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Alikutty Sahib Vs. Cherian and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberA.S. No. 177 of 1955 (M)
Judge
Reported inAIR1961Ker138
ActsDebt Law; Madras Indebted Agriculturists (Temporary Relief) Act, 1954 - Sections 3 and 4
AppellantAlikutty Sahib
RespondentCherian and ors.
Appellant Advocate M.C. Sridharan, Adv.
Respondent Advocate V.P. Gopalan Nambiar and; P.C. Balakrishna Menon, Advs.
DispositionAppeal dismissed
Cases ReferredChettiar v. Reliance Bank of India
Excerpt:
commercial - suit for recovery - sections 3 and 4 of madras indebted agriculturists (temporary relief) act, 1954 and order 8 rule 11 of code of civil procedure, 1908 - suit for recovery of debt from agriculturist - section 3 puts absolute embargo on institution of suit for recovery of debt from agriculturist - suit liable to be rejected under order 8 rule 11 as barred by law. - - 20,000/- executed by the defendants in favour of the 3rd defendant and endorsed by the latter to the plaintiff. (3) in the case of suits or applications of the nature mentioned in section 3, instituted or made against an agriculturist, the provisions of the madras tenants and ryots protection act, 1949 (madras act xxiv of 1949), or of section 54 or section 55 of the malabar tenancy (amendment) act, 1951..........commencement of this act. explanation i. -- 'suit' does not include a claim to a set-off made in a suit instituted by art agriculturist. explanation ii. -- where a debt is payable by an agriculturist jointly or jointly and severally with a non-agriculturist, no suit or application of the nature mentioned in this section, shall be instituted or made either against the non-agriculturist or against the agriculturist before the expiry of the period mentioned in this section. explanation iii. -- a suit shall be deemed to be a suit for the recovery of a debt notwithstanding that other reliefs are prayed for in such a suit, and a decree shall be deemed to be a decree for payment of money passed in such a suit notwithstanding that other reliefs are granted by such decree : provided that a suit.....
Judgment:

Joseph, J.

1. The main question for decision in this appeal id whether a suit for recovery of a debt from an agriculturist, instituted when the Madras Indebted Agriculturists (Temporary Relief) Act, V of 1954, was in force, could be dismissed or could only be stayed under Section 4 of the Act. A Division Bench which heard the appeal has referred the same to a Full Bench as the correctness of an earlier decision of a Single Judge of this court holding that such a suit should be stayed was canvassed before it.

The plaintiff sued for recovery of Rs. 10000 and interest due from defendants 1 and 2 (father and son) under a registered promissory note for Rs. 20,000/- executed by the defendants in favour of the 3rd defendant and endorsed by the latter to the plaintiff. The defendants contended that they were 'agriculturists' within the definition of the term in Act V of 1954 (Madras) and that the suit filed in contravention of Section 3 of the Act should be dismissed. Issue No. 1 which dealt with this question was tried as a preliminary issue and the court below came to the conclusion that the defendants were agriculturists. The suit was accordingly dismissed and the plaintiff has preferred this appeal.

3. The two points raised on behalf of the appellants are (1) that the defendants were not agriculturists and (2) that even if they were agriculturists, the suit should have been stayed under Section 4 of the Act and not dismissed. As the whole case has been referred for decision both points have to be decided.

4. As regards the first question, namely, whether the defendants are agriculturists, evidence was adduced by both sides and after considering the same, the learned Judge upheld the defence contention. Counsel for the appellant prayed for a remand to enable his client to adduce more evidence on the point. We do not think this prayer can be granted.

5. The term 'agriculturist' has been definedIn the Act as

'a person who owns an interest in land, and who, by reason of such interest, is in possession of such land or is in receipt of the rents or profits thereof and shall include a lessee'.

It has been proved that the plaintiff's father granted a kanomkuzhikanom right over 504 acres of land to the first defendant under Ex. B-l and that the same is still subsisting.

The plaintiff attempted to prove that the first defendant had parted with his rights over the entire property and that he was not therefore an agriculturist. Ext. Al is copy of the gift deed executed by the first defendant on 17-9-1948 and this shows that he gifted 470 out of 504 acres to his children and brother-in-law. It was urged on behalf of the appellant that even though the extent was mentioned in Ext. Al as 470 acres, the whole area coveredby Ext. B1 was actually gifted. The evidence adduced by the plaintiff shows that this allegation is not correct.

