bombay agricultural debtors' relief act, 1947, and this honourable court has no jurisdiction to try this suit.3. in paragraph 2 the defendant claims the benefit of being an agriculturist within the meaning of the dekkhan agriculturists' relief act 1879, and submits that for that reason also this court has no jurisdiction to try the suit. by paragraph 10 the defendant says that the plaintiff is entitled if at all to recover from the defendant only a sum of rs. 3,400 with interest thereon at 6 per cent, per annum.4. the statement made in paragraph 7 of the plaint that the defendant resides in bombay is not denied. the written statement does not mention the area wherein the defendant.....
Judgment:

Desai, J.

1. The plaintiff has filed this suit against the defendant to recover three sums, one of Rs. 4,500 lent by the plaintiff to the defendant on June 30, 1946, another of Rs. 400 lent by the plaintiff on December 2, 1946, and a third sum of Rs. 50 lent by the plaintiff on January 30, 1947. The plaintiff, in addition to these three sums, claims interest, with the result that the total amount now claimed by him is Rs. 5,952 and interest. In paragraph 7 of the plaint the plaintiff says that the defendant resides in Bombay. It is not stated that the defendant ordinarily resides in Bombay.

2. By his written statement the defendant has raised various defences, the first of which is contained in paragraph 1 of his written statement. That paragraph states as follows:

The defendant holds land for agricultural purposes in the Thana District and has been cultivating land personally; his annual income from sources other than agricultural and manual labour does not exceed 33 per cent, of his total annual income and his total debts are below Rs. 15,000. The defendant therefore submits that he is a debtor within the meaning of the Bombay Agricultural Debtors' Relief Act, 1947, and this Honourable Court has no jurisdiction to try this suit.

3. In paragraph 2 the defendant claims the benefit of being an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act 1879, and submits that for that reason also this Court has no jurisdiction to try the suit. By paragraph 10 the defendant says that the plaintiff is entitled if at all to recover from the defendant only a sum of Rs. 3,400 with interest thereon at 6 per cent, per annum.

4. The statement made in paragraph 7 of the plaint that the defendant resides in Bombay is not denied. The written statement does not mention the area wherein the defendant ordinarily resides or the Court of the Civil Judge having ordinary jurisdiction in that area.

5. On these pleadings the following issues were raised:-

1. Whether the defendant is a debtor within the meaning of the Bombay Agricultural Debtors' Relief Act, 1939, or 1947?

2. Whether the defendant is an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act, 1879?

3. If either of the first two issues is answered in the affirmative, whether this Honourable Court has jurisdiction to try the suit?

The last issue is :

4. What is the amount due and payable to the plaintiff by the defendant?

6. As far as these issues are concerned, I must point out that the issue that the defendant is a debtor within the' meaning of the Bombay Agricultural Debtors' Relief Act, 1947, does not arise on the written statement. In my opinion that defence should in terms have been raised. No application for amendment of the written statement was made. It is not a question of law only but a question of fact and law. The issues in this case were handed in after the arguments as regards the Act of 1947 commenced. The issue on the Act of 1939 was raised by Mr. S.A. Desai as a result of the argument which Mr. N.A. Mody advanced after Mr. Desai had finished his opening address on the Act of 1947. In my opinion he is not entitled to raise the defence based on the Act of 1939.

7. I shall now consider the provisions of the Bombay Agricultural Debtors' Relief Act, 1947, as I have to decide whether as a result of that Act this Court has no jurisdiction to try this suit. Mr. S.A. Desai has drawn my attention to the preamble to the Act which says as follows:-

Whereas it is expedient to consolidate and amend the law for the relief of agricultural debtors in the Province of Bombay and for certain other purposes specified therein: It is hereby enacted as follows:-

Section 1 reads as follows:-

This Act may be called the Bombay Agricultural Debtors' Relief Act, 1947.

It extends to the whole of the Province of Bombay except the City of Bombay.

