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Taraben Ramanlal Modi Vs. Jashbhai Shankerbhai BIn Talsibhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Applns. Nos. 1118, 1345, 1478, 1588 of 1978 and 412 of 1979 and Second Appeal No. 352 of
Judge
Reported inAIR1980Guj126; (1980)GLR335(GJ)
ActsGujarat Rural Debtors' Relief Act, 1976 - Sections 6(1), 6(2), 11 and 12; Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantTaraben Ramanlal Modi
RespondentJashbhai Shankerbhai BIn Talsibhai and ors.
Appellant Advocate P.B. Majmudar,; V.J. Desai,; B.K. Amin, Adv. Civil R
Respondent Advocate R.A. Mishra, Adv. Civil Revn. Appln. No. 1345 of 1978,; B.B. Naik, Adv. Civil Revn. Appln. No. 1345 o
Cases ReferredDesika Charyulu v. State of Andhra Pradesh
Excerpt:
civil - jurisdiction - sections 11 and 12 of gujarat rural debtors' relief act, 1976 - issue regarding contours of jurisdiction of civil court under section 11 read with section 12 - under section 11 civil court has jurisdiction to decide in civil suit upon plea raised by defendant - whether provisions of act apply or do not apply is within its jurisdiction to decide - it has jurisdiction to decide all incidental questions arising therefrom. - - 11 clearly shows that the jurisdiction of the civil court has been ousted in those cases 'to which the provisions of this act apply' and in an application for execution 'against a debtor'.therefore, the question which will arise in a suit before the civil courtis: 20 of that act made the award made by the collector, subject to the appeal to.....s.h. sheth, j. 1. this group of cases have been referred to the full bench for deciding the contours of jurisdiction of the civil court under section 11 of the gujarat rural debtors' relief act, 1976, read with section 12 thereof. in rana mafatlal gordhanbhai v. mahendrabhai babubhai, (1978) 19 guj lr 529, mr. justice b. k. mehta interpreted these sections and tried to resolve the conflict of jurisdiction between the civil court on one hand and the debt settlement officer on the other hand by holding that the jurisdiction of the civil court is completely ousted and it any question under the said act arises, the civil court must stay the suit and direct the party to have the question decided by debt settlement officer. after mr. justice b. k. mehta rendered that decision, the same question.....
Judgment:

S.H. Sheth, J.

1. This group of cases have been referred to the Full Bench for deciding the contours of jurisdiction of the Civil Court under Section 11 of the Gujarat Rural Debtors' Relief Act, 1976, read with Section 12 thereof. In Rana Mafatlal Gordhanbhai v. Mahendrabhai Babubhai, (1978) 19 Guj LR 529, Mr. Justice B. K. Mehta interpreted these sections and tried to resolve the conflict of jurisdiction between the Civil Court on one hand and the Debt Settlement Officer on the other hand by holding that the jurisdiction of the Civil Court is completely ousted and It any question under the said Act arises, the Civil Court must stay the suit and direct the party to have the question decided by Debt Settlement Officer. After Mr. Justice B. K. Mehta rendered that decision, the same question arose before a Division Bench of this Court in Patel Parshottam Ambavi v Patel Hansraj Valji Bhalodia, (1979) 20 Guj LR 7. The decision rendered by Mr. Justice B. K. Mehta was not Shown to the Division Bench. The Division Bench, therefore, did not have the benefit of knowing his views. Upon the consideration of several provisions of the said Act, the Division Bench decided that jurisdiction of the Civil Court was not completely ousted under S. 11 read with S. 12 and that the Civil Court had the jurisdiction to decide whether 'the provisions of this Act apply' to a particular case pending before it or whether the judgment-debtor, in execution proceedings, is a 'debtor' within the meaning of the said expression as defined in the said Act. Really speaking, there was no conflict, as there cannot be any, between the decision of Mr. Justice B. K. Mehta and the decision of the Division Bench. Since the Division Bench had taken a contrary view, the decision of the learned single Judge was, by necessary implication, overruled. In case of conflict between the decision of the single Judge and the decision of a Division Bench, it is the decision of the Division Bench alone which holds the field. Yet, to Mr. Justice R. C. Mankad, it was pointed out in some of the cases that there was conflict between the decision of Mr. Justice B. K. Mehta and the decision of the Division Bench. The learned Judge felt that there was such a conflict and, therefore, he directed the cases placed before him to be referred to a larger Bench. It is under these circumstances that the question which has been examined by a Division Bench of this Court in Patel Parshottam Ambavi's case (supra) has cropped up again and this Bench is required to re-examine it.

2. Before we proceed to analyse the relevant provisions of the Act in order to come to a correct conclusion, it is necessary to refer to the decision of Mr. Justice B. K. Mehta in Mafatlal Gordhanbhai's case (supra). The sole reason which appealed to the learned Judge was that there Would be conflict of jurisdiction between the two authorities specified in S 11 and S. 12 if it was held that the Civil Court had the jurisdiction to determine questions specified in S. 11 of the said Act. In this view, if it was held that the jurisdiction of the Civil Court to decide the questions which have been specified in S. 11 was not ousted, it would lead to 'patently absurd result'. In order, therefore, to avoid the accrual of such 'a patently absurd result' the learned Judge held that reading Ss. 11 and 12 together the jurisdiction of the Civil Court was 'obviously excluded'. The learned Judge has also considered the scheme of Ss 85 and 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948, and compared it with the scheme which emerges from Ss. 11 and 12 of the Gujarat Rural Debtors' Relief Act, 1976. On reading S. 12, the learned Judge was impressed by the fact that the decision of the Debt Settlement Officer was made final and was not open to be called in question in any Civil or Revenue Court. He therefore, held that as soon as the defendant raised the contention that he was a 'debtor' within the meaning of that expression given in Gujarat Rural Debtors' Relief Act, 1976, the Civil Court must stay its hands and cannot proceed with the suit or the execution proceedings until the question raised by the defendant or the judgment-debtor was determined by the Debt Settlement Officer.

