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Maghanamal Narumal and ors. Vs. Moolchand Gianchand - Court Judgment

LegalCrystal Citation
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 160 of 1958
Reported inAIR1961MP193; 1962MPLJ112
ActsDebt Law; Displaced Persons (Debts Adjustment) Act, 1951 - Sections 4, 36 and 53; Code of Civil Procedure (CPC) - Sections 115;
AppellantMaghanamal Narumal and ors.
RespondentMoolchand Gianchand
Appellant AdvocateDulani, Adv.
Respondent AdvocateBatham, Adv.
DispositionRevision allowed
Cases ReferredAct. (See Brij Lal v. Sunder Das
- - ' the definition was approved by lord atkinson as one of the best definitions of a judicial act as distinguished from an administrative act (frome united breweries v. 5000/-.24. the provisions of this act clearly show that the matters which are set out by the act for decision of the tribunal are of a civil nature for which civil suits would ordinarily he. vishnu pandurang, air 1950 nag 14. in that case the authority appointed under section 15 of the payment of wages act was held to be not a 'civil court'.that case is clearly distinguishable since the tribunal named there is not one of the established civil courts and may be presided over by person other than a judge of civil court. 29. on the merits of the case, i find that mulchand's claim was clearly barred by time......were 'deposits'.4. aggrieved by it, maghanmal filed this revision under section 115 of the code of civil procedure as the subject matter in dispute is less than rs. 5000/-, so that he could not prefer an appeal (section 41 of the act).5. shri batham raises a preliminary objection as to the competence of this revision. learned counsel lays stress on the expression 'court subordinate' to the high court. relying on sunder das v. lachman das, air 1957 all 352, it is argued that the tribunal under section 4 of the act is not a court subordinate to the high court and this court, has, therefore, no jurisdiction to interfere in revision with any order of the tribunal.6. in section 4 of the 1951 act, authority to exercise jurisdiction under it is given to the 'tribunal or tribunals'. in the new.....

Shiv Dayal, J.

1. This revision arises out of proceedings under Section 5 of the Displaced Persons (Debts Adjustment) Act, No. 70 of 1951 (hereinafter called the 1951 Act).

2. Maghanmal applied on 9-9-1952, to the Tribunal constituted under Section 4 of the 1951 Act for adjustment of his debts. In the list of creditors he mentioned the name of Mulchand with the remark that the owed him nothing still he (Mulchand) demanded repayment of an alleged loan. Other creditors are not concerned with this revision.

3. Mulchand had made a separate application under Section 10 of the 1951 Act making a claim of Rs. 5,500/- against Maghanmal. On 1-5-1953, that petition was dismissed on the ground that Maghanmal had already filed a petition under Section 5 of the Act. Thereupon, on 16-9-1953, Mulchand made an application to the Tribunal in Maghanmal's case, for the determination of his debt. Maghanmal resisted Mulchand's claim. Shri S.L. Chopta, learned Civil Judge First Class, acting as the tribunal constituted) under Section 4 of the Act, held that a sum of Rs. 3600/- was due by Maghanmal to Mulchand on account of two transactions and that the claim was within limitation because they were 'deposits'.

4. Aggrieved by it, Maghanmal filed this revision under Section 115 of the Code of Civil Procedure as the subject matter in dispute is less than Rs. 5000/-, so that he could not prefer an appeal (Section 41 of the Act).

5. Shri Batham raises a preliminary objection as to the competence of this revision. Learned counsel lays stress on the expression 'Court subordinate' to the High Court. Relying on Sunder Das v. Lachman Das, AIR 1957 All 352, it is argued that the tribunal under Section 4 of the Act is not a court subordinate to the High Court and this Court, has, therefore, no jurisdiction to interfere in revision with any order of the tribunal.

6. In Section 4 of the 1951 Act, authority to exercise jurisdiction under it is given to the 'Tribunal or Tribunals'. In the new set up and with the development of social, economic and political ideas many a right have to be recognized which formerly were not subject matters of 'lis'. The policy of the State has been to create special tribunals for their enforcement. In Bharat Bank v. Their Employees, 1950 SCR 459 : (AIR 1950 SC 188), Mukherjee J. observed that

'owing to the intricate and complicated system of Government that exists in a modern State and the vast extension of social legislation of all sort, the so called administrative and quasi-judicial tribunals have come to be a permanent feature of our social and political system. They function as adjudicating bodies in disputes concerning large number of economic and social affairs .....The question iswhat are the tests or distinguishing features, which disassociate an administrative tribunal from a Court of law'.

