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Jai Singh Vs. Mangtoo and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. Nos. 11 to 39 of 1961
Judge
Reported inAIR1962HP10
ActsEvidence Act, 1872 - Section 115; ;Arbitration Act, 1940 -Sections 2, 14 and 31; ;Tenancy Laws; ;Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953
AppellantJai Singh
RespondentMangtoo and ors.
Appellant Advocate Hira Lal and; T.P. Vaidya, Advs.
Respondent Advocate Hari Krishan, Adv.
DispositionPetition dismissed
Cases ReferredBade v. Emperor
Excerpt:
(i) arbitration - jurisdiction - arbitration act, 1940 - whether subject-matter of reference to arbitration was within jurisdiction of civil court - petitioner contended that dispute between parties was not as to quantum of rent but as to quantum of produce and as such subject-matter of reference was within cognizance of civil court and not within exclusive cognizance of revenue court - as per agreement dispute between parties was about quantum of produce deliverable to petitioner as rent - in case petitioner is landlord and respondents are tenants claim to recover rent would be exclusively within cognizance of revenue court and no other court can entertain such claim - petitioner is usufructuary mortgagee of land of which respondents are tenants - being successor-in-interest of landlord..........in those sections there is a certain distinction between the civil courts there spoken of and the rent courts established by act x of 1859 and that the civil courts referred to in section 77 and the kindred sections mean civil courts exercising all the powers of civil courts which only exercise powers over suits of a limited class. in that sense there is a distinction between the terms; but it is entirely another question whether the rent court does not remain a civil court in the sense it is deciding on purely civil questions between persons seeking their civil rights and whether being a civil court in that sense it does not fall within the provisions of act no. viii of 1859.'their lordships on a consideration of provisions of act x of 1859 and in particular of section 160 thereofand.....
Judgment:

C.B. Capoor, J.C.

1. This petition and Civil Miscellaneous Petitions Nos. 12 to 39 of 1961 purport to be under Article 227 of the Constitution of India and in the alternative under paragraph 35(1)(a) of the Himachal Pradesh (Courts) Order, 1948. Common questions of law arise in the aforesaid petitions and I propose to dispose of all of them by this order.

2. The petitions are directed against orders of the learned Additional Subordinate Judge Mandi whereby applications filed by the petitioner for the filing of an award under Section 14 of the Arbitration Act of 1940 were thrown out on the ground that the same were not maintainable.

3. The petitioner is the usufructuary mortgagee of certain land in village Kasrela Tehsil Sadar District Mandi and the respondents are the tenants of different parcels of the aforesaid land. There was dispute between the parties about the quantum of rent payable for the years Rabi 2004 B. to 2010 B. which was referred to one Shri Sohan Lal for arbitration. The arbitrator made his award on the 28th of July, 1958, and made an application for the filing of the aforesaid award in the Court of the Assistant Collector first grade Mandi. That application was returned by the learned Assistant Collector on the ground that under the Arbitration Act a revenue Court had no jurisdiction to entertain it.

Thereafter applications were filed by the petitioner in the Court of the Senior Subordinate Judge Mandi for the filing of the aforesaid award which were in due course transferred to the Additional Sub-Judge for disposal who, by his order dated 19-9-1960, dismissed all of them an the ground that the subject-matter of reference was exclusively within the cognizance of a revenue Court and as such a civil Court had no jurisdiction to entertain them. The correctness of the aforesaid orders has been challenged by the petitions under consideration,

4. The prayer of the petitioner is that this Court may order the award to be filed in the appropriate Court and pass such other order as may be deemed to be fit and expedient.

5. The learned Additional Subordinate Judge held that the respondents were estopped from urging that the civil Court did not have jurisdiction to entertain the applications and as such he had jurisdiction to entertain them. He further held that the applications were not maintainable inasmuch as the subject-matter of reference was beyond the jurisdiction of a civil Court.

6. Three questions arise for determination:

(1) Whether the respondents were estopped from urging that the civil Court had no jurisdiction to entertain the applications under consideration?

(2) Whether the subject-matter of reference to arbitration was within the jurisdiction of the civil Court?

(3) Whether a revenue Court is also a civil Court within the meaning of the word 'Court' as used in Sections 14 and 31 of the Indian Arbitration Act, 1940?