3. The reasons which weighed with the Division Bench in Parshottam Ambavi's case (supra) were quite different, Several provisions of the Act were examined in that decision. It has been observed in that decision that in matters in respect of which Jurisdiction has been conferred upon the Debt Settlement Officer the jurisdiction of the Civil Court has been excluded because the decision of the Debt Settlement Officer subject to appellate decision, if any, has been made final. The Division Bench relied upon the decision of the Supreme Court in the case of Dhulabhai etc. v. state of Madhya Pradesh. AIR 1969 SC 78, that wherever the decision of the Special Tribunal created by a statute is made final, the jurisdiction of a plenary Court is excluded. It is too late in the day to say that ordinarily the Civil Court retains jurisdiction even where finality has been accorded by the statute to the orders and decisions of the Special Tribunals created by it. Indeed, the Special Tribunal should furnish or provide an adequate remedy to do what a Civil Court normally does in a suit. The Division Bench has also held that Sections 12 and 13 provide adequate machinery for deciding questions specified in S. 12, Therefore. it has been laid down by the Division Bench that the finality accorded to the decision under S. 12 or under S. 13 excludes the jurisdiction of the Civil Court in matters specified therein. However, the Division Bench upheld the argument that the jurisdiction of the Civil Court was excluded only in a case where a question specified in S. 12 was decided in any proceeding under the said Act. It has also been held by the Division Bench that the expression 'any proceeding under this Act' means proceedings instituted under S. 6 of the said Act and nothing else. The 'Division Bench took that view because if the Legislature had intended otherwise and thought of including in the said expression application made by defendants or judgment-debtors in suits or execution proceedings raising the defence under the said Act, the Legislature would have conferred exclusive jurisdiction upon the Debt Settlement Officer to decide questions arising both under Ss. 11 and 12 irrespective of where they originated. Therefore, after having considered the scheme of Ss. 11 and 12. it was held by the Division Bench that the bar of jurisdiction of Civil or Revenue Court comes into play only when the provisions of the said Act apply or a decretal debt is due from 'a debtor' as defined in the said Act. The Division Bench, therefore, observed that it, upon enquiry, the Civil Court recorded the finding that to a particular claim made by the plaintiff the provisions of the said Act did not apply, the Civil Court would have jurisdiction to proceed with the suit. Similarly, if the Civil Court came to the conclusion, in case of an execution proceeding, that the judgment-debtor was not 'a debtor' within the meaning of that expression as defined in the said Act, the Civil Court would have jurisdiction to proceed with the execution of the decree. The Division Bench turned down the contention that as soon as the defendant or a judgment-debtor raised in a civil suit or in an execution proceeding a plea under the said Act, the jurisdiction of the Civil Court was excluded. Whilst resolving this conflict, the Division Bench was indeed impressed by the fact that the substance of the matter lay in giving relief to certain classes of debtors. Secondly, the said Act did not give relief in absolute terms but it was conditional upon the existence of facts specified in the said Act. In view of the aforesaid observations, the Division Bench concluded that under S. 12 of the said Act the Debt Settlement Officer has exclusive jurisdiction to decide the questions specified in S. 12 in a proceeding instituted under S, 6 of the said Act. If in such Proceedings a decision has been recorded by the Debt Settlement officer, the Civil Court by virtue of Section I 1 (1) (a) (ii) is bound by it and must act upon it. In all other cases, where there is no decision of the Debt Settlement Officer operating in the field, the Civil Court irrespective of whether proceedings under S. 6 have been instituted or not has the jurisdiction to decide whether the provisions of the said Act apply to the recovery of the debt which is the subject-matter of proceedings before it. Similarly, the Civil Court has Jurisdiction to decide whether a judgment-debtor against whom execution Proceedings have been Instituted is a 'debtor, within the meaning of the said Act. If the Civil Court comes to the conclusion that the debt or decretal debt, which is the subject-matter of Proceedings before it, is governed by the provisions of S. 11 Or is Sought to be recovered from 'a debtor' within the meaning of that expression given in the said Act, the other provisions of the said Act will come into force and the defendant or the judgemnent-debtor will be entitled to ask the Civil Court to give him relief which is due to him under the provisions of the said Act. The' Division Bench lastly observed that if the Civil Court came to the conclusion that a particular debt was not governed by the provisions of the said Act or that the judgment-debtor from whom the decretal debt was sought to be recovered is not a 'debtor' within the meaning of the expression given in the said Act, the Civil Court has jurisdiction to proceed further with the case before it and to deal with and dispose it of in accordance with law. We are called upon to examine the soundness of these observations made by the Division Bench in light of the sole reason which weighed with the learned single Judge in coming to a contrary conclusion.

4.With the object of re-examining the entire scheme, we may reproduce S.11 and S. 12 of the said Act Section 11 reads as under:

' 11. (1) No Civil or Revenue Court shall entertain -

(a) any suit, appeal, or application for revision -

(i) to recover any debt to which the provisions of this Act apply;

(ii) to question the validity of any procedure or the legality of any order made by a Debt Settlement Officer or an Appellate Officer under this Act;

(b) any application to execute a decree passed by a Civil Court against a debtor.