7. Originally the term 'court' meant, among other meanings, the Sovereign's palace. It has acquired the meaning of the place where justice is administered and, further has come to mean the persons who exercise judicial functions under authority derived either immediately or mediately from the Sovereign. All tribunals, however, are not courts. (Halsbury's Laws of England (Salmond Edition) at page 342).

8. Some of the Authorities or Tribunals constituted under special Acts take evidence on oath, act in a judicial manner and pronounce upon valuable rights. They may or may not be civil courts. The line of demarcation between administrative tribunals and Courts of Civil judicature is difficult to be drawn. It was observed) by Lord Sankey K.C. in Shell Co. of Australia v. Federal Commissioners of Taxation, 1931 AC 275 :

'The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power.....In thatconnection it may be useful to enumerate some negative propositions on the subject: (1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision; (2) Nor because it hears witnesses on oath; (3) Nor because two or more contending parties appear before it between whom it has to decide; (4) Nor because it gives decisions which affect the rights of subjects; (5) Nor because there is an appeal to a Court; (6) Nor because it is a body to which a matter is referred by another body.'

9. Our Civil Procedure Code does not define the word 'Court'. Section 3 of the Indian Evidence Act defines a 'Court' as including all Judges and Magistrates and all persons except arbitrators legally autherised to take evidence. Section 20 of the

Penal Code defines the expression 'Court of Justice' as to denote a Judge who is empowered by law to act judicially alone or a body of judges which is empowered by law to act judicially as a body, when such Judge or body of judges is acting judicially.

And Section 19 of that Code defines the word 'judge' as denoting not only every person who is officially designated as a Judge, but also every person who is empowered by law to give in any legal proceeding, civil or criminal, a definitive judgment, etc. To determine whether a tribunal is or is not a judicial body it is stated in 9 Halsbury (Salmond) 342:

'The question is whether the tribunal is a Court, not whether it is a Court of justice, for there are Courts which are not courts of justice. In determining whether a tribunal is a judicial body the facts that it has been appointed by a non-judicial authority, that it has no power to administer an oath, that the chairman has a casting vote, and that third parties have power to intervene are immaterial, specially if the statute setting it up prescribes a penalty for making false statements; elements to be considered are (1) the requirement for a public hearing subject to a power to exclude the public in a proper case, and (2) a provision that a member of the tribunal shall not take part in any decision in which he is personally interested, or unless he has been present throughout the proceedings.'

10. In the Bharat Bank case, 1950 SCR 459; (AIR 1950 SC 188) cited above, Mukherjee J. laid down two tests for distinguishing a Court from a tribunal. (1) To be a Court, the determination by its own force and without the aid or instrumentality of any other authority or power must affect the rights and obligations of the parties.

(2) A judicial body decides the controversies according to law while a quasi-judicial or administrative body is not bound strictly to follow the law for its decision.

11. It was laid down in Pitman's Shorthand Academy v. B. Lila Ram and Sons, AIR 1950 EP 181 (FB), (S.R. Das, C.J., Bhandari and Kapur, JJ.):

'A court of law may, therefore, be defined as a tribunal dealing with and adjudicating upon civil disputes by operation of law in a judicial manner untroubled by ulterior considerations or matters of executive policy and observing certain defined rules of procedure which are either defined by statute or recognised by practice.'

12. This brings me to the question : what is a judicial act? While dealing with the proposition that a writ of certiorari does not lie to remove an order merely ministerial, but lies to remove and adjudicate upon the validity of acts judicial, a definition was formulated) by May C. J. in R. v. Dublin Corporation, (1878) 2 LR Ir 371 :

'In this connection the term 'judicial' does not necessarily mean acts of a Judge or Legal tribunal sitting for the determination of matters of law, but for the purpose of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the right of others.'

