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Smt. M.K. Srimathi Ammal Vs. P. Chellammal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1982)1MLJ315
AppellantSmt. M.K. Srimathi Ammal
RespondentP. Chellammal and anr.
Cases ReferredM. M. Ramanathan Chettiar v. Ramaswami Pittai and Anr.
Excerpt:
- - or the court may put off dealing with the suit effectively staying its hand in the suit, for the duration of the moratorium. the question is whether this is an appropriate thing to do, even when section 3 had been clearly contravened. , that the principle of stare decisis would only apply if the previous decision was precisely on the same provision. , i would also like to refer to the provisions of section 9 of the civil procedure code, to reinforce his conclusion. for, it is precisely on the basis of the cause of action being what it is, that section 5 of act (xv of 1976), is sought to be invoked......time to time by the subsequent enactments passed by the state legislature. in overall result, the period of moratorium against filing of suits for recovery of debts subsisted from 15th january, 1976 to 15th july, 1978.2. the petitioner in this revision brought a suit against the respondent during the subsistence of the moratorium on 20th september, 1976. the suit was instituted on the file of the sub-court, madurai. this suit although its institution was barred by the statute nevertheless appears to have been numbered as original suit no. 106 of 1976. in interlocutory application no. 89 of 1977, the defendant thereupon moved the court to dismiss the suit on the score that the suit had been instituted in contravention of the bar under section 3 of the act. the court allowed the said.....
Judgment:
ORDER

V. Balasubramanyan, J.

1. The Tami Nadu Indebted Agriculturists (Temporary) Relief Act (XV of 1976) by Section 3 laid down that no suit for the recovery of a debt shall be instituted against any agriculturist in any civil Court on and from the date of commencement of the Act and before the expiry of one year from the said date. Under Section 1 (3), the Act was deemed to have come into force from 15th day of January, 1976. The one year period referred to in Section 3 would thus expire on 15th January, 1977. The moratorium period of one year was extended from time to time by the subsequent enactments passed by the State Legislature. In overall result, the period of moratorium against filing of suits for recovery of debts subsisted from 15th January, 1976 to 15th July, 1978.

2. The petitioner in this revision brought a suit against the respondent during the subsistence of the moratorium on 20th September, 1976. The suit was instituted on the file of the Sub-Court, Madurai. This suit although its institution was barred by the statute nevertheless appears to have been numbered as Original Suit No. 106 of 1976. In Interlocutory Application No. 89 of 1977, the defendant thereupon moved the Court to dismiss the suit on the score that the suit had been instituted in contravention of the bar under Section 3 of the Act. The Court allowed the said application, and dismissed the suit, as a consequence. The said order allowing the application was made on 19th July, 1977. This revision has been brought by the plaintiff as agaist the order allowing Interlocutory Application No. 89 of 1977.

3. It may be noticed that on the date when the Court below allowed the first defendant's application, namely, 13th July, 1977, the period of moratorium was subsisting. But the question is, whether the dismissal of the suit can be supported on the construction of Section 3 of the Act. In any case, now that the period of stay (sic) under Act (XV of 1976) as extended by Act (II of 1977), had spent itself out, the question is whether this Court should not take note of subsequent developments and look at the matter from a realistic point of view, on the basis of the existing situation, here and now. Section 3 of the Act, no doubt, bars the initiation of the suit during the period of moratorium. But, the Act does not say how a suit which has been brought on the file of the Court in contravention of this interdict by the Legislature should be dealt with by the Court. Several modes of dealing with such a suit suggest themselves to one's mind. The receiving section of the Court, by a ministerial disposal can reject or return the plaint as one filed in contravention of the statute. The Court itself can hold in abeyance the number of the suit. Or the Court may put off dealing with the suit effectively staying its hand in the suit, for the duration of the moratorium. The Court below had done none of those things, but had chosen to dismiss the suit altogether. The question is whether this is an appropriate thing to do, even when Section 3 had been clearly contravened.

4. I do not think it, necessary to deal at length with the question of construction of the section or with the question as to the consequences of non-compliance with the section. For, this matter has. been dealt with in extenso in a judgment of Ratnam, J., reported in Srihari Babu Naidu v. S. Alamelu Ammal : (1980)2MLJ115 .