(2) Any suit, appeal application for revision against a decree or application to execute a decree pending before any such Court on the appointed day shall abate:

Provided that if any such suit, appeal or application is pending jointly against such debtor and any other person who is not a debtor, nothing in sub-s, (2) shall affect the continuance Of such suit or application or appeal or revision application in so far as it relates to such other person (3) On the appointed day, every debtor undergoing detention in a civil prison in execution of any decree passed by a Civil Court in respect of his debt, shall be releasect.'

Section 12 reads as under:

'12. If a question arises in any proceeding under this Act as to -

(a) whether a person is a debtor;

(b) whether a debtor is a. marginal farmer small farmer, rural artisan, or rural labourer;

(c) whether the income of a rural artisan exceeds or does not exceeds Rs. 2,400 per be, Rs. 4,800 per year;

(d) whether any liability is a debt or not;

the Debt Settlement Officer shall decide such question and his decision shall be final and shall not be called; in question in any Court.'

Section 13 provides an appeal to the Appellate Authority against the decision or order of the Debt - Settlement Officer. Section 12 makes the decision of the Debt Settlement Officer final and places It beyond any challenge in Civil Court. Similarly, S. 13 makes the appellate order final. A close look at S.11 clearly shows that the jurisdiction of the Civil Court has been ousted in those cases 'to which the provisions of this Act apply' and in an application for execution 'against a debtor'. Therefore, the question which will arise in a suit before the Civil Courtis: Who decides whether the provisions of the said Act apply to a particular debt or whether a judgment-debtor against whom execution proceedings have been instituted is a 'debtor' within the meaning of the said Act? Does the Civil Court have jurisdiction to decide these two preliminary facts? Or, is a Civil Court required to stay the proceedings and refer these preliminary questions to the Debt Settlement Officer? It has been very vehemently argued on behalf of the defendants that the Civil Court should stay its hands and leave the decision on these preliminary questions to the Debt Settlement Officer. Now, the said Act makes no provision for staying a suit in such circumstances. Nor does it contain any provision which enables a Civil Court to refer such a preliminary issue to the Debt Settlement Officer. In that behalf, the provisions which the predecessor Act contained may be contrasted with the provisions which the said Act contains. The Gujarat Rural Debtors (Temporary Relief) Act, 1976, preceded the present Act, Sub-section (2) of S. 2 of the earlier Act provided as follows:

'if a question arises whether a person is a, rural artisan, a rural labourer or a small farmer, the question shall be decided by the Civil Court as a preliminary issue and the decision of such Court on such question shall be final and conclusive and shall not be called in any appeal or revision.'

Section 3 of the earlier Act, inter alia, provided:

'3.(1) Notwithstanding anything contained in any other law for the time being in force or in any contract, custom or usage to the contrary, during the specified period,-

(a) no Civil Court shall entertain any suit, application or proceeding against a debtor in respect of any debt:

(b) any suit, application or Proceeding in relation to recovery of a debt pending before a Civil Court 'against a debtor shall be stayed:

(c) no decree of a Civil Court in relation to the recovery of a debt passed before the appointed day against a debtor shall be executed;

x x x x x Indeed, it was a temporary Act which remained in force until 31st Oct., 1977. That was what was provided in subsec (3), of S. 1,

5. Now, S. 12 of the present Act accords finality to the decision of the Debt Settlement Officer and S. 13 accords finality to the appellate decision of the appellate authority. Therefore, the jurisdiction of the Civil Court to examine the validity of their decision has been barred. Section 11 (1) (b) requires the question whether a Judgment-debtor is a 'debtor' within the meaning of the said Act to be decided as a preliminary issue. Section 12 (a) also requires the Debt Settlement Officer to decide whether a person is a 'debtor'. The decision of the Debt Settlement Officer has been made final. in order to resolve the apparent conflict arising out of overlapping area, certain decimns cited before us may be referred to.

6. The first decision is in Koli Sona Deva (deceased by his heirs Koli Hasur Sona) v. Shah Somalal Mathuradas, (1967) 8 Guj LR 297. It was a case under the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (Bombay.-Act No. XXXTX of 1954). The principle which has been laid down by Mr. Justice N. G. Shelat, sitting singly, Is that when a question whether any person Is a permanent holder arises, it has to be decided by the State Government, or by its Officer as contemplated In proviso to S. 2 (4) of that Act.. The learned Judge found that there was nothing in that Act which expressly ousted the jurisdiction of the Civil Court. However, he was of the opinion that the method contemplated by Section 85-A of the Bombay Tenancy and Agricultural Lands Act. 1948, could be followed. In other words, reference by a Civil Court of an issue to the authority specified in the appropriate Act may be made. The principle laid down by the learned Judge is not applicable to the instant case because S. 2 (4) not 0nly conferred jurisdiction in respect of issues specified therein upon the State Government or the Officer authorized by the State Government but made his or Its decision final. Similarly, S. 20 of that Act made the award made by the Collector, subject to the appeal to the Gujarat Revenue Tribunal, final and conclusive and placed it beyond any challenge on any Civil Court,

The provisions of that Act clearly show that whereas the decision of the authorities specified in Section 2 (4) was made final, no Provision corresponding to & 11 in the Gujarat Rurak Debtors, Relief Act, 1976, was contained in the said Act. The controversy which has arisen before us Owes its origin to the juxtaposition of partial ouster of the jurisdiction of the Civil Court by S 11 and the finality accorded to the decision of the DWA Settlement Officer by S. 12.