The kanom amount under Ext. Bl was Rs. 50/-and the proportionate amount made chargeable on the property gifted was only Rs. 45/-. The purapad under Ext. Bl was also apportioned under Ext. Al. It is therefore clear that only a part of the area was demised under the gift deed. This leaves a balance of 34 acres out of which 19 acres have been subleased under Exts. B6 and B7. The first defendant deposed that he still had 15 acres in his possession.

The plaintiff has no case that anything more than 19 acres has been sub-leased by the first defendant. Pw. 1 admitted that he had no personal knowledge as to whether the first defendant was directly in possession of any area. The sub-leases Exts. B6 and B7 show that the first defendant was in receipt of rents from the sub-lessees. Pw. 1 stated that the first defendant leased a portion of Ext. Bi property to others. This shows that after executing the gift deed he had more lands in his possession and that it was only a portion of such land that was sub-leased by him.

It was also admitted that the kanom-kuzhikanom lease was subsisting and that the plaintiff's father had obtained a decree against the first defendant for arrears of rent. Such being the evidence on the point it is clear that defendants 1 and 2 were agriculturists on the date of the institution of the suit, and no useful purpose will be served by remanding the case to enable the plaintiff to take out a commission to ascertain the area. We confirm the finding of the learned Judge on this point

6. Coming to the second question, the appellant relies on a decision of Sankaran, J., (as he then was), in Badsha Stores v. P.V.K. Govindankutty, 1957 Ker LT 239: ((S) AIR 1957 Kerala 41) holding that the dismissal of a suit under such circumstances is not proper and that suits filed when the Act was in force had only to be stayed under Section 4. Before considering the correctness of this view the relevant provisions of the Act may be extracted :

'No suit for the recovery of a debt shall be instituted, no application for the execution of a decree for payment of money passed in a suit for the recovery of a debt shall be made and no suit or application for the eviction of a tenant on the ground of non-payment of a debt shall be instituted or made, against any agriculturist in any civil or revenue court before the expiry of a year from the date of commencement of this Act.

Explanation I. -- 'Suit' does not include a claim to a set-off made in a suit instituted by art agriculturist.

Explanation II. -- Where a debt is payable by an agriculturist jointly or jointly and severally with a non-agriculturist, no suit or application of the nature mentioned in this section, shall be instituted or made either against the non-agriculturist or against the agriculturist before the expiry of the period mentioned in this section.

Explanation III. -- A suit shall be deemed to be a suit for the recovery of a debt notwithstanding that other reliefs are prayed for in such a suit, and a decree shall be deemed to be a decree for payment of money passed in such a suit notwithstanding that other reliefs are granted by such decree :

Provided that a suit for possession of land shall not be deemed to be a suit for recovery of a debt by reason merely of mesne profits being also prayed for in such a suit.

(4) (1) All further proceedings in suits and applications of the nature mentioned in Section 3 in which relief is claimed against an agriculturist, not being proceedings for the amendment of pleadings or for the addition, substitution, or the striking oft of parties, but otherwise inclusive of proceedings consequent on orders or decrees made in appeals, revision petitions or applications for review, shall, subject to the next succeeding sub-section, stand stayed until the expiry of a year from the date of commencement of this Act :

Provided that, in regard to property under attachment, the court may pass such orders as it deems necessary for the custody or preservation of the property or for the sale of such property if it is subject to speedy or natural decay, or, if in respect of it, the expenses of custody or preservation are considered excessive.

(2) On application made by the defendant or the respondent or by all the defendants or all the respondents, as the case may be, the stay effected by Sub-section (1) in a suit or application shall be dissolved and the suit or application shall be proceeded with from the stage which had been reached when further proceedings in the suit or the application were stayed.

(3) In the case of suits or applications of the nature mentioned in Section 3, instituted or made against an agriculturist, the provisions of the Madras Tenants and Ryots Protection Act, 1949 (Madras Act XXIV of 1949), or of Section 54 or Section 55 of the Malabar Tenancy (Amendment) Act, 1951 (Madras Act XXXIII of 1951) shall not have effect in so far as the said provisions are inconsistent with the provisions of Sub-section (1).

(5) (1) In computing the period of limitation or limit of time prescribed for a suit for the recovery of a debt or an application for the execution of a decree passed in such suit, the time during which the institution of the suit or the making of the application was barred by Section 3 of the Ordinance or Section 3 of this Act, or during which the plaintiff or his predecessor-in-title, believing in good faith that Section 3 of the Ordinance or Section 3 of this Act applied to such suit or such applications, refrained from instituting the suit or making the application, shall be excluded.

