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Pyarelal and ors. Vs. Rani Raman Kumari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Nos. 209 and 382 of 1966 and Civil Revn. Petn. No. 353 of 1966
Judge
Reported inAIR1970Raj256; 1969()WLN403
ActsDebt Law; Rajasthan Relief of Agricultural Indebtedness Act, 1957 - Sections 2, 5, 5(1), 5(4), 6, 6(6), 6A and 7; Code of Civil Procedure (CPC) , 1908 - Order 22, Rule 9
AppellantPyarelal and ors.
RespondentRani Raman Kumari and ors.
Appellant Advocate N.M. Kasliwal, Adv. and; Hastimal Parakh, Adv. in Civil Revn. No. 382 of 1966
Respondent Advocate Lekhraj Mehta and; S.K. Mal, Advs. in Civil Revn. No. 353/1966
Cases ReferredKaransee v. Bastichand
Excerpt:
.....of the act if the order of admission of the application under section 6 has been set aside by the debt relief court itself or by any other court competent to set aside that order. - - --(1) whenever a suit or an insolvency petition against a debtor shall have been brought or made and pending in a competent court and such debtor or the person who brought or made such suit or petition applies to such court in this behalf, the court shall- (i) abate such suit or petition if it is satisfied on affidavit or otherwise that an application to the debt relief court under section 6 or section 6a has been made and admitted and is pending, or (ii) stay proceedings in such suit or application if it is satisfied as aforesaid that the defendant or the opposite party, as the case may be, is a debtor..........such suit or petition if it is satisfied on affidavit or otherwise that an application to the debt relief court under section 6 or section 6a has been made and admitted and is pending, or (ii) stay proceedings in such suit or application if it is satisfied as aforesaid that the defendant or the opposite party, as the case may be, is a debtor within the meaning of this act: provided that, in the case of an application for stay under clause (ii), the court shall fix a period, not exceeding ninety days, within which the application to the debt relief court shall be made. (2) if any such suit or petition as is referred to in sub-section (1) shall have been pending- (i) against a member of a scheduled caste or a scheduled tribe, at the date of the applicability of this act to such.....
Judgment:

Bhandari, C.J.

1. These three references have been made by Jagat Narayan, J., in revision petitions filed in this Court and a common question of law regarding interpretation of Sections 5 and 6 of the Rajas-than Relief of Agricultural Indebtedness Act, 1957 (Act No. 28 of 1957) (hereinafter called the Act) has been raised in them. These Sections run as follows:--

'5. Abatement or stay of suit or insolvency petition.-- (1) Whenever a suit or an insolvency petition against a debtor shall have been brought or made and pending in a competent Court and such debtor or the person who brought or made such suit or petition applies to such Court in this behalf, the Court shall-

(i) abate such suit or petition if it is satisfied on affidavit or otherwise that an application to the Debt Relief Court under Section 6 or Section 6A has been made and admitted and is pending, or

(ii) stay proceedings in such suit or application if it is satisfied as aforesaid that the defendant or the opposite party, as the case may be, is a debtor within the meaning of this Act:

Provided that, in the case of an application for stay under Clause (ii), the Court shall fix a period, not exceeding ninety days, within which the application to the Debt Relief Court shall be made.

(2) If any such suit or petition as is referred to in Sub-section (1) shall have been pending-

(i) against a member of a Scheduled Caste or a Scheduled Tribe, at the date of the applicability of this Act to such castes or tribes appointed under Section 2-A, and

(ii) in other cases at the date of the commencement of this Act, an application for stay of proceeding under Sub-section (1) may be made within six months of the date of such applicability or such commencement, as the case may be.

6. Application to Debt Relief Court:--(1) Any debtor, who is liable for debts individually or jointly with another person, may file an application before the Debt Relief Court having jurisdiction in the area in which he ordinarily resides or earns his livelihood praying for the determination of his debts.

(2) Such an application, praying for the determination of the debts outstanding against a debtor, may also be filed by his creditoror his surety, whether such debtor is liable for such debts individually or jointly with another person.

(3) Every application under Sub-section (1) or Sub-section (2) shall be signed and verified in accordance with Order VI, Rule 15, of the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908) and shall contain the following particulars, namely:--

(a) a statement that the debtor is an agriculturist or a member of a Scheduled Caste or a Scheduled Tribe,

(b) the place where he normally resides,

(c) a statement of all debts outstanding against him, including those referred to in Section 4, as nearly as may be ascertainable and the names and addresses of his creditors,

(d) a statement of all his property, including claims due to him, together with a specification of the value of his property, and the place or places at which any such property is to be found, and

(e) such other particulars as may be prescribed.

