BHOLA RAM Vs. MANOHAR LAL AND ANR.

JUDGEMENT

(1.) BHOLA Ram, Appellant in this Court, instituted a suit for the realisation of Rs. 375 from the Defendants Manohar Lal and Raghbir Singh, on the basis of an assignment of the arrears of rent pertaining to kharif 1960, and rabi 1961; the agreement of assignment being dated 9th June, 1961. It appears, according to the Plaintiff's case, that Defendant No. 2 had dishonestly and collusively admitted the right of Defendant No. 1 Manohar Lai, to receive the rent from him, the admission having been made in proceedings for the recovery of rent filed by Defendant No. 1 against Defendant No. 2 in the Court of the Assistant Collector II Grade. Defendant No. 1, according to the Plaintiff's case, had no right to receive the rent in view of the agreement of assignment. He also pleaded that the Defendants were estopped from urging that no agreement had been executed or that the Plaintiff was not entitled to realise the arrears of rent as claimed. A preliminary objection questioning the jurisdiction of the Civil Court to decide the suit was raised, but the same was apparently repelled by the trial Court on 4th June, 1962. The suit was also' resisted on the merits. The pleadings gave rise to three issues on the merits, but it is unnecessary to refer to them because this appeal is confined to a very narrow point of jurisdiction which would appear hereafter. The trial Court decreed the Plaintiff's suit and also found that Defendant No. 1 had waived his right to receive the rent from Defendant No. 2 as pleaded in the plaint.

(2.) MANOHAR Lal, Defendant, took the matter on appeal to the Court of the learned Senior Subordinate Judge and in that Court, at the outset, reliance was placed on the Punjab Tenancy (Amendment) Act of 1963 (Act No. 18 of 1963) whereby Section 77(3)(n) of the Punjab Tenancy Act of 1887 had been amended in April, 1963, that is to say, during the pendency of the appeal in that Court. According to this amendment suits for the recovery of arrears of rent or the money equivalent of rent by any person other than a landlord to whom a right to recover the same has been sold or otherwise transferred were also included in sub -section (3), with the result that such suits were, according to the amendment, to be instituted in and heard and determined by revenue Courts and no other Court was to take cognizance of any dispute or matter with respect to which any such suit might be instituted. Holding the amended provision to relate to procedure, the lower appellate Court concluded that under general principles this provision would be retrospective in nature and an appeal being continuation of a suit would be applicable to these provisions at that Stage. Relying on Soman and Ors. v. Kedar Nath : A.I.R. 1953 All. 254, a decision by Misra, J. and on Bireswar Moral v. Indu B. Kundu : A.I.R. 1943 Cal. 573 (D.B.) the learned Senior Subordinate Judge held that the Civil Court had no jurisdiction to hear the Plaintiff's suit and so holding ordered that the plaint be returned to the Plaintiff for presentation to the proper Court.

(3.) ON second appeal, it has been contended by the learned Counsel for the Appellant that the view taken by the lower appellate Court is completely erroneous and it has declined on illegal grounds to exercise the jurisdiction vested in it by law. The learned Counsel has also pointed out that the view taken by Misra J. in Soman's case was in 1954 overruled by a Division Bench in Hublal v. Mst. Dulara, 1954 All LJ 762, and that unfortunately this fact was not brought to the notice of the Court below. It has also been submitted that in Biresvoar Moral's case after a decree for money had been obtained and while it was being executed, the judgment -debtor applied before the Debt Settlement Board under the Bengal Agricultural Debtors Act and a notice under that Act Was issued to the opposite party. In pursuance of that notice, the Munsif stayed execution proceedings. A few days later, the Bengal Agricultural Debtors' Amendment Act (No. 8 of 1940) came into force, according to which Section 20 of the earlier Act (No. 7 of 1936) was amended so as to confer on the Board jurisdiction to decide the question whether a liability was a debt or not. In this setting, the question arose whether the Settlement Board had jurisdiction to decide whether the liability in question was or was not a debt. It was in this context that it was observed that the amendment in question pending the execution of the decree covered the case and the Munsif had jurisdiction to determine whether the liability of the debtor under the decree was a debt within the meaning of Act 7 of 1936. On this ground, the Appellant's learned Counsel has contended that the Calcutta decision is far from relevant for the purposes of the present case.