7. The next decision to which our attention has been invited is in Shivappa Satawappa Ashtekar v. Gajanan Chintaman Deahpande, (1953) 55 Bom LR 843. It is a judgment rendered by Mr Justice Shah (as he then was). After having considered the scheme of S. 70 (b), S. 85 and. & 2(8) and Section 2(18) of the Bombay Tenancy and Agricultural Lands Act, IM, it has been observed by the learned Judge that the decision of the question whether a person is or is not a tenant within the meaning of the Bombay Tenancy and Agricultural Lands Act, 1W. Involves the determination of three questions: (i) whether he is an agriculturist, (ii) whether he holds land on lease, and (iii) whether the land is agricultural land. The Jurisdiction to decide all these three questions relating to the determination of the status of a person as a tenant must be deemed, according to the learned Judge, exclusively to be vested in the Mamlatdar under that Act. Therefore, the learned Judge held that the Civil Court had no jurisdiction to decide them.. This principle was laid down in the context of S. 85 of that Act which completely ousted the Jurisdiction of the Civil Court in matters arising under that Act and vested it in the Mamlatdar under S. ' of - that Act to decide those questions.

8. In the instant came, S. 11 does not completely oust the jurisdiction of the Civil Court but ousts it only Partially it is necessary in this context to refer to the decision of the Supreme Court in Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78 In that case, the Supreme Court w considering the applicability of S. 9 of the Civil P. C. in the context of S. 17 of the Madhya Bharat Sales Tax Act (30 of 1950). The following principles have been laid down by the Supreme Court in that case :

(1) Where the statute gives finality to the orders of the Special Tribunals the Civil Courts' Jurisdiction must be held to be excluded if there is an adequate remedy to do what the Civil Court Would normally do in a suit Such Provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the Jurisdiction oi the Court, an examination of the scheme of a particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies noin ally associated with actions In Civil Courts are prescribed by the said statute or not.

(3) Challenge to the provisions of a particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged. a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit

(5) Where a particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are -for the decision of the authorities and a Civil suit does not lie if the orders of the authorities are declared to be final or there Is an express prohibition in a particular Act. In either case the scheme of a particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

9. In order to decide which one or more of the principles laid down by the Supreme Court in Dhulabhai's case (supra) apply to this case, it is necessary to reproduce S. 17 of the Madhya Bharat Act. It-provided as under:

'Save as is provided in S. 17, no assessment made and no order passed under this Act or the Rules made thereunder by the assessing authority, appellate authority or the Commissioner shall be called into question in any Court, and save as is provided in Sections 11 and 12 no appeal or application for revision shall lie against any such assessment or order.'

It is clear, therefore, that Section 17 of the Madhya Bharat Sales Tax Act, 1950, had completely ousted the jurisdiction of the Civil Court. In the present case, Section 11 ousts the Jurisdiction of the Civil Court only partially. In our opinion, seventh principle laid down by the Supreme Court has a great bearing on the question with which we are concerned. We must bear in mind as laid down by the Supreme Court that exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions set down in the other six principles apply. This principle applies to a case where the jurisdiction of/ the Civil Court has not been expresk ousted or where there is no provision for ousting the jurisdiction of the Civil Court but the orders made by the special tribunals or authorities have been accorded finality. However, that principle applies with much greater force to the present cage in which jurisdiction of the Civil Court has been only partially ousted.

10. The second principle laid down by the Supreme Court has no application to the instant case because in Section 11 there is no complete or total/ bar of jurisdiction of the Civil Court. It cannot be gainsaid that Section 11 has ousted the jurisdiction of the Civil Court only partially. Therefore, though it is necessary to bear in mind the principles laid down by the Supreme Court, we have got to apply those principles to the present case with great circumspection because the State Legislature has devised in Sections 11 and 12 of the said Act a novel scheme which is not found in other statutes with which the case law cited before us deals.

11. What we have stated above is borne out by the language of Section 11 (1) (a) which ousts the jurisdiction of the Civil Court only if the provisions of the said Act apply. Now, whether the provisions of the said Act apply to a particular case before the Civil Court or not is not a question within the jurisdiction of the Debt Settlement Officer under Section 12. Whether the provisions of the said Act apply or not is a question which falls outside the said Act and does not arise under the Act. In our opinion, therefore, the Civil Court has jurisdiction to decide whether the provisions of the said Act apply.

12. The first reason, therefore, which weighs with us in coming to the conclusion which we are recording shortly is that the question whether the provisions of the said Act apply or not is not within the jurisdiction of the Debt Settlement Officer. The second reason which weighs with us is that that question falls outside the Act and does not arise under the Act.

13. It has been argued that when the Civil Court decides whether the provisions of the said Act apply or whether a judgment-debtor is a 'debtor' within the meaning of the said Act, it, in substance and in reality, decides what is required to be decided by the Debt Settlement Officer under Section 12 to whose decision finality has been accorded. That, in our opinion, is a very narrow approach to the question. The concept which clauses (a) and (b) of sub-see. (1) of Section 11 envisage is much larger. When the Civil Court decides whether the provisions of the said Act apply to a particular case or not, firstly the Court May have to decide whether the provisions relating to the exemption of debts in See. 27 are attracted to a case before it. Therefore, it is erroneous to say that when the Civil Court decides whether the provisions of the said Act apply to a case before it, it only decides those questions which have been placed within the jurisdiction of the Debt Settlement Officer under S. 12. The Civil Court whilst answering the question whether the provisions of the add Act apply to a case before it not only decides questions arising under Section 27 but has also got to decide whether, irrespective of the provisions of Sec.27, the provisions of the said Act apply to a case before it. If, in the context of Section 27, the Civil Court can decide whether the provisions of the said Act apply or not, there is no logical reason which can persuade us to come to the conclusion that in other cases it cannot decide whether the provisions of the said Act apply to a case before, it. If it was the intention of the Legislature to confine the jurisdiction of the Civil Court to determine questions arising under Section 27, nothing would have been easier than to state it expre6sly in Section 11 (1) (a). The very fact that the Legislature has not provided that the consideration of the question as to the applicability of the provisions of the said Act shall be confined to matters specified in Section 27 clearly shows that the Legislature wanted the Civil Court in a civil suit to decide, indeed as a preliminary question, whether the provisions of the said Act apply.

