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Devben Wd'o. Sadhuram Joturam Vs. Motiram Hotamchand (28.02.1979 - GUJHC) - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1979)1GLR875
AppellantDevben Wd'o. Sadhuram Joturam
RespondentMotiram Hotamchand
Cases ReferredBhola Singh and Ors. v. Gosto Behari Sarkari
Excerpt:
- - distress proceedings, which are initiated ex-parte and which are ex facie of the summary character, cannot be said to be proper proceedings for dealing with contentious questions like the one that has been raging in this litigation. shah's submission is not well-founded, because section 60 itself presupposes prima-facie examination of the contentions. if the petitioners are serious about realising their dues, they can very well file the suits and get the moneys attached, or get a prohibitory order restraining the respondents from withdrawing that amounts from the court......was seriously challenged and the liability was stoutly denied. the court ultimately held that the summary proceedings under section 53 were not the proper proceedings in which such contentious questions pertaining to title, rights and liability can be adjudged. the result was that the court rejected the main application under section 53. then six different revision applications were filed against those six orders which were dismissed by the appellate bench by a common judgment running into 19 typed pages. the appellate bench of the small causes court at ahmedabad concurred with the conclusion of the trial judge. the present six revision applications are, therefore, filed by the petitioners challenging the said orders.2. for the purpose of this judgment, i assume that these revision.....
Judgment:

N.H. Bhatt, J.

1. These six different Revision Applications filed by the common petitioners, but against different respondents initially arose out of different Distress Warrant proceedings against these opponents. These Distress Warrant Applications were filed by these petitioners under Section 53 of the Presidency Small Causes Court Act, which is admittedly applicable to the City of Ahmedabad. In each of these Distress proceedings, the Small Causes Court, Ahmedabad had issued Distress Warrants, but before their properties could be seized, each of them had deposited the amount of the claim and contended that Sadhuram, through whom the two petitioners in each of these six petitions claimed was adjudged to be a trespasser in respect of the suit land in a proceeding between Sadhuram on one hand and the owners of the land, namely, some members of the Surti family of Ahmedabad, and, therefore, they were not liable to be proceeded against. The right of the petitioners, therefore, was seriously called in question. These objections filed by the respondents in those six Distress proceedings were treated by the Small Causes Court Judge as the applications under Section 60 of the Act. Considerable evidence was led, both oral and documentary, before the; learned Judge, who ultimately concluded that the question of title was greatly in the contest. The right to the alleged amount of rent, which was for seven months in all these oases, was seriously challenged and the liability was stoutly denied. The court ultimately held that the summary proceedings under Section 53 were not the proper proceedings in which such contentious questions pertaining to title, rights and liability can be adjudged. The result was that the court rejected the main application under Section 53. Then six different revision applications were filed against those six orders which were dismissed by the Appellate Bench by a common judgment running into 19 typed pages. The appellate Bench of the Small Causes Court at Ahmedabad concurred with the conclusion of the trial Judge. The present six revision applications are, therefore, filed by the petitioners challenging the said orders.

2. For the purpose of this judgment, I assume that these revision applications are competent under Section 29 (2) of the Bombay Rent Act, but Mr. Shah tells me that all these applications are filed under Section 115 of the Civil Procedure Code. The first ground on which I decline to interfere with the orders of the courts below is that these petitioners have a suitable remedy open to them to file the suits under Section 18 of the Presidency Small Causes Court Act or Section 28 of the Bombay Rent Act for the purpose of realising this rent and in such suits, the question of title also can be incidentally gone through as or the legal provision, namely, Section 29-A of the Bombay Rent Act. As more efficacious remedy is available to these petitioners, J am not inclined to exercise this discretionary jurisdiction of mine under Section 115 of the Civil Procedure Code. Even apart from this, on merits also 1 find that the appellate Bench's judgment is proceeding on a sound footing. The elaborate discussion of the evidentiary material in the judgment of the Appellate Bench is by itself sufficient proof of the fact that the question of title was hotly debated and is, therefore, highly in the contest between the parties. Distress proceedings, which are initiated ex-parte and which are ex facie of the summary character, cannot be said to be proper proceedings for dealing with contentious questions like the one that has been raging in this litigation. On this view, I am fortified by the judgment of the Calcutta, High Court in the case of Bhola Singh and Ors. v. Gosto Behari Sarkari : AIR1966Cal199 which is a case directly on all fours as far as the principle is concerned. The Calcutta High Court in that case has observed as follows:

The Small Cause Court procedure for distress under Chapter VIII of the Act is a summary remedy by which a person seeks an immediate redress to take into his possession the movables of any person to be held as almost a pledge to compel the performance of the satisfaction of a debt; the debt however, must be a debt and not a mere pretence to cover controversial questions of title. This distress warrant or its procedure is not a suit. The procedure is a summary one because it starts ex-parte on a mere sworn affidavit which only asserts as its foundation, a debt. Because it is ex-parte in the first instance, it is all the more essential for the court to examine the objections when they are made. This summary procedure is not, however, open when the matter involves highly complex questions of title, etc.'

In this case also I find that highly complex and highly contested questions are raised and the Small Causes Court, exercising powers under Section 53 would certainly be not a proper forum to deal with such a hotly debated question.

3. Mr. Shah then urged that both the courts below have rejected the application and the courts below have no right to do it. In his view, once the jurisdiction is exercised by the court by issuing the Distress Warrant, the only conceivable culmination would be the attachment of the property or money and its delivery to the petitioners. Mr. Shah's submission is not well-founded, because Section 60 itself presupposes prima-facie examination of the contentions. Mr. Shah, however, in this connection urged that the order of 'discharge or suspension of the warrant' or release of the property can be made only after the satisfaction of the debt in question. The Calcutta High Court has used the very term 'discharge' in the above-mentioned case in the sense of vacating the initial ex pane order. It would be so from the very nature of things. Discharge in the context of sec. 60, therefore, does not necessarily mean discharge on the debt being paid. The term 'discharge' means vacating the warrant as if it was not issued.

4. Mr. Shah's next contention was that the Small Causes Court is exercising the limited jurisdiction and the party denying assertion of the initial claimant must be driven to the fresh proceedings. This is not true. Section 60 itself envisages the enquiry, al-beit summary enquiry, into the claim put forward. If the court because of such summary examination comes to the conclusion that a serious dispute is there, it would decline to proceed further in the matter and may even retrace its steps as if the initial warrant was not issued.

5. To me it appears that under the guise of realisation of the debt, what the petitioners want is the adjudication of their contentious claim. Were it not so, there was nothing to prevent them to forthwith file a suit for rent. They have unnecessarily wasted their time of about two years, by pursuing the matter after the trial court Judge dismissed the application by his judgment dated 30-9-75. Had the suit been filed for rent and/or possession, that also would have seen its end by now. It is in this context that I say that in the summary proceedings the petitioners want the tentative adjudication in their favour. In above view of the matters, I dismiss these Revision Applications. Rule is accordingly discharged with no order as to costs.

6. The Civil Application No. 202 of 1979 is filed by the petitioners to permit them to lead additional evidence. The evidence consists of a sale deed taken by these petitioners from one of the members of the Surti family, who are admittedly held to be the original owners of the property. Such an additional evidence and that too at the stage of revision under Section 115 of the Civil Procedure Code is uncommon. When the petitioners have an alternative remedy of a suit, such a prayer at this stage is not worthy to be granted. The Civil Application is, therefore, rejected on this short ground. There will be no order as to costs of this Civil Application. Mr. Balsare, the learned advocate appearing for the respondent in each of thfee six petitions, has declared that his clients will not withdraw the deposited amounts for the period of six months from today. If the petitioners are serious about realising their dues, they can very well file the suits and get the moneys attached, or get a prohibitory order restraining the respondents from withdrawing that amounts from the court.


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