(4) In cases covered by Clause (ii) of subsection (1.) of Section 5 an application under Sub-section (1) or Sub-section (2) of this Section, as the case may be, shall be filed within the period fixed under the proviso to subsection (1) of Section 5.

(5) All applications pending before Debt Relief Court at the commencement of the Rajasthan Relief of Agricultural Indebtedness (Amendment) Ordinance, 1961 (Ordinance No, 7 of 1961), shall continue and be deemed to have been presented under this section.

(6) The suit or insolvency petition in which proceedings may have been stayed under Clause (ii) of Sub-section (1) of Section 5 shall abate-

(i) if no such application as is referred to in Sub-section (4) is filed, or

(ii) if such an application is admitted and notice of such admission has been received by the court concerned.

(7) If such an application is rejected the debtor shall not he entitled to file another application in any Debt Relief Court and any proceedings stayed under Sub-section (1) of Section 5 shall be resumed.'

2. In Civil Revision No. 209/66 Pyarelal had filed a suit against Smt. Rani Raman Kumari for the recovery of Rs. 1066,76 in the court of Munsif East, Jaipur City. The defendant filed an application in that suit contending that she was an agriculturist and was a debtor within the meaning of Section 2 (cc) of the Act and that she would file an application under Section 6 of the Act in the competent Debt Relief Court and that till then the suit be stayed. The court accepted that she was a debtor and stayedthe proceedings in the suit. Shrimati Rani Raman Kumari then filed an application under Section 6 (1) of the Act before the Munsif Dausa praying for determination of her debts. On 2nd August, 1964 counsel for the plaintiff admitted in the court of Munsif, East Jaipur City that the defendant had filed an application under Section 6 (1) of the Act and on this admission the court passed the order that in view of the admission, the suit be stayed and added that the suit be struck off from its number and be consigned to the record room. There is no express order of the abatement of the suit. On 23rd December, 1964 the Debt Relief Court decided that Rani Raman Kumari was not a debtor within the meaning of the Act and her application under Section 6 (1) of the Act was not maintainable. Thereupon on 24th March, 1965 the plaintiff filed an application in the court of Munsif, East Jaipur City, that the suit filed by him be restored to its original number and that further proceedings be taken thereon. The learned Munsif by his order dated 5th May, 1965 relying on the authority of this Court in Karansee v. Bastichand, 3964 Raj LW 442 dismissed the application on the ground that the suit could not be restored as it had abated. The plaintiff filed a revision application in this Court which came for hearing before Jagat Narayan J. The learned Judge has taken the view that Karansee's case, 3964 Raj LW 442 required to be reconsidered. He formulated the following question and referred the case to a larger bench:--

'Whether the Civil Court can revive proceedings abated under Sections 5 and 6 of the Rajasthan Relief of Agricultural Indebtedness Act, 1957.'

3. The facts in Civil Revision No. 382/ 66 are similar except that the court in which the suit was filed had passed an express order of abatement of the suit.

4. Similar question arose in an execution case out of which Civil Revision No. 353/66 has arisen.

5. The answer to the question referred to us depends on the meaning to be given to the word 'abate' in Section 5 (1) (i) and Section 6 (6) of the Act. In 1964 Raj LW 442, Jagat Narayan, J. has taken the view that the dictionary meaning of 'abate' was 'to put an end to' and that in this sense this expression was used in Order 22 of the Code of Civil Procedure. He pointed out that the expression 'abate' was used in a sense different from stay and that it did not mean merely a stay for an indefinite period as contended by the creditor in that case. He further pointed out that before the amendment of the Act by the amending Act 'The Rajasthan Relief of Agricultural Indebtedness (Amendment) Act, 1960 (Rajasthan Act No. 33 of 1960)', there was a provision only for the stay of proceedings, but the legislature deliberately put the provision for abate-ment of the suit by the amending Act. For all these reasons he held that when a suit or execution application has abated by virtue of Sections 5 and 6 of the Act, it could not be revived and that the remedy of the creditor or decree-holder was to file new suit or new execution application as the case may be.

6. Let us examine the scheme of the Act when it lays down that under certain circumstances, a suit or insolvency petition shall abate. Broadly speaking, the purpose behind Sections 5 and 6 is to confer exclusive jurisdiction on Debt Relief Court of the area in which the debtor ordinarily resides or earns his livelihood to determine all his debts and to grant him appropriate relief in accordance with the provisions of the Act. For this purpose a summary remedy has been provided and it consists in making an application by the debtor for determination of his debts as provided in Section 6 (1). But by the Amending Act (Act No. 33 of 1960) this remedy may also be filed by the creditor or the surety of the debtor. Cases may arise in which a suit or insolvency petition has already been brought or made in a competent court against a debtor. Section 5 (1) (ii) provides that in such a case if the debtor or the person who brought or made such suit or insolvency application applies to that court for stay of proceedings, it may stay the proceedings in such suit or application provided it is satisfied bv affidavit or otherwise that the defendant or the opposite party as the case may be is a debtor within the meaning of the Act. At the same time, it may fix a period not exceeding ninety days within which the application to the Debt Relief Court has to be made. If such an application is not made either by the debtor or by the creditor, the consequences will be that the suit or the insolvency petition in which proceedings have been stayed shall abate. It is so provided in Sub-section (6) (i) of Section 6 of the Act. This appears to be a bit harsh and unjust to the creditor because it may turn out to be a case in which the creditor had opposed the application of a debtor under Section 5 (1) for stay of proceedings on the ground that the defendant or the opposite party as the case may be was not a debtor within the meaning of the Act and yet while filing the application under Section 6 (2) he is asked to take up the position that the defendant or the opposite party is a debtor. But the reason may be that stay of proceedings have been ordered by the court in which the proceedings were pending after satisfaction that the defendant or the opposite party as the case may be is a debtor within the meaning of the Act and the creditor must take appropriate steps by filing revision application or otherwise for setting aside that finding of the court otherwise he must obey that finding and go to the Debt Relief Court which has been granted exclusive jurisdic-tion in the matter. The other types of cases may be where there is already an application pending under Section 6 (1) or Section 6(2) and thereafter a suit or an insolvency petition has been brought against the debtor. Section 5 (1) (i) says that in such a case, the debtor or the person who brought or made such suit or petition may apply for abatement of such suit or application. Section 5 (1) (i) lays down that abatement of suit or insolvency application be ordered when the court in which it is pending is satisfied that an application to the Debt Relief Court has been made, and admitted and is pending.

7. Unfortunately in the Act there is no provision what procedure is to be followed for admission of an application under Section 6. We are inclined to take the view that an application under Section 6 cannot be declared lo be admitted unless the court is satisfied that the application is either made by a person who is a debtor within the meaning of the Act or by his creditor or his surety and such application has been brought in a competent Court. It appeared to us more in consonance with the scheme of the Act as well as with justice and equity that such preliminary matters must be decided before an application is declared to be admitted. But the Act appears not to have been artistically drafted. The heading of Section 7 says that there is some sort of preliminary procedure to be followed in such cases, but the section opens by saying that the preliminary proceeding is to be followed upon the admission of an application under Section 6 or Section 6A and that procedure is that all the creditors of the applicant are to be joined as parties to the proceedings and the Debt Relief Court is to pass an order fixing the date of hearing. There is no indication in the Act that the objection whether the Court is competent to decide the matter or whether the person whoso debts are to be determined is or is not a debtor within the meaning of the Act is to be decided first. In some other Acts of other States of similar nature there is such provision. For example, we may refer to Section 17 of the Bombay Agricultural Debt Relief Act. We should have remedied this defect by laying down that such preliminary matters must be decided after giving notice to all creditors of that person and then only the application is deemed to be admitted. But the opening words of Section 7 are that even such notices are to be given after admission and thus no room is left for us to give such interpretation. We may by the way point out that in the expression 'all creditors of the applicant', the use of tbe word 'applicant' is not appropriate when the application under Section 6 has been filed not by the debtor but by the creditor or his surety. Perhaps this was not noticed while amending Section 6 by the amending Act otherwise Section 7 should also have been amended.

8. Having pointed out these defects in drafting, let us revert to Sections 5 (1) (i) and 6 (6) of the Act. Section 5 (1) (i) lays down that if the Court in which the suit or insolvency petition is pending is satisfied that an application under Section 6 or 6A has been made and admitted and is pending, it may order abatement of such suit or insolvency petition. Similarly, Section 6 (6) (ii) says that if an application under Section 6 is admitted and notice of such admission has been received by the court concerned, then the suit or insolvency proceedings which had been stayed under Clause (ii) of subsection (1) of Section 5 shall abate. We have to defermine what is the meaning of the word 'abate' in these Sub-sections.

9. Ordinarily, it is the duty of a court or a tribunal which has been created for deciding certain disputes between the parties to decide those disputes finally. But circumstances may arise when such final determination may not be possible. Confining ourselves to suits, we find that in the Civil Procedure Code there are provisions for dismissal and abatement in such cases. For example, it is provided in Rule 2 of Order 9 Civil Procedure Code that where on the day fixed in summons for the defendant to appear and answer, it is found that the summons has not been served properly upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, the court may make an order that the suit be dismissed. Similarly, provision in Rule 3 of the same Order is that where neither party appears when the suit is called for hearing, the court may order that the suit be dismissed. When a suit is dismissed, ordinarily the court dismissing the suit becomes functus officio and the remedy of a party lies in an appeal for getting the order of dismissal set aside. But under Rule 4, that very court is competent to set aside the order of dismissal. The suit of the plaintiff had been dismissed because of the default committed by the plaintiff, yet he has the remedy to satisfy the court that there was sufficient cause for him for having committed such default and he may get an order of dismissal of the suit set aside. Thus even dismissed suits can be restored. The suit had been dismissed for the reason that further proceedings could nof be taken thereon on account of default commitred by plaintiff. But the plaintiff may come forward to satisfy the court that for sufficient cause his default should be condoned and the proceedings in the suit may be revived.