14. Now, let us look at the problem from another angle. If the Civil Court decides that the provisions of the said Act apply, it cannot proceed with the suit at all and must declare the suit to have abated under sub-section (2) of Section 11 irrespective of what the Debt Settlement Officer later on decides. Similarly, if the Civil Court decides in execution proceedings that a Judgment-debtor is a 'debtor' within the meaning of the said Act, it must declare the execution application to have abated irrespective of what the Debt Settlement Officer 'later on decides. Once the Civil Court comes to this conclusion, the Civil Court has no alternative but to dismiss the suit or the execution application as having abated. Therefore, it is for the purpose of deciding whether a suit or an execution application has abated, that the Civil Court has jurisdiction to decide upon the existence or otherwise of the preliminary facts specified in clauses (a) and (b) of sub-section (1) of Section 11. If the Civil Court comes to the conclusion that the provisions of the said Act do not apply or that the jud1pnentdebtor is not a 'debtor' with in the meaning of the said Act, the Civil Court can certainly proceed with the suit or the execution application.

15. The next reason which weighs with -us in recording the conclusion which we are doing is that if the Civil Court has the jurisdiction to decide whether the provisions of the said Act apply or whether the judgment-debtor Is a 'debtor' within the meaning of the said Act as preliminary questions in a suit or execution proceedings, the Civil Court must necessarily have jurisdiction to decide all incidental questions interlinked therewith and arising therefrom in order to come to a final and effective conclusion in regard to the existence or otherwise of those two preliminary facts It is not necessary to repeat that the decision which the Civil Court records is only for the purpose of deciding whether the suit or an executlon application abates or continues. The purpose for which the Debt Settlement Officer decides whether a person is a 'debtor' or not is different from the purpose for which the Civil Court decides it. In other words the Debt Settlement Officer decides it for the purpose of giving a relief to the 'debtor' under the Act but the Civil Court decides it for finding out whether the suit or an execution application has abated or whether it continues. It is difficult for as to conceive that, in order to find out whether a suit or an application for execution has abated or continues, the Civil Court must await the decision of some other forum. The decision of some other forum can be awaited only if the Legislature has so provided expressly. Section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948, makes such a provision. Section 85 ousts the jurisdiction of the Civil Court completely In matters arising under that Act. Section 85-A provides that if in a civil suit a matter or a question arises under the Act, the Civil Court shall refer it to the Mamlatdar upon whom jurisdiction has been conferred to decide questions arising under that Act. The principle laid down under Sections 85 and 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948, cannot be applied to a case under the present Act because the scheme of Sections 85 and 85-A of the Bombay Tenancy and Agricultural Lands Act is very, much different from the scheme of Section 11 and 12. The principal difference lies fact in the fact that whereas Sec 85 of the Bombay Tenancy and Agricultural Lands Acts outs the jurisdiction of the Civil Court completely, Section 11 of the present Act does not oust the jurisdiction f the Civil Court completely. It is on account of that reason that legislature does not appear to have made any provision similar to the provision in Section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948.

16. It cannot be gainsaid that the Civil Court. under the terms of Section 11 has jurisdiction to decide two negative facts: (i) whether the provisions of the said Act do not apply to the case before it and (ii) whether the judgment-debtor is not a 'debtor. In respect of these two negative questions, the jurisdiction of the Civil Court has not been barred by See. 12 or, putting it positively, the jurisdiction in respect of them has not been conferred upon the Debt Settlement Officer. It is therefore, very necessary for the Civil Court to decide these two question in order to decide whether it can proceed with the suit or an execution application.

17. We are now dealing with three situations which arise from a comprehensive examination of certain provisions of the said Act. Section 6 (1) provides that every debtor shall, within such period as may be prescribed, furnish to the local authority within whose jurisdiction he ordinarily resides, a true statement in writing in prescribed form containing the particulars specified in the section in respect of every debt due by him on the appointed day to his creditors. Rule 4 of the Gujarat Rural Debtors' Relief Rules, 1976, provides that the statement under sub-section (1) of Section 6 shall be furnished before 1st December, 1976. The use of the expression 'shall' in sub-see. (1) of Section 6 casts upon a 'debtor' a mandatory obligation to apply within the prescribed time to the Debt Settlement Officer for liquidation or reduction of his debts. Sub-see. (2) of Section 6 does not appear to cast such a mandatory obligation upon a creditor to have his debts adjudicated on by the Debt Settlement Officer. It, inter alia, provides that- any of the creditors of a debtor may also furnish within the period prescribed under sub-section (1), to the local authority within whose jurisdiction the debtor ordinarily resides a true statement in respect of the debt or debts due to him by the debtor. Whereas sub-section (1) uses the expression 'shall' in respect of a debtor, sub-section (2) uses the expresion ''may' in respect of a 1creditor'. We have got to construe these two expressions and assign to them their respective roles. When the Legislature has used 'shall' and 'may' In the same section, they 'cannot be loosely construed so as to carry the same meaning. What appears to us from the scheme of sub-sections (1) and (2) of Section 6 is that a 'debtor' is under a mandatory obligation to apply to the Debt Settlement Officer within the prescribed time for the liquidation or reduction of his debts. What is the consequence it he does not do so? In our opinion, if he does not do so, his right to apply is barred by time. He, therefore, cannot apply later. If he cannot apply later, in our opinion he cannot raise a plea in a suit subsequently filed that he is a 'debtor' within the meaning of the said Act and that the suit has abated under subsection (2) of See. 11.

