JIWAN DASS Vs. JIWAN DASS

JUDGEMENT

(1.) The facts leading to this appeal from the order of the Tribunal constituted under the Displaced Persons (Debts Adjustment) Act may be briefly stated as follows. It appears that a firm Aishi Lal-Jiwan Dass was carrying on business at Khanewal (West Punjab) before the 15th of August, 1947. On partition of the country the partners of this firm left Pakistan and migrated to India. Ganpat Rai and his son Hari Dar Sarup, who are displaced persons, made an application under section 10 of the Debts Adjustment Act to the Tribunal on the 8th of December, 1952 for the determination of their debt which was alleged to be Rs. 6500/- (application No. 102 of 1952). This application was directed against Jiwan Dass, Aishi Lal and Tirath Dass, father of Jiwan Dass, who were alleged to be the partners of the firm mentioned above. Tirath Dass pleaded that he was not a partner of the said firm. Certain proceedings were taken in view of this defence, but ultimately the creditors gave their claim against Tirath Dass on the 9th of July, 1953 and the case was adjourned to the 6th of October, 1953 for evidence. In the meanwhile another Jiwan Dass claiming to be a displaced creditor made an application under section 10 of the Debts Adjustment Act on the 22nd of July, 1953 for determination of his debt which was alleged to be Rs. 1,050/- (application No. 81 of 1953). Notice was issued to Aishi Lal and Jiwan Dass debtors under section 11 of the Act. The debtors filed two separate petitions under section 11(2) of the Act (application Nos. 85 and 86 of 1953). Thereupon proceedings were started on these applications under section 11(2) read with section 5 of the Act. The debtors admitted the existence of the debts of the creditors but they pleaded that they were not liable to pay the debts claimed by Ganpat Rai and Hari Har Sarup as they had been paid off in Pakistan and that in any case they were time barred. Jiwan Dass creditor pleaded that the debts claimed by the other creditors were fictitious while Ganpat Rai and his son, creditors, pleaded that the debt claimed by Jiwan Dass was fictitious and further that the latter had made the application with a view to enable the debtors to apply under section 11(2) of the Act. The Tribunal framed the following two issues :-

(2.) The Tribunal held that the claim of Jiwan Dass creditor was fictitious and the application under section 10 was made by him to enable the debtors to apply under section 11(2) and that as this application under section 10 was collusive it could not furnish as a cause of action for enabling displaced debtors to apply under section 11(2). On these findings the Tribunal came to the conclusion that the applications of displaced debtors for adjustment of their debts were time-barred as they were not filed within one year after the date on which the Act came into force as laid down in section 5 of the Act. Accordingly it dismissed the applications of the displaced debtors made under section 11(2) of the Act. The present appeal has been filed by Jiwan Dass debtor alone. The creditor whose claim has been held to be fictitious has not filed any appeal in this Court. The other debtor, namely Aishi Lal, as well as all the creditors have been impleaded as respondents.

(3.) It has to be noted that the Tribunal has dismissed the applications under section 11(2) as if they had been under section 5(1) of the Act on the ground that they had been made after the expiry of one year from the date on which the Act cam into force. It is not understood how an application under section 11(2) came be considered to be one under section 5 of the Act. It is true that once an application is made under section 11(2) the procedure and provisions applicable under section 5 become applicable to it. The two applications, however, are separate kinds of applications and independent of each other and they are filed under different circumstances. The Act considers the two applications as distinct and they are separately mentioned in sections 15, 32, 44 and 52 of the Act. Accordingly in my opinion the Tribunal was in error in dealing with the applications under section 11(2) as ones under section 5 of the Act. They must be dealt with and decided as applications under section 11(2) of the Act.