8. The whole argument centres round those important words 'except the City of Bombay.' Mr. Desai has contended that the object of the Act was to give relief to agricultural debtors in the Province of Bombay, but that so far as agricultural debtors in the City of Bombay holding lands in Bombay were concerned, the intention of the Legislature was not to give them the relief which was meant for other agricultural debtors in the Province of Bombay. Mr. Desai says that if a man owned land in Bombay only and resided in Bombay, the benefit of the Act was not intended to be given to him. If a man owned land in Bombay but was not resident in Bombay and also held land outside Bombay, Mr. Desai contended that the Bombay land would be taken into consideration along with the other lands outside Bombay for the purposes of the Act of 1947. Mr. Desai has drawn my attention to Section 2, Sub-section (3), which defines the word 'Court' used in the Act and to the word 'debtor' which is denned in Section 2, Sub-section (5). Mr. Desai has also drawn my attention to Section 15 of the Act and to Section 19. Under Section 19, Sub-section (1), all suits...in respect of any debt pending in any civil or revenue Court shall, if they involve the questions whether the person from whom such debt is due is a debtor and whether the total amount of debts due from him on the date of the application exceeds Rs. 15,000, be transferred to the 'Court'. Mr. Desai argues that the words 'Civil (or revenue) Court' include the High Court of Bombay, and that the present suit should be transferred to the 'Court' within the meaning of the Act as the defendant is not residing in Bombay. Mr. Mody on the other hand argues that on a plain reading of Section 1 the Court in the City of Bombay is expressly excluded from the operation of the Act. He says that the word 'it' in Sub-section (2) of Section 1 which talks of 'It extends to the whole of the Province of Bombay except the City of Bombay' includes all sections contained in the Act, and, therefore, he reads Section 1, Sub-section (2), in reference to Section 19 as follows:-

The provisions of Section 19 extend to the whole of the Province of Bombay except the City of Bombay.

I am inclined to accept that view. In other words Section 19 read with Section 1, Sub-section (2), must be held to read as follows:-

9. All suits pending in any Civil Court in the Province of Bombay, except in the City of Bombay (meaning except in Courts in the City of Bombay) shall be transferred to the 'Court' within the meaning of the Act of 1947.' If it was intended to take away the jurisdiction of the High Court of Bombay, the Legislature should have used the necessary words for that purpose. Not only are there no words taking away the jurisdiction of the High Court of Bombay, but, on the contrary, my reading of Section 1, Sub-section (2), is that that jurisdiction is expressly preserved. Mr. Desai has rightly appealed to me that this can scarcely be in consonance with the spirit of this legislation. I have however to deal with the plain language of the Act and not with the policy underlying it which led to the enactment of the several provisions therein contained. Mr. Mody has drawn my attention to Bombay Act XXVIII of 1939 called the Bombay Agricultural Debtors Relief Act, 1939, and the provisions of Section 37 thereof which correspond to the provisions contained in Section 19 of the Act of 1947. Mr. Mody points out that under Section 2 of the Act of 1939 the provisions of Section 37 have been expressly stated to extend to the whole of the Province of Bombay. He, therefore, concedes that under Section 37 of the Act of 1939 the High Court of Bombay was bound to transfer the suits to the Board mentioned in Section 37. Mr. Mody has also referred me to the provisions of the Dekkhan Agriculturists' Relief Act of 1879. He says that by Section 1 of that Act, Section 11 has been extended to the whole of British India. By Section 11 of that Act it is provided that every suit of the description mentioned! in Section 3, Clause (w), may, if the defendant, or, when there are several defendants, one only if such defendants is an agriculturist, be instituted and tried in a Court within the local limits of whose jurisdiction such defendant resides, and not elsewhere. Mr. Mody says there are no such express words taking away the jurisdiction of the Bombay High Court under the Act of 1947. When faced with this difficulty, Mr. S.A. Desai tried to argue that the Act that he was thinking of was not the Act of 1947 but the Act of 1939. He said that this suit was filed on April 28, 1947, and the present Act came into force in May 1947, and, therefore, the Act which was in force on the date of the suit was the Act of 1939 and the provisions of that Act must be held to apply to this suit now that the question has come up before me for consideration whether this Court should transfer the suit, Mr. Mody points out that if that be so, the defendant is faced with this further difficulty that there are no Boards today in existence within the meaning of the Act of 1939 to whom this suit can be referred as provided by Section 37 of that Act, those Boards having been abolished by the Act of 1947-see Section 56 of the Act of 1947. I accept Mr. Mody's argument in this behalf. Even if it was permissible for Mr. Desai to argue that the Act of 1939 applies, which I think is not permissible, the Act of 1939 is inapplicable since there are no Boards to which this suit can be transferred, and the jurisdiction of the High Court remains unaffected in that behalf.