18. It is not necessary to repeat that the only relief which a Civil Court can grant to a defendant who is a 'debtor' within the meaning of the said Act is to declare that the suit or proceeding has abated. We think -that If a debtor has failed to apply within time to the Debt Settlement Officer for liquidation or reduction of his debts, he cannot raise a plea in a suit subsequently filed against him by his creditor because none can take advantage of his own default. So far as the creditor is concerned, it appears that sub-section (2) of See. 6 merely contains an enabling provision and casts no obligation upon him. If he applies, the debt will be adjudicated upon in terms of the provisions of the said Act. If he does not apply and if a debtor has also not applied, it will be open to him to file a civil suit in the Civil Court. Rule 5 in Gujarat Rural Debtors' Relief Rules, 1976, provides that if a creditor wants to apply under sub-section (2) of See. 6 he shall do so before 1st December, 1976.

19. On consideration of the scheme of sub-sees. (1) and (2) of See. 6 read with Rule 4 and Secs. 11 and 12, it appears to us that three situations arise. The first situation can be described thus. Neither the debtor nor the creditor has instituted within time proceedings under See. 6 of the said Act. In such a case, it is open to the creditor to file a civil suit against his debtor and, in such a civil suit, the debtor or the defendant cannot be Permitted to raise any defence under the provisions of the said Act because his right to apply to Debt Settlement Officer expired or was extinguished on 1st December 1976. Having failed to apply under sub-s. (1) of S. 6 and having failed to discharge the mandatory obligation cast upon him, he cannot turn round and raise a contention merely to defeat the creditoes claim who has been placed under no obligation by sub-s. (2) of S. 6 -to make such an application,

20. It is necessary In this behalf to refer to the scheme of the Bombay Agricultural Debtors Relief Act, 1947. It cast upon a creditor the mandatory obligation to make an application for adjustment of his debts (vide S. 4) and providid that, if no such application was made either by a creditor or a debtor, then the debt due from the debtor would be extinguished. It is because the debt due from a debtor was extinguished in cage no application for, adjustment of debts was made that a debtor could raise defence in a suit subsequently filed by his creditor that his debt was extinguished. In the instant case, it is not open to the defendant to raise such a defence after' having failed to discharge his 'statutory obligation of making an application under S. 6. Therefore, the Civil Court has jurisdiction to proceed with such a suit.

21. The second situation which may arise can be described thus. Proceedings under S. 6 have been instituted and are pending. The creditor has filed a civil suit against a debtor. When two proceedings are simultaneously pending against a debtor - one before the Civil Court and another before the Debt Settlement Officer what does the Civil Court do 9 In our opinion, the Civil Court can decide whether the defendant is a 'debtor' or nut within the meaning of the Act in order to decide whether the suit has abated or can be continued. It Is for the purpose of giving the debtor a higher relief in the shape of abatement of suit that the Civil Court decides whether the condition subject to which its Jurisdiction has been ousted exists or not. If the Civil Court decides that the defendant is a 'debtor' within the meaning of the said Act, the suit abates and the only remedy for the creditor is to have his 'debt' adjusted by Debt Settlement Officer.

22. The third situation which is likely to arise can be described in the following terms. Debt Adjustment proceedings institute under S. 6, and the suit filed in the Civil Court against a defendant are pending. The Civil Court, upon inquiry, holds that the defendant is not 'a debtor' within the meaning of the said Act. In our opinion, it has the jurisdiction to decide this preliminary question in order to find out whether it can proceed with the suit or not.

23. That the Civil Court has Jurisdiction to decide these two preliminary facts, irrespective of what has been provided by S. 12, is made clear, beyond any doubt by sub-s. (2) and sub sec (3) of S. 11. Sub-sk. (3) of S. 11 provides as follows:

'On the appointed day, every debtor undergoing detention In a Civil prison in execution of any decree passed by a Civil Court in respect of his debt, shall be released.'

If a judgment-debtor has been detained in a civil prison in execution of a decree and if he raises the contention that he is a 'debtor' within the meaning of the said Act, can the Civil Court order his release, without deciding on merits, whether he is a 'debtor' within the meaning of the said Act If the Civil Court is required to release Judgment-debtors only on their raising such a plea, judgment-debtors, who are not 'debtors' within the meaning of the said Act, shall run away with impunity and cause damage to the society, not contemplated by the said Act. Or, will the Civil Court direct the judgmentdebtor to have his status under the said Act determined by the Debt Settlement Officer? Or, shall the Civil Court refer to the Debt Settlement Officer for his decision the question relating to the status of the judgment-debtor under the Act If the Civil Court, in such a case. is required to await the decision of the Debt Settlement Officer by the time the Debt Settlement Officer decides it, the term of detention of the judgment-debtor in civil prison will have expired. It is difficult for us to visualize, therefore, that sub-s. (3) of S. 11 contemplates anything other than that the Civil Court has the jurisdiction to decide whether a judgment-debtor is 'a debtor' within the meaning of the said Act.

24. Proviso to sub-s. (2) of S. 11 lays down as follows:

'Provided that if any such suit, appeal or application is pending Jointly against such debtor and any other person who is not a debtor, nothing in sub-s. (2) shall affect the continuance of such suit or application or appeal or revision application in so far as it relates to such other person.'