7. QUESTION NO. 1: It has already been noticed that the learned Additional Subordinate Judge was of the opinion that the respondents were estopped from pleading that the civil Court had no jurisdiction to entertain the applications on the ground that when the aforesaid applications were filed in the revenue Court they had urged that that Court had no jurisdiction. I am, however, unable to agree with the aforesaid conclusion. It is not the contention of the respondents that the revenue Court has jurisdiction to entertain the applications under consideration. Their contention merely is that the civil Court has no jurisdiction to entertain them and I do not think that the principle of estoppel can operate as a bar to the putting forward of the aforesaid argument.

There may be certain cases which may not be cognizable either by a civil Court or a revenue Court and in such cases if a matter is brought before a civil Court after a finding by the revenue Court that it has no jurisdiction to take cognizance of it the Other party may urge that the civil Court has also no jurisdiction to entertain the same and in such cases the principle that a party cannot drive his adversary from pillar to post and from post to pillar does not apply. I am, therefore, of the opinion that the respondents are not estopped from urging that the civil Court did not have jurisdiction to entertain the applications under consideration.

8. QUESTION No. 2: If has been contended on behalf of the petitioner that the dispute between the parties was not as to the quantum of rent but as to the quantum of produce and as such the subject-matter of reference was within the cognizance of a civil Court and not within the exclusive cognizance of a revenue Court. The contention, as will presently appear, is barren of substance. It has been stated in the agreement for reference that the dispute between the parties was about produce rent -- the actual words used are 'lagan paidawar'. Even in the petitions under consideration it has been stated that the parties agreed to refer the dispute regarding the quantum of rent to the arbitration of Shri Sohan Lal. There is thus no doubt that the dispute between the parties was about the quantum of produce deliverable to the petitioner as rent.

9. The next point that arises for decision is as to whether the subject-matter of reference was within the exclusive jurisdiction of a revenue Court or not. Section 111 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, inter alia enumerates in three groups the suits which shall be instituted in and heard and determined by revenue Courts and provides that no other Court shall take cognizance of any dispute or matter with respect to which any suit might be instituted in the revenue Courts. In the third Group are suits by a landlord inter alia for arrears of rent. According to Section 2 of the aforesaid Act:

'landlord' means a person under whom a tenant holds land and to whom the tenant is or but for a contract to the contrary would be liable to pay rent for that land;

'tenant' means a person who holds land under another person and is or but for a contract to the contrary would be liable to pay rent for that land to that other person;

'tenant' and 'landlord' include the predecessors and successors-in-interest of a tenant and landlord respectively; and

'rent' means whatever is payable to the landlord in money, kind or service by a tenant on account of the use or occupation of land held by him.

It would thus appear that if the petitioner is a landlord and the respondents are tenants the claim to recover rent would be exclusively within the cognizance of a revenue Court and no other Court can entertain such a claim.

10. The petitioner is, the usufructuary mortgagee of the land of which the respondents are tenants. Being a successor-in-interest of the landlord the petitioner is a landlord and it is clear that if a suit had been filed by the petitioner against the respondents for recovery of rent it would not have been cognizable by a civil Court rather it would have lain exclusively in a revenue Court.

11. On behalf of the petitioner reliance has been placed upon the following rulings in support of the contention that if a suit had been filed by him for recovery of rent it would have been within the cognizance of a civil Court: (i) Sher Singh v. Mazrulla, AIR 1916 Lah 311(1), (ii) Ishar v. Ditta, AIR 1931 Lah 623 and (iii) Sundar Singh v. Karam Chand, AIR 1935 Lah 976. The aforesaid cases are distinguishable from the instant ones. In the 1916 Lahore case a lease was executed by a mortgagee of a revenue paying land in favour of the defendant who was authorized to recover rent from the tenants and it was held that the suit was not between landlord and tenant and was cognizable by a civil Court.

In the 1931 and 1935 Lahore cases a suit for rent against the tenants was filed by purchasers ofportions of rent. The plaintiffs of those cases were mere assignees of the right to recover rent and did not have any interest in the land. In the cases under consideration the petitioner is a usufructuary mortgagee of the land and not a mere assignee or transferee of the right to recover rent. He is a landlord within the meaning of the word 'landlord' as defined in the aforesaid Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act.

