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S. Dhillu Singh Vs. S. Sohan Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 113-D of 1985
Judge
Reported inAIR1956P& H253
ActsDebt Law; Displaced Persons (Debts Adjustment) Act, 1951 - Sections 5, 10 and 11(2); Code of Civil Procedure (CPC) , 1908 - Sections 151
AppellantS. Dhillu Singh
RespondentS. Sohan Singh and anr.
Appellant Advocate R.S. Narula, Adv.
Respondent Advocate Anup Singh, Adv.
DispositionPetition dismissed
Cases ReferredMt. Jamna Kuer v. Lal Bahadur
Excerpt:
.....remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie..........of a different kind altogether. the preamble shows that the object of the act is the adjustment of debts by displaced persons and the recovery of certain debts due to them.7. the scheme of the act shows that if a debtor wants to make an application for the settlement of his debts he must do so under section 5 of the act within one year of the coming into force of the act. then the section prescribes the particulars which are to be given by the debtor making the application.section 10 deals with the claims by creditors against displaced debtors and it does not prescribe any limit of time within which these applications can be made. the procedure in such applications is that(sic) tribunal has to cause notice to be served on displaced debtors and then a displaced debtor can make an.....
Judgment:
ORDER

Kapur, J.

1. This is a rule obtained against an order made by Shri Bhatnagar acting as a Tribunal, Delhi, dated 10-12-1954 setting aside the order of dismissal in default of an application made under Section 10 by Sohan Singh dated 10-11-1953 under the provisions of Section 151, Civil P. C.

2. On 15-3-1953 Sohan Singh made an application under Section 10, Displaced Persona (Debts Adjust-merit) Act, LXX of 1951 and the debt mentioned therein was dated 12-5-1947 which it was alleged was due from Dhillu Singh and Saran Singh. On 16-2-1953 Dhillu Singh made an application under 5 of that Act as is required by Section 11(2) of the Act.

3. These two matters were pending in the Court of Mr. Hans Raj who on 10-11-1953 ordered the par-ties to the two applications to appear before Mr. Bhatnagar on that very day as they had been transferred to that Tribunal. As Sohan Singh did not appear before Mr. Bhatnagar the application under Section 10 was ordered to be dismissed at 4-45 p.m. and the case under Section 5 was adjourned for service. In the proceedings under Section 5 Mr. Sardara Singh appeared for Sohan Singh on 17-12-1953 before Mr. Bhatnagar.

4. On 19-1-1954 Sohan Singh applied for restoration of his application under Section 151, Civil P. C., and Section 25, Debts Adjustment Act. The reasons given for non-appearance were that both the cases were sent from the Court of Mr. Hans Raj and there was no list of causes showing Sohan Singh's case outside the Court of Mr. Bhatnagar and on enquiring about Section 5 application the petitioner came to know that it had been adjourned to the 17th December on which date he appeared and the case was adjourned to 23-2-1954 and that when he examined the file the applicant came to know that the petition under 10 had been dismissed in default.

5. Dhillu Singh objected to the restoration on the ground that the application was barred by rime and that there was no sufficient cause under Order 9, Rule 9 for its restoration and also that there was no ground for review nor did the matter fall under Section 151, Civil P. C. The learned Judge, however, treated the matter as a mistake of the Court and held that there was no bar for exercising his powers under Section 151 and restored the case on 10-12-1954.

6. The petitioner laid stress on the point that as there is a specific provision in the Civil Procedure Code Order 9 Rule 9 He has relied on several cases of the Lahore High Court and other High Courts. In all of these cases the ratio decidendi was that the inherent powers of the Court cannot be invoked where the application for restoration is barred by time.

These cases are Firm Duni Chand-Gokal Chand v. Pritam Das and others, AIR 1925 Lah 321 (2) (A), Jai Kishan Dass v. Chiragh Din, AIR 1935 Lah 60 (B), Karam Bhari v. Jagan Nath, AIR 1936 Lah 495 (C), Dobendra Nath v. Sm. Satyabala Dasi, AIR 1950 Cal 217 (D), Chinnappa Naidu v. B. K. Dcenadayalu Naidu, AIR 1948 Mud 480 (E) and U Aung Gyl v. Government of Burma, AIR 1940 Rang 162 (FB) (F).