The definition was approved by Lord Atkinson as one of the best definitions of a judicial act as distinguished from an administrative act (Frome United Breweries v. Bath Justices, 1926 AC 586).

13. Distinction between 'judicial' and 'Quasi-judicial' was pointed out in Cooper v. Wilson, (1937) 2 KB 309 thus :

'A true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites :

(1) The presentation of their case by the parties to the dispute;

(2) If the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and even with the assistance of argument by or on behalf of the parties on the evidence;

(3) If the dispute between them is a question of law, the submission of legal argument by the parties and.

(4) A decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.

A quasi-judicial decision involves (1) and (2) but does not necessarily involve (3) and never involves (4).'

14. Their Lordships reviewed the distinction between a ministerial act and a judicial act in the Province of Bombay v. Khushaldas Adwani, 1950 SCR 621 : (AIR 1950 SC 222). Mukherjee J. pointed out that in the performance of an executive act, the authority has certainly to apply his mind to the materials placed before him, but the opinion he forms is a purely subjective matter which depends entirely on his state of mind.

In a judicial proceeding on the other hand, process or method of application is different. The judicial process involves the application of a body of rules or principles by the technique of a particular psychological method 'It involves a proposal and an opposition and arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice.' (See R. v. London County Council, (1931) 2 KB 215 at page 233.

15. Frequently, even though a special jurisdiction is created, the tribunal to be appointed is named in the special Act as one of the ordinary Courts of civil judicature. In the leading English case of National Telephone Co. v. Post Master General, (1913) AC 546, Lord Atkinson observed;

'It is simply the question of extending the jurisdiction of an existing Court of law, with, all its incidents including a right of appeal, to a new matter closely resembling in character those matters over which it has a ready jurisdiction as a Court of law.' And) Lord Parker said :

'Where by a statute matters are referred to the determination of Court of record without any further provision the necessary implication is, I think, that the Court will determine the matters, as a Court. Its jurisdiction is enlarged but all the incidents of jurisdiction, including the right of appeal from its decision, remain the same.'

16. The Privy Council expressed an identical view in Balkrishna Udayar v. Vasudeba Aiyar, 44Ind App 261 : (AIR 1917 PC 71), a case under Section 10 of the Religious Endowments Act. Their Lordships pointed out that it was to the Civil Court and not to the individual Judge who presided over or constituted the civil Court that jurisdiction was given.

17. These decisions were followed in Kiron Chandra v. Kalidas Chatterjee, ILR (1943) 2 Cal 272 : (AIR 1943 Cal 247).

18. In some decisions authorities constituted under special acts have been held to be civil courts and subordinate to the High Court for the purposes of section 115 of the Code of Civil procedure (See for instance, AIR 1946 Mysore 316 (FB) (Sic); Dr. Shayamakant Verma v. Dr. Harishanker Prasad, AIR 1954 Pat 65; Sadu Yesu v. Ganpat Laxman, AIR 1956 Bom 672 and River Steam Navigation Company, Ltd. v. Shyam Sunder Tea Co., Ltd., AIR 1956 Assam 1). In some other cases revenue officers constituted under certain special Acts were held to be not civil Courts subordinate to the High Court and, therefore, not amenable to the jurisdiction under Section 115 C. P. G. (For instance, Srinivasa Rajamani Rajah Deo v. Senapathi Jagannayakulu, AIR 1932 Mad 612 (FB); Jagabandhu Das v. Babaji Jena, AIR 1953 Orissa 274; may be referred to). In Phulkumari v. State, (S) AIR 1957 All 495, it is held that the word 'Court' within the C. P. C. necessarily means the Court of civil judicature; that is to say, only courts which are created by the Civil Courts Act of the State, and other courts are not civil Courts.

19. In Nilmoni Singh v. Taranath Mukherji, 9 Ind App 174 (PC), the Privy Council had to decide whether a Rent Court constituted under the Bengal Rent Act was a Civil Court. Their Lordships observed:

'In that there is a distinction between the terms; but it is another question whether the rent Court does not remain a civil Court in the sense that it is deciding on purely civil questions between the persons safeguarding their civil rights and whether being a civil court in that sense it does not fall within the provisions of Act VIII of 1859.'