Unless the Civil Court decides whether one of the defendants or one of the judgment-debtors is a 'debtor', how is the Civil Court going to proceed with the suit against another defendant or Judgment-debtor who is not a 'debtor' within the meaning of the Act It is clear, therefore, from the proviso to sub-section (2) of Section 11 and sub-section (3) of S. 11 that the Civil Court has the jurisdiction to decide the two questions specified in clause (a) and clause (b) of subsection (1) of S. 11.

25. We are now trying to examine the arguments raised before us by imagining a reverse situation. Supposing the Civil Court decides that the provisions of the Act apply to a case before it or thatt a judgment-debtor is a 'debtor', it will declare the suit or an execution application to have abated. Obviously, therefore, the Civil Court cannot give any relief to the creditor. Thereafter, if the Debt Settlement Officer decides between the same parties in proceedings instituted under S. 6 that the provisions of the Act do not apply or that a judgmentdebtor is not a 'debtor', he will have so alternative but to dismiss the proceedings instituted under S. 6. In such a situation, where will the creditor go? Can the creditor go back to the Civil Court and revive his suit which has been declared to have abated? There is no provision In the Act to revive a suit which has abated under the aforesaid circumstances.

26. On consideration of all these aspects, it appears to us that the jurisdiction of the Civil Court has been conditionally ousted by See. 11. In other words, it is ousted only if the Provisions of the said Act apply to a case before it or if a judgment-debtor is a 'debtor'. In a case of conditional ouster of its jurisdiction, the Civil Court has, in our opinion, jurisdiction to decide whether the condition is fulflled and whether its jurisdiction has been ousted. That is the inherent power of every Civil Court. For that purpose, the Civil Court cannot look at S. 12 and await the decision of the Debt Settlement Officer. It has got to look at both Ss. 11 and 12. Therefore, when a comprehensive look is cast at Ss.11 and 12, no doubt is left in our minds that the Civil Court has under S. 11 jurisdiction to decide whether the condition which outs its jurisdiction exists,it has nojurisdiction. If the condition exists, it has no jurisdiction.If the condition does not exist it has Jurisdiction to proceed with the suit or execution proceedings pendinng before it.

27. On behalf of the defendants, reliance has been placed upon subsecs. (4) and (5) of S. 4 of the said Act. Sub-section (4) empowers the Debt Settlement Officer to make an order granting such relief to the debtor an he may appear to be entitled to or make an order rejecting the application of the debtor. This provision does not help us in construing the provisions of S. 11 because whereas the Debt Settlement Officer has jurisdiction under sub-s. (4) to reject an application or grant such relief to the debtor as he is entitled to, the Civil Court has Jurisdiction to decide whether a suit or an application for execution has abated or whether it continues. Sub-section (5) of S. 4 provides that the order of the Debt Settlement Officer shall be executed as if it is a decree or an order of *he Court. That provision also does not suggest that the Civil Court has no Jurisdiction to decide upon the existence or otherwise of two conditions which are conditions precedent to the ouster of its jurisdiction.

28. Our attention- has been invited to the decision of the Supreme Court in Desika Charyulu v. State of Andhra Pradesh, AIR 1964 SC 807. It was a case under Madras Estate (Abolition and Conversion into Ryotwari) Act, 1948. The question which arose before the Supreme Court related to the exclusive jurisdiction of the Settlement Officer and of the Tribunal to decide the question whether an inam village was an 'inam estate'. The Supreme Court held that the Settlement Officer and the Tribunal on appeal had exclusive jurisdiction to decide such a question and that the Civil Court had no jurisdiction to determine it or retry it. The Supreme Court took that view because Section 9 (4) (c) of that Madras Act expressly barred the jurisdiction of the Civil Court from questioning the correctness of the appellate decision. It was not a case in which the jurisdiction of the Civil Court was conditionally ousted.

29. The next decision to which our attention has been invited is in Patel Gordhanbhai Vaghji bhai v. Vaghri Ranchhodbhai Samtabhai (1966) 7 Guj LR 311 (FB). It was a case under the Bombay Tenancy and Agricultural Lands A ' ct ' 1948. It is not necessary to make a detailed reference to that decision because the principle which has been laid down in that decision restsupon the construction of the scheme of Ss. 85 and 85-A of that Act, which, as stated above, is much different from the scheme of S. 11 and S. 12 of the said Act.

30. Our attention has also been invited to the decision of, Mr. Justice Ahmadi in Civil Revision Application No. 442 of 1978, decided by him on 28th Sept., 1978. That decision does not lay down any new principle. The learned Judge has analysed the decision of Mr. Justice B. K. Mehta in Mafatlal Gordhanbhai's case (supra) and the decision of the Division Bench in Parshottam Ambavi's , case (supra) on the question which has arisen before him. It is on account of these two decisions that the present controversy has arisen before us.

31. In order to understand the scheme which Ss. 11 and 12 disclose, we may usefully refer to the corresponding Maharashtra Act - Maharashtra Debt Relief Act, 1975. Sections 11 and 12 corresponding to Sections 11 and 12 of the Act, with which we are concerned disclose an altogether different scheme. Section 11 of the Maharashtra Act provides as under:

'(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Chapter required to be settled, decided or dealt with by the Authorised Officer.

(2) No order of the State Government or of any officer or authority iftade under this Chapter shall be questioned in any Court.'

Section 12 of the Maharashtra Act provides as under:

'(1) If a suit Instituted In any Civil Court involves any issues which are required to be settled, decided or dealt with, by the Authorised Officer under this Act, the Civil Court shall stay the suit, and refer such issues to the Authorised Officer for determination.