12. The relevant portion of Section 31 of the Arbitration Act, 1940, runs as below:

'Subject to the provisions of this Act an award may be filed in any Court having jurisdiction in the matter to which tie reference relates.'

The word 'Court' according to Section 2(c) means a civil Court having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of a suit, but does not, except for the purpose of arbitration proceedings under Section 21 include a Small Cause Court. The Court of the Senior Subordinate Judge or Additional Subordinate Judge could not have entertained a suit filed by the petitioner against the respondents for recovery of rent and the applications for the tiling of the award could not have been made in those Courts. The learned Additional Subordinate Judge was, therefore, perfectly right in not entertaining those applications.

13. QUESTION NO. 3: It has been contended on behalf of the petitioner that a revenue Court is also a civil Court inasmuch as it decides disputes of a civil nature and as such the application for the filing of the award properly lay in the Court of the Assistant Collector first grade and it erred in disowning jurisdiction and returning the same for presentation to the proper Court.

14. The definition of the word 'Court' as used in the Arbitration Act of 1940 has been quoted in the earlier portion of this order and it will appear therefrom that it means a civil Court. The words 'Civil Court' have not been defined in the Arbitration Act but those words have been used in other Acts such as the Punjab Tenancy Act, the Bengal and Assam Civil Courts Act and the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, and in those Acts those words -do not include the revenue Courts.

It is significant that in the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act both the words 'civil Court' and 'revenue Court' have been used e.g., Section 111. Even in the Code of Civil Procedure which consolidates and amends the laws relating to the procedure of the Courts of civil judicature the words 'Civil Court' and 'Revenue Court' have been used to denote the different kinds of Courts e.g. Sections 3 and 5, Civil P. C.

In Section 5 a 'revenue Court' has been defined to mean a Court having jurisdiction under any local law to entertain suits or other proceedings relating to rent, revenue or profits of land used for agricultural purposes but does not include a civil Court having original jurisdiction under the Code to try such suits and proceedings as being suits and proceedings of civil nature. Section 3 of Civil Procedure Code inter alia provides that every civil Court of a grade inferior to that of a District Court is subordinate to a High Court and a District Court. A revenue Court, it is true, decides suits of a civil nature and in that sense it is a Court of civil judicature but it is not a civil Court.

There is thus a clear distinction between a civil Court and a revenue Court and it must be assumed that when the Legislature passed the Arbitration Act of 1940 it was alive to that distinction. If the intention of the Legislature was that the word 'Court' as used in the Arbitration Act meant revenue Court also nothing would have been easier for it than to have specifically mentioned the revenue Court also in the definition clause or to have defined the word 'Court' to mean a Court having jurisdiction to decide the questions forming the subject-matter of a suit and to have excluded the Courts which were not intended to be covered by the definition such as a Court of Small Causes, a criminal Court or a Court Martial or a Tribunal like the Income-tax Tribunal.

15. In the case of Bithal Das Khanna v. Shri Nath Das Khanna, reported in AIR 1949 All 360, it was held that the term 'civil Court' in Section 2(c) does not include a revenue Court. In the case of Bennett Coleman and Company v. Workmen, reported in AIR 1955 N. U. C. (LATI) 1467 it was held that an appellate Industrial Tribunal was not included in the words 'civil Court' as used in Section 2(c) of the Arbitration Act.

16. On behalf of the petitioner reliance has been placed upon the following cases in support of the contention that a revenue Court is also a civil Court: (1) Nilmoni Singh Deo v. Taranath Mukerjee, ILR 9 Cal 295 (PC), (2) Ram Lochan Singh v. Beni Prasad Kumri, 1 Ind Cas 933 (Cal), (3) G. Veeraswami v. Manager, Pittapur Estate, ILR 26 Mad 518 and (4) Bade v. Emperor, AIR 1935 Nag 125(1). The aforesaid cases were decided prior to the coming into force of the Arbitration Act of 1940.