10. Let us come more closely to the point and examine in what sense the word 'abate' has been used in Order XXII of the Code of Civil Procedure.

11. Order XXII, Rule 3, Civil Procedure Code provides that where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff orplaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Then it is provided that where within the time limited by law, no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned. Similarly, there is a provision under Order XXII, Rule 4 for the abatement of suit as against the deceased defendant. Under Order XXII Rule 9 the plaintiff or the person claiming to be the legal representative of a deceased plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as it thinsk fit. Thus the abatement of suit under Order XXII is not of such a nature that the proceedings in that suit cannot be continued under any circumstances, or in other words, that suit may be revived if certain conditions provided in Order XXII, Rule 9, Civil Procedure Code, are satisfied. Wo mean to point out that the order of abatement of suit under Order XXII is not of such a nature that it cannot be vacated by that very court. On the other hand, if certain conditions are satisfied, the proceedings in that suit may be continued. It is not final dismissal of the suit in the sense that there can be no continuance of the proceedings in any contingency whatsoever after abatement.

12. We find no difficulty in adopting this meaning of the expression 'abate' while dealing with Sections 5 and 6 of the Act. Now what does Section 5 say? Section 5 (1) (i) says that the court shall abate the suit if it is satisfied on affidavit or otherwise that an application to the Debt Relief Court under Section 6 or Section 6A has been made and admitted and is pending. This Section gives effect to the general rule of law that if two courts of concurrent jurisdiction are seized of the matter, the legisla-:ure may prohibit the other court from taking any proceedings in the matter. When it is said in Section 5 (1) (i) that the court shall abate the suit, it means that the court will stop taking all further proceedings in the suit and may consign it to the record room. In Section 6 (6) of the Act, such abatement is to be ordered in the suit in which the proceedings may have been stayed under Clause (ii) of Sub-section (1) of Section 5 if no such application as is referred to in Sub-section (4) is filed, or if such application is admitted and notice of such admission has been received by the court concerned. In all the cases before us, the abatement has taken place under Section 6 (1) (ii). Now, it may turn out that the application filed by a person claiming himself to be a debtor within the meaning of Sec-tion 2 (cc) of the Act may be dismissed on the objection taken by his creditors that he is not a debtor within the meaning of the Act or the court in which the applicationis filed is not competent to entertain the application or that the application does not comply with the provisions of Section 6 (3). What is to be done after such abatement? The Debt Relief Court dismissing or refecting the application must withdraw the notice of the admission of the application which it had sent to the court concerned and even if it does not expressly withdraw such notice, it must be deemed to have done so by dismissing or rejecting the application of that person. What is the effect then on the abatement of the suit after such notice of admission has been withdrawn by the Debt Relief Court? Will the order of abatement remain in force even after the notice is withdrawn or deemed to be withdrawn? Such cannot be the consequences. In effect the Debt Relief Court informs the court in which the suit is pending that it was not right in sending the notice of admission to the court in which the suit is filed and it further informs that court of the rectification of that mistake. Even if no express information is sent, then by rejecting the application of that person who has filed the application under Section 6 (1) of the Act, the Court must be deemed to have sent such notice. Obviously the order of abatement could not have been operative had this mistake been not made by the Debt Relief Court. As soon as the court rectifies this mistake by rejecting the application, it means to convey to the court that so far as it is concerned, it places no hurdle in the progress of the suit. The court, in which the suit is pending, is therefore duty bound to revive the proceedings either suo motu or at the instance of the plaintiff who has filed the suit.

13. Our answer to the question is that the proceedings in the suit can be revived on the rejection of the application of the debtor. We need not make any pronouncement whether the order of abatement can or cannot be vacated in a case in which no such application has been filed as is referred to in Sub-section (4) of Section 6 of the Act and the abatement of suit takes place by virtue of the force of Sub-section (6) (i) of Section 6.

14. Our answer to the question is that civil Court can revive the proceedings abated under Section 5 (1) (i) or Section 6 (6) (ii) of the Act if the order of admission of the application under Section 6 has been set aside by the Debt Relief Court itself or by any other Court competent to set aside that order.


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