(2) On receipt of such. reference from the Civil Court, the Authorised Officer shall deal with and decide such issues in accordance with the provisions of this Chapter and shall comunicate his decision to the Civil Court, and such Court shall thereupon dispose of the suit in Accordance with the procedure applicable thereto.'

32. 1he scheme which Is incorporated in Ss. 11 and 12 of Maharashtra Act is similar to the scheme of Sections 85 and 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 In other words, the Maharashtra Act, like the Tenancy Act completely ousts the jurisdiction of the Civil Court in matters arising under the Act and provides that if a question arises under the Act, it shall refer the issue to the Authonsied Officer and await his decision. The scheme contained In Ss. 11 and 12 of the Gujarat Rural Debtors Relief Act, 1976, is altogether different An argument was raised that So. 11 and 12 of the Act with which we are concerned should be construed in light of Ss. 11 and 12 of the Maharashtra Act. It cannot be done for very obvious reason that the language used by two different Legislatures in two different enactments is fundamentally and basically different. We have, therefore, got to construe Ss. 11 and 12 in the light of the language which they have used. We are, therefore, unable to subscribe to the view that if a question as to the applicability of the provisions of the said Act arises before a Civil Court or if a question whether the judgment-debtor is a 'debtor' or not within the meaning of the said Act arises before it, the Civil Court must either refer the question under S. 12 of the Act to the Debt Settlement Officer or direct the parties to obtain the decision of the Debt Settlement Officer.

33. Before we close this case, we must turn to the word 'finality' used in Section 12. The decision of the Debt Settlement Officer under S. 12 has been accorded finality by the Legislature, indeed subject to the decision in appeal by the Appellate Officer. However, if an appellate officer has recorded a decision in appeal, it has also been accorded finality under S.13 the finality accorded to the decision of the debt settlement officer or to appellant officer, in our opinion ,means this much and no more. If the Debt Settlement Officer or the Appellate Officer has decided the question, the Civil Court must act upon it and it cannot be challenged in a civil Court. If the Debt Settlement Officer has not decided it and if the Civil Court has decided it, the decision of the Civil Court being within its Jurisdiction is binding upon the Debt Settlement Officer and the Debt Settlement Officer or the Appellate Officer, as the case may be, has no jurisdiction to re-examine the question decided by the Civil Court and to record a different finding thereon in derogation of the decision of the Civil Court. The Debt Settlement Officer is bound to accept It because the Civil Court has within the limits of its jurisdiction decided it. In this context. One more argument has been raised. What happens if the Civil Court and the Debt Settlement Officer both decide a particular question on the same day ?Such a situation is very unlikely to occur. If both the decisions agree,there will be no difficulty. If both the decisions do not agree, there Is likely to be a conflict. Occurrence of such a conflict is a very rare thing. However, If, In a conceivable case, such a difficulty arises, it Is always open to a party to move the higher Court to exercise its power under S. 151 of the Civil P. C. to make an appropriate order to avoid such a very rare conflict. It is abhorrent for us to think that the Civil Court cannot decide upon the existence or otherwise of the conditions which oust its jurisdiction and should be required, in absence of any express provision in that behalf, to have its own jurisdiction decided by an executive officers who perform ~ quasi-judicial functions between two private individuals under the said Act. We cannot deny to the Civil Court its inherent jurisdiction to decide the question relating to its own jurisdiction, particularly Am a case where its jurisdiction has been conditionally or partially ousted.

34. For the reasons stated above, we are of, the opinion that under S. 11 of the Gujarat Rural Debtors' Relief Act, 1976, the Civil Court has jurisdiction to decide in a civil suit, upon a plea raised by the defendant, whether the provisions of the said Act apply or do not apply in order to decide that question which in our opinion, is within its jurisdiction, it can decide all incidentel questions arising there from Similarly, the Civil Court has jurisdiction to decide whether a judgmentdebtor is a 'debtor' and, in order to decide that question effectively, it has the jurisdiction to decide all incidental questions arising therefrom. If the provisions of the Act apply to a case before a Civil Court or if the judgmentdebtor is found to be a 'debtor', the suit or the execution proceedings must abate. If they do not apply, or if a judgment-debtor is found not 'a debtor, the Civil Court has jurisdiction to proceed further and in accordance with law; We may make it clear that under ;S. 11 the Civil Court has no jurisdicition to decide anything more.

35. The result of the findings which we have recorded is as follows:-

(1) Civil Revision Application No. 1478 of 1978 which has been filed by the original plaintiff is allowed and the impugned order staying the suit is set aside. The Civil Court shall proiceed with the suit in accordance with this decision. Rule is made absolute with no order as to costs.

(2) Civil Revision Application No. 1345 of 1978 which has been filed by the decree-holder is allowed and the impugned order staying the execution proceedings is set aside. The execution proceedings shall now proceed further in accordance with this decision. Rule is made absolute with no, order as to costs.

(3) Civil Revision Application No.1118 of 1978 which has been filed by the decree-holder is allowed and the impugned order staying the execution proceedings is set aside. The Darkhast shall now proceed further in accordance with this decision, Rule is made absolute with no order as to costs.

(4) Civil Revision Application NO. 1588 of 1978 which has been filed by the defendant is dismissed. The Order made by the Court below is confirmed. Rule is discharged with no order as to costs.

(5) Civil Revision Application No. 412 of 1979 which has been filed by the judgment-debtor is dismissed and the order made by the Court below is confirmed. Rule is diacharged with no order as to costs.

(6) So far as Second Appeal No. 352 of 1979 is concerned, it shall now be sent back to the learned single Judge for finally deciding it on merits and in light of this decision.

36. Orders accordingly.


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