The facts of ILR 9 Cal 295 (PC) (supra) --which case was followed in the other cases referred to above -- briefly were that decrees for rent were passed by the Deputy Commissioner Manbhum as the Collector of the district under Act X of 1859. Those decrees were transferred by him to the Civil Court for execution and a question arose as to whether such an order of transfer could have been made. During the course of their judgment their Lordships of the Privy Council observed as below:

'It must be allowed that in those sections there is a certain distinction between the civil Courts there spoken of and the Rent Courts established by Act X of 1859 and that the civil Courts referred to in Section 77 and the kindred sections mean civil Courts exercising all the powers of civil Courts which only exercise powers over suits of a limited class. In that sense there is a distinction between the terms; but it is entirely another question whether the Rent Court does not remain a civil Court in the sense it is deciding on purely civil questions between persons seeking their civil rights and whether being a civil Court in that sense it does not fall within the provisions of Act No. VIII of 1859.'

Their Lordships on a consideration of provisions of Act X of 1859 and in particular of Section 160 thereofand of the hardship which would otherwise be caused came to the conclusion that the Rent Courts established by Act X of 1859 must be held to be civil Courts within Section 284 of Act No. VIII of 1859. Their Lordships did not lay down and should not be understood to have laid down as a proposition of universal application that a Revenue Court is a civil Court. That case is, therefore, distinguishable from the instant cases. It was also considered in AIR 1949 All 360 supra and was distinguished.

16a. In 1 Ind Cas 933 and AIR 1935 Nag 125(1) referred to above it was held that Revenue Courts were also Courts of civil judicature within the meaning of Civil Procedure Code. A Court of civil judicature has a wider connotation than a civil Court and merely because a Revenue Court may be a Court of civil judicature it cannot be held to be a civil Court.

17. In ILR 26 Mad 518 supra the Sub-Collector held a patta to be improper and released certain property in a summary suit under the Rent Recovery Act. The District Judge reversed the finding on appeal and remanded the case under Section 562 of the Code of Civil Procedure. An appeal was taken to the High Court against the order of remand and it was argued that no appeal lay inasmuch as the adjudication by the Sub-Collector was not a decree and no order of remand could have been made.

This objection was repelled by the High Court and it was held that the adjudication by the Sub-Collector was a formal expression of an adjudication on a right claimed within the meaning of the definition of a decree contained in Section 2 of the Code of Civil Procedure. That case is also thus distinguishable from the cases under consideration.

18. In AIR 1949 All 360 supra, Bind Basni Prasad, J. who delivered the judgment of the Court observed as below:

'I have no hesitation to say that the expression 'Civil Court' as used in Section 2(c), Arbitration Act, 1940, does not include the revenue Court. The position thus is that the revenue Courts cannot deal with awards made without the intervention of the Court or arbitrations with the intervention of a Court as regards matters not before them in any pending case. By virtue of the saving provisions contained in Sections 46 and 47, Arbitration Act, 1940 they can, however, deal with awards made through their intervention in cases pending before them.'

I am in respectiful agreement with the aforesaid observations.

19. It was also argued by the learned counsel for the petitioner that prior to the coming into force of the Arbitration Act of 1940 a dispute relating to a matter exclusively within the jurisdiction of a revenue Court could be referred to arbitration without the intervention of Court and as under the Arbitration Act there is no prohibition for reference of such disputes to arbitration it should be held that such disputes can be referred to arbitration and that the words 'Civil Court' as used in Section 2(c) of the Arbitration Act include a Revenue Court.

Assuming but not deciding that prior to the coming into force of the Arbitration Act such disputes could be referred to arbitration it would not necessarily follow that under the Arbitration Act also such disputes can be referred to arbitration. The aforesaid Act not only consolidates but also amends the law relating to arbitration and in its wisdom the Legislature may well have amended the previous law relating to references to arbitration of matters within the exclusive jurisdiction of a Revenue Court.

20. It is a well settled rule of interpretation that the intention of the Legislature has to be gathered from the words used and that if the words used are not ambiguous considerations of hardship should not be imported in construing them. The function of a Court of law is to interpret the law as it finds it and not to declare the law at it should or ought to be.

21. I am, therefore, of the opinion that the applications under consideration were maintainable neither in the civil Court nor in the revenue Court. The petitioner is, therefore, not entitled to any relief.

22. This petition and Civil Miscellaneous Petitions Nos. 12 to 39 of 1961 are dismissed withcosts. Let a copy of this order be placed on therecord of Civil Misc. Petitions Nos. 12 to 39 of1961.


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