Explanation: 'Good faith' shall have the meaning assigned to it in Section 3 (22) of the General Clauses Act, 1897 (Central Act X of 1897).

(2) Where in a suit or an application in which the question of the exclusion of time under Sub-section (1) arises, the defendant or the respondent or one of the defendants or respondents, with respect to whom the question is raised, would have been an agriculturist but for the fact that in the year ending 1951-52, 1952-53 or 1953-54, he had been assessed to income-tax (Central Act XI of 1922), it shall be conclusively presumed that, in refrainingfrom instituting the suit or making the application, the creditor believed in good faith that such defendant or respondent was an agriculturist.'

7. Sankaran, J., held that Section 3 was not an absolute prohibition against the institution of suits against agriculturists and that such suits had to be stayed under Section 4 if the plaintiffs bad instituted such suits in the bona fide belief that the defendants were not agriculturists. The grounds relied on in arriving at this conclusion were that Section 3 would apply only if the plaint disclosed that the defendant was an agriculturist, that there was no provision in the Act for dismissal of a suit filed in contravention of Section 3 and that Section 4 was couched in such general terms as to include suits filed during the period when the Act was in force, i.e., for one year from 25-2-1954.

We are unable to uphold this view. What Section 3 provides is that 'no suit for the recovery of a debt shall be instituted .....'. This in our opinion is an absolute embargo on the institution of a suit for recovery of a debt from an agriculturist. Sankaran, J. has pointed out that the plaint can be rejected under Rule 11 of Order VII of the Code of Civil Procedure only when the suit appears from the statement in the plaint to be barred by any law.

Apart from the rejection of a plaint under Order VII the court has jurisdiction to dismiss the suit if it conies to the conclusion that there is a bar to the institution of the suit. There may be cases like the present one where the parties are at issue on the question whether the defendants are agriculturists, In such a case the court is bound to try the issue and if it finds that the defendants arc agriculturists, it has jurisdiction to dismiss the suit.

8. Coming to the second ground that there is no provision in the Act for the dismissal of the suit filed in contravention of Section 3, we may point out that when the bar to the institution of such a suit is absolute, an express provision in the statute for dismissal of the suit is unnecessary.

9. As regards the last ground, viz., that Section 4 is wide enough to cover a suit instituted in contravention, of Section 3, we are of opinion that Section 4 relates to suits which were instituted earlier and were pending on the date this Act came into force. The first clause of Section 4 makes this clear. It refers to all further proceedings in suits and applications of the nature mentioned in Section 3. Section 4 thus contemplates 'further proceedings' after the commencement of the Act.

In referring to suits and applications, the provision is 'suits and applications of the nature mentioned in Section 3' and not suits and applications instituted or made in contravention of Section 3. Section 4 does not therefore justify the conclusion that it applies to suits instituted after Act V of 1954 came into force. We may in this connection observe that the conclusion reached by us is in consonance with the decision of the Madras High Court in Palani-chami Chettiar v. Reliance Bank of India, Limited, 11956-2 Mad LJ I, which Sankaran, J., declined to follow. In our opinion 1957 Ker LT 239 : ((S) AIR 1957 Kerala 41), does not lay down the law correctly.

10. In view of the above conclusion it follows that the dismissal of the suit by the trial court was proper. It was urged on behalf of the appellant that in the succeeding Acts, such as Act I of 1955 (Madras) and Act XXXI of 1958 (Kerala) there was no provision for the dismissal of such suits and that the appeal being a continuation of the suit, the law now in force should be applied.

We are unable to accept this argument. The point arising for decision is whether the decision of the court below dismissing the suit is proper. The suit was dismissed while Act 5 of 1954 (Madras) was in force and that was the proper thing to do in the circumstances.

11. The last submission made on behalf of the appellant was that a fresh suit on the same cause of action was competent, that he had time till 7-2-1956 to institute such a suit and that if the period of pendency of this appeal which was filed on 2-3-1955 is excluded a fresh suit would still be in time. The question whether the period of pendency of this appeal can be excluded under Section 14 of the Limitation Act is not a matter which we arc called upon to decide in this appeal as the question wilt properly arise if and when the plaintiff institutes a fresh suit.

12. In the result, the decree of the court belowis confirmed and the appeal is dismissed, aS theappeal fails on a question of law on which there wasdifference of opinion, we direct both sides to beartheir costs in this court.


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