5. Mr. Sivamani, learned Counsel for the respondent, submitted that the decision of Ratnam, J., has to be considered as not quite consistent with an earlier decision of a learned single Judge of this Court by Rajagopalan, J., reported in RM. M. Ramanathan Chettiar v. Ramaswami Pittai and Anr. : AIR1957Mad780 . A reference to the judgment of Ratnam, J., shows that technically the decision of Rajagopalan, J., was not binding on him, since the earlier ruling was rendered under a different Act. T agree with Ratnam, J., that the principle of stare decisis would only apply if the previous decision was precisely on the same provision. On the particular enactment which is now before me, namely, Act XV of 1976, Ratnam, J.'s decision is the only decision holding the field, and not the decision of Rajagopalan, J. Hence on the principle of stare decisis, I am bound to follow only the ruling of Ratnam, J.

6. Apart from the reasonings to be found in the judgment of Ratnam, J., I would also like to refer to the provisions of Section 9 of the Civil Procedure Code, to reinforce his conclusion. Section 9 says that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 3 of' Act XV of 1976 and the corresponding provisions of the subsequent Temporary Debt Relief enactments do not bar the cognizance of the suits for enforcement of debts. They do not bar the cognizance, either expressly or impliedly. All that Section 3 indicates is that for the duration of the period of moratorim, no suit for a debt j shall be instituted. In other words, it is only a temporary bar for the institution of the suit and not a bar which takes away the suit from the cognizance of the civil Courts altogether. The real import of the statutory bar under this Act is also seen from the fact that Section 5 itself refers to 'the time during which; the institution of the suit was barred by Section 3'. It is quite plain therefore that the; moment the period of the moratorium comes to a close the suit cannot be described as one whose cognizance is barred within Section 9 of the Code. Hence it would be incorrect to give a disposal by way of a final quietus to a suit in a fashion which will go against the provisions of Section 9 of the Civil Procedure Code.

7. Mr. Sivamani referred me to Section 26 of the Code to emphasise the obvious, namely, that a suit is instituted by the presentation of a plaint. From this provision in the Code he argued that when Section 3 of Act (XV of 1976) bars the institution of a suit, then the effect of that bar is to prevent a plaint being presented before the Court. While I agree with learned Counsel that even at the threshold the plaint must be stopped from entry into the registry of the Court, but, the whole point is that neither Section 3 of Act (XV of 1976) nor Section 26 of the Code says how the Court can deal with a situation where, for some reason, the plaint has not only been received by the Court's registry, but it has also been numbered as a suit. Nor do these provisions say what is to be done with the suit, wrongly taken on file and given a number after the expiry of the period of the moratorium.

8. Learned Counsel also referred to Order 7,. Rule 11 of the Code to make a submission that the dismissal of the suit by the Court below was in accordance with the law. He particularly relied on Rule 11(a) of Order 7, which says that the Court shall reject a plaint wherein cause of action is not disclosed. I do not think this rule has any relevance to the present discussion. In my judgment, in a case of this kind, the suit cannot be rejected for non-disclosure of the cause of action. For, it is precisely on the basis of the cause of action being what it is, that Section 5 of Act (XV of 1976), is sought to be invoked. The cause of action pleaded in the suit is an unpaid debt and hence Order 7, Rule 11 (a) has no application.

9. Learned Counsel than relied on Order 7, Rule 11(d). Under this sub-rule, the Court is under a duty to reject a plaint where the I suit appears, from the statement in the plaint to be barred by any law. This clause will inot apply to the present situation because, as I have already observed the bar which affects the present suit under Section 3 of Act (XV of 1975) is not the kind of bar which is spoken of under Section 9 of the Code, and which is referred to under Order 7, Rule 11(d) of the Code. As I earlier mentioned more than once Section 3 of Act (XV of 1976) does not bar the suit, but only prevents the suit from being filed for a particular duration of time.

10. For all the above reasons, I hold that the Court below was not right in granting the application filed by the defendant to dismiss the suit for the reason that it was instituted while the moratorium under Section 3 of the Act (XV of 1976) was subsisting. I, therefore set aside the order. In its place, there shall be an order dismissing that application. The consequence of my order is that it would render the lower Court's dismissal of the suit a nullity. The result is that the Court below will take back the suit on file and hear and determine the suit in accordance with law.

11. The civil revision petition is disposed of accordingly. There will be no order as to costs in the special circumstances of the case.


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