20. Following the observations of the Privy Council in Nilmoni Singh's case, 9 Ind App 174 (PC), Venkatarama Ayyar J. held in Sriramarao v. Suryanarayana Murti, AIR 1954 Mad 340 that the courts constituted for deciding on purely civil questions between persons seeking their civil rights must be considered to be civil courts notwithstanding that they are created! by a special statute.

21. In Raja of Venkatagiri v. Mahaboob Saheb, AIR 1944 Mad 139, Patanjali Shastri J. observed :

'There can be little doubt that in the present case the Sub-Collector and the District Collector exercising powers under Section 15(4) of the Madras-Act (IV of 1938) were hearing and determining disputes of a civil nature and we see no sufficient reason why the proceedings before them should not be regarded as civil proceedings and their courts as 'civil Courts' for purposes of Section 3 of the Code of Civil Procedure.'

In that case it was held that the Collector and District Collector were subordinate to the High Court and subject to its revisional jurisdiction under Section 115 of the Code of Civil Procedure.

22. On a review of the case law, generally speaking, the legal position may be summed up thus :

(1) The question whether an authority constituted under a special statute is an administrative body or a tribunal discharging the functions of judicial character or a Court, has to be answered by reference to the nature of the powers conferred on the authority by the statute. The distinction does not lie either in the label or in the trappings.

(2) When a tribunal deals with and adjudicates upon civil disputes by operation of law in a judicial manner untroubled by ulterior considerations or matters of executive policy and observes certain defined rules of procedure laid down in the statute or recognised by practice, it is a 'Court'.

(3) Where a statute provides that a particular matter shall be determined by a 'Court' within the hierarchy of courts mentioned in Section 3 of the C.P.C., and not by an individual Judge, the officer presiding over that court exercises his jurisdiction as 'Court' and not as 'persona designata'.

(4) When, the expression used is not 'Court' but 'Judge' : one has to look to the entire provision and the scheme of the statute for the purpose of determining whether the matter is to be heard by the judicial officer as a court or in his own personal capacity.

(5) Where it is only a civil Court which can be appointed as a tribunal under a certain Special Act, tribunal adjudicates upon rights and liabilities of a civil nature, proceedings before it are regulated by the Code of Civil Procedure, it passes decrees and orders and also executes them, appeals lie from such decrees and orders there can be no doubt that such a tribunal although so called, is essentially a civil Court.

23. Adverting to the provisions contained in the 1951 Act what I find is this : (1) Section 2 (12)defines a 'tribunal' to mean any civil Court specified under section 4 of the Act as having authority to exercise jurisdiction under the Act; (2) Section 4 of the Act provides that the State Government may by notification in the official gazette specify any civil Court or class of civil Courts as the tribunal or tribunals having authority to exercise jurisdiction under the Act and may define the areas in which and the extent to which such jurisdiction may be exercised; (3) Sections 9, 11 and 14 of the Act provide that the tribunal shall, after considering such evidence as may be produced before it, pass such decree in relation to the claim as it thinks fit; (4) Section 25 then runs thus :

'Save as otherwise expressly provided in this Act or in any rules made thereunder all proceedings under this Act shall be regulated by the provisions contained in the Code of Civil Procedure,1908 (Act V of 1908).'

(5) Section 28 confers on the tribunal powers of execution of decrees and orders passed by it, as a civil Court and (6) Section 40 provides for appeals from final decrees and orders and also from orderspassed in the course of execution as if appealable under the C.P.C. although a minimum pecuniary limit is fixed at Rs. 5000/-.

24. The provisions of this Act clearly show that the matters which are set out by the Act for decision of the tribunal are of a civil nature for which civil suits would ordinarily He. Those matters have to be decided judicially and the entire procedure is to be regulated by the Code of Civil Procedure. Further, the 'tribunal' to be appointed under Section 4 must necessarily be one of the civil Courts. In my judgment, therefore, the tribunal is a civil Court so as to be amenable to the jurisdiction under Section 115 of the C. P. C.