10. Mr. Mody has contended that under the Act of 1947 it is not the location of the land but the residence of the owner of the land which is a matter of moment, and, therefore, he says that it is wrong to allege that the words 'City of Bombay' in Section 1 refer to the land in the City of Bombay, as Mr. Desai seemed to suggest. He says that the words 'except in the City of Bombay' mean except to Courts in the City of Bombay, and he goes further and says that the Act does not apply to persons ordinarily resident in Bombay or to land in Bombay. In my opinion the provisions of the Act of 1947 do not apply to the City of Bombay and that Courts in the City of Bombay are not bound to transfer the suit to the 'Court' within the meaning of the Act of 1947. As regards the Act of 1939, there being no Board to which the transfer can be made under the provisions of that Act, the jurisdiction of the High Court of Bombay to try this suit remains unaffected.

11. The whole of the above discussion as regards the Act of 1947 arises out of the defendant's submission in paragraph 1 of the written statement that he is a debtor within the meaning of the Bombay Agricultural Debtors' Relief Act of 1947 and this Court has no jurisdiction to try this suit. The Act of 1939 is not referred to in paragraph 1 of the written statement, and I have already expressed my opinion that the defendant is not entitled to rely on that Act, as that defence raises not only a question of law but also a question of fact. When faced with this difficulty, Mr. Desai referred me to the judgment of the Appeal Court in this suit (Appeal No. 67 of 1947, decided by Chagla C.J. and Tendolkar J., on March 3, 1948). That appeal arose out of a refusal by Mr. Justice Coyajee to give leave to the defendant to defend the suit when it came on for hearing before him on a summons for judgment and when he passed a decree on admissions against the defendant. The defendant preferred an appeal, and the appeal was allowed. In the course of his judgment, Chagla C.J. said:

No further pleadings are necessary because the affidavit of the defendant may be treated as the written statement where the point has been clearly raised.

Though the defendant had the right to have his affidavit treated as his written statement, he has chosen to put in a written statement, and I am therefore not inclined to refer to the affidavit of the defendant dated August 25, 1947. Mr. Desai said that in paragraph 3 of that affidavit the defendant has not referred to the year of the Act and has only referred in general terms to the Bombay Agricultural Debtors' Relief Act and that he is therefore entitled to rely on the Act of 1939. I do not think so, as the defendant by his written statement has expressly chosen to rely on the Act of 1947. If as Mr. Desai says now the Act of 1947 does not apply, then there is no defence on the Bombay Agricultural Debtors' Relief Act raised which I have to try.

12. There is one further point which I would like to draw attention and which does not seem to have been appreciated by counsel in the case who argued the matter before me. The Act of 1947 defines 'debtor' as follows:-

'Debtor' means-

(a) an individual-

(i) who is indebted;

(ii) who holds land used for agricultural purposes or has held such land at any time not more than 30 years before the 30th January 1940, which has been transferred whether under an instrument or not and which transfer is in the nature of a mortgage although not purporting to be so;

(iii) who has been cultivating land personally for the cultivating seasons in the two years immediately preceding the date of the coming into operation of this Act or of the establishment of the Board concerned under the repealed Act; and

(iv) whose annual income from sources other than agriculture and manual labour does not exceed 33 per cent, of his total annual income or does not exceed Rs. 500, whichever is greater.