These cases are, in my opinion, not applicable to the facts of the present case. The nature of the proceedings under the Debts Adjustment Acts are of a different kind altogether. The preamble shows that the object of the Act is the adjustment of debts by displaced persons and the recovery of certain debts due to them.

7. The scheme of the Act shows that if a debtor wants to make an application for the settlement of his debts he must do so under Section 5 of the Act within one year of the coming into force of the Act. Then the section prescribes the particulars which are to be given by the debtor making the application.

Section 10 deals with the claims by creditors against displaced debtors and it does not prescribe any limit of time within which these applications can be made. The procedure in such applications is that(sic) Tribunal has to cause notice to be served on displaced debtors and then a displaced debtor can make an application under Section 5 and the Tribunal is to proceed as if the proceedings commenced with an application by a displaced debtor under Section 5 and all the other provisions of the Act become applicable.

But if no such application is made, the claim of the creditor is to be adjudicated upon and therefore when an application is made under Section 5, the Tribunal has to proceed further in that application treating the matter as if the whole tiling had commenced with an application under Section 5.

In other words, the application under Section 10 re-mains in abeyance and when the matter under Section 5 is decided naturally the debt claimed under Section 10, if found to be due, becomes adjusted under Section 5 and therefore when the application on 15-2-1953 was made by Dhillu Singh under Section 5 that became the principal proceedings and Section 10 proceedings became merely a subsidiary proceedings to be decided either when the matter under Section 5 is decided or if no such application was made then independently. As I have said in the present case the application under Section 5 had been made and therefore there was nothing to be done under Section 10 until the matter under Section 5 was decided.

8. Mr. Hans Raj, acting as the Tribunal, on 6-8-1953 made an order giving effect to the provisions of the Debts Adjustment Act in the following words:

An application by respondent 1 under Section 5 of the Displaced Persons (Debts Adjustment) Act has been filed. To come up along with that application.'

Thus it was clear to Mr. Hans Raj as to what was to be done. I find that there is a note in the index of this case to the following effect--

'Aainda digar misel pesh hoti rahe'

9. As a matter of fact the application made by Dhillu Singh is headed as an application under Section 5(2) of the Act and it was claimed in this that relief be given to the petitioner under Act LXX of 1951. This particular debt although not admitted was mentioned at No. 1. Therefore these two proceedings, one under Section 10 and the other under Section 11(2) which is in the nature of an application under Section 5, were supplementary proceedings and one arose out of the other, the only difference being that the latter application had to be decided in order to decide the application under Section 10.

10. In my view the Tribunal could not dismiss the application and as he himself has pointed out it was a mistake on his part to have done so and it was certainly within the jurisdiction of a Tribunal when its attention was drawn to the fact to correct errors of this kind. That is the view which has been taken in several cases.

It was held, by Dalip Singh J. in Kalu 'Ram v. Ghazita Ram, AIR 1928 Lah 534 (2) (G), by Tek Chand J. in Dhanpat Rai v. Badri Das, AIR 1936 Lah 759 (H), in Fateh Chand v. Mt. Menghi Bai, 109 Pun Re 1913 (I) by the Calcutta High Court in Adwaitanand Tirthaswami v. Basudeo Nand, 6 Ind Cas 208 (Cal) (J) and by the Nagpur High Court in Goverdhan Sahaya v. Hemrajsingh Ratansingh, AIR 1944 Nag 335 (K), The matter, in my opinion, is concluded by the judgment of the Federal Court in Mt. Jamna Kuer v. Lal Bahadur, AIR 1950 FC 131 (L), where their Lordships laid down the following--

'Whether the error occurred by reason of the counsel's mistake or it crept in by reason of an oversight on the part of the Court was not a circumstance which could affect the exercise of jurisdiction of the Court to review its decision. We have no doubt that the error was apparent on the face of the record and in our opinion the question as to how the error occurred is not relevant to this enquiry. A mere look at the trial Court's decision indicates the error apart from anything else.'

11. It is quite clear that the order was made because of a mistake on the part of the Tribunal and he had jurisdiction to correct the error both under his powers of review and under its inherent jurisdiction. The principle actus legis nemini est damnesus has application to the facts of this case.

12. I would, therefore, dismiss this petition but leave the parties to bear their own costs throughout.


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