25. The view that I am taking is supported by the decision in Ram Labhaya v. Kripa Ram, ILR 1955 Punjab 490, and Union of India v. Gopichand, ILR 1954 Patiala 527. With great respect I find myself unable to follow the view taken by the Allahabad High Court in AIR 1957 All 352, since all what I have said above has not been considered in that decision. There is nothing in the language of Section 115 C.P.C. to restrict its scope only to orders passed by Courts constituted under the Civil Courts Act. Section 115 C. P.C. equally applies to proceedings before a tribunal which is an much such Court as any other so called.

26. Shri Bathan also relies on the case of Sawatram Ram Prasad Mills Co., Ltd. v. Vishnu Pandurang, AIR 1950 Nag 14. In that case the Authority appointed under Section 15 of the payment of Wages Act was held to be not a 'Civil Court'. That case is clearly distinguishable since the tribunal named there is not one of the established civil Courts and may be presided over by person other than a Judge of civil Court.

27. The decision of my Lord the Chief Justice and my learned brother A, H. Khan J. in C. M.P. 108 of 1959, (Lakhmi Chand v. Hazarilal) relied on by Shri Dulani is not helpful either. That was a case arising out of a matter under the Gwalior Agricultural Debtor's Relief Act and an order passed by the Debt Relief Court was held revisable under Section 115. It is expressly provided in Section 18 of that Act that the Debt Relief Court shall have the same power and! shall follow the same procedure as a court of original civil jurisdiction.

28. For all these reasons the preliminary objection is overruled.

29. On the merits of the case, I find that Mulchand's claim was clearly barred by time. It seems to me that the learned Tribunal has not correctly stated the facts in its judgment. The truth of the matter is that this was not a case of 'deposit'. Mulchand himself stated in his petition that Maghanmal owed him two 'loans'. A sum of Rs. 5000/-was borrowed on 4-8-1947 and another sum of Rs. 2000/- was borrowed on 19-8-1947. I do not find anything on record to hold that the transactions were in the nature of deposits and not loans.

Now it is Article 57 of the Limitation Act which applied and the period of limitation ran out of the 4th and the 19th August of the year 1950, respectively. Maghanmal and Mool Chand arc both displaced persons. The displaced creditor could have got the benefit of extension of limitation under Section 36of the Act provided his claim had been within limitation on 8-12-1950. This position is transparent from the following provisions :

(1) In Section 8 of the Displaced Persons (Institution of Suits) Act, No. 47 of 1948, as amended by Act No. 68 of 1950, it was provided that a suit or other legal proceeding by a displaced person against a displaced person could be instituted at any time before 31-3-1952, provided the period of limitation expired after 8-12-1950, (on which date the Displaced Persons (Institution of Suits and Legal Proceedings) Amendment Act, 1950, commenced). In other words, a suit or application against a displaced person must have been within time on 8-12-1950 otherwise the benefit of Section 3 of the 1950 Act was not available.

(2) Section 36 of the 1951 Act reproduced the same provisions, except that the date '31st March 1952' was extended to 'one year after the commencement of the 1951 Act' which came into force in the Madhya Bharat on 20-12-1951. That is to say, a suit could be instituted and an application could be made in respect of a claim upto 20-12-1952 subject to the condition that it had not become barred on 8-12-1950.

30. In the present case, as the period of limitation for both the claims of Mulchand had become barred by time on the 4th and the 19th August, 1950, the benefit of the extension of limitation under the 1948 Act or the 1951 Act is not available to him.

31. Shri Batham's contention that Mulchand's application was not a suit but was one made by a 'defendant' so that no question of limitation arose, is without force. In Section 53 there is a special provision with respect to limitation for an application making a claim under the provisions of the 1951 Act and accordingly it must be treated as a suit for the purposes of the Act and: the relevant Article of Limitation Act applies, the only benefit which is available to the creditor being the one given, by Section 36 of the Act. (See Brij Lal v. Sunder Das, ILR 1955 Patiala 187).

32. In) the result, this revision is allowed. Thejudgment and order passed by the tribunal holdingMaghanmal liable to pay to Mulchand a sum ofRs. 3600/- are set aside. In the circumstances ofthe case I leave the parties to bear their own coststhroughout.

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