This means that the individual referred to in Section 2, Sub-section (5)(a), is a person who complies with all the requirements of Sub-clauses (i) to (iv) of Sub-clause (a) and particularly in this case of Section 2, Sub-section (5)(a)(iii). The averments made in paragraph 1 of the written statement are not sufficient to constitute the defendant a 'debtor' within the meaning of Section 2, Sub-section (5)(a)(iii). The defendant's submission that he is a debtor, because of the facts alleged in paragraph 1 of the written statement, within the meaning of the Act of 1947, is therefore not correct, and therefore his further submission that this Court has no jurisdiction is also not correct.

13. It is clear on a reference to paragraph 1 of the written statement that the Act contemplated therein is the Act of 1947. Assuming that the Act of 1939 was the Act contemplated by the defendant, even then the material facts contemplated by Section 2, Sub-section (6), of that Act, which are necessary to constitute a 'debtor' within the meaning of Section 2, Sub-section (6), are not set out-see Section 2(6)(3), which says, 'who has been cultivating such land personally from a date prior to the 1st of April 1937.' and Section 2(6)(4), which says, whose annual income from sources other than agriculture and manual labour does not ordinarily exceed 20 per cent, of his total annual income, or does not exceed Rs. 300, whichever is greater. Now those are questions of fact which, in my opinion, should have been set out in the written statement. These are, however, not so set out, nor is the Act of 1939 referred to, and I am therefore confirmed in my opinion that the defendant is not entitled to raise any defence on the Act of 1939.

14. Mr. Mody for the plaintiff points out that in the plaint it is stated in paragraph 7 that the defendant resides in Bombay and that; this allegation is not denied in the written statement. It is true that the defendant says in his written statement that he holds land for agricultural purposes in the Thana District and has been cultivating land personally which would suggest as if he was residing within the jurisdiction of the Thana Court. But both in the Act of 1939 and in the Act of 1947 the expression 'to cultivate personally' has been defined to mean, 'to cultivate by one's own labour or by the labour of any member of one's family or by servants or hired labour under one's personal supervision or the personal supervision of any member of one's family.' From this it follows that a man may be residing in one place and cultivating land personally at another place. The defendant by his affidavit stated that he was residing at Borivli but he has not raised that contention by his written statement. Mr. Mody says that the word 'Court' in the Act means the Court having ordinary jurisdiction in the area where the defendant resides, and he says that as the defendant must be deemed by his written statement to have admitted that he was residing in Bombay, it follows that the Bombay High Court has jurisdiction. But I must point out that that submission is not correct as the definition of the word 'Court' refers to 'ordinary' residence. Now a man may be residing at more than one place-see Mulla's Civil Procedure Code, Eleventh edition, page 116, Orde v. Skinner. But ordinary residence is not the same as residence. In my opinion if the defendant wanted to have this suit referred to the 'Court' within the meaning of the Act of 1947, he should have mentioned the 'Court' within whose jurisdiction he was ordinarily residing, as that is a question of fact and not of law.

15. If, therefore, the defendant is not a 'debtor' within the meaning of the Act of 1939 or the Act of 1947, it may well be that the whole of the above discussion was unnecessary. But I expressed my opinion on that question as the point about the defendant not being a 'debtor' within the meaning of the Act of 1939 or the Act of 1947 was not argued before me.

16. For the reasons aforesaid I answer issue No. 1, namely, whether the defendant is a debtor within the meaning of the Bombay Agricultural Debtors' Relief Act, 1939 or 1947, in the negative.

17. As regards issue No. 2, namely, whether the defendant is an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act, I refer the suit to the Commissioner for ascertaining whether the defendant's income from agricultural sources for three years prior to the institution of the suit exceeds the income from non-agricultural sources.

18. As regards issue No. 3, namely, if either of the first two issues is answered in the affirmative, whether this Honourable Court has jurisdiction to try the suit, this will have to await the findings of the Commissioner.

19. So also issue No. 4 as to the amount due and payable to the plaintiff also will have to stand over.

20. As regards costs, the defendant will have to pay to the plaintiff the costs of and incidental to the hearing of the first issue. Further costs and further directions are reserved.


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