KHEM DUTTA Vs. ADURAM

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and decree of the Revenue Appellate Authority Bikaner dated 22nd September, 1961 by which he has rejected on an interest or Re as mortgage money accept the amount the appeal against the judgment and decree of the Sub-Divisional Officer, Hanuman-garh, dated 28th April, 1961 in a suit for redemption of the disputed land. The brief facts of the case are that the respondent Aduram preferred on 13. 8. 57 a suit for redemption of the disputed land with the allegation that it had been mortgaged for a sum of Rs. 1900 on the condition that the interest on the amount could be equalised by the produce of the land and another sum of Rs. 600 1/-% per month and that he was prepared to pay Rs. 1900/-and get the land released but the appellant was not prepared to and to part with the land that the payment of Rs. 600/-- along with the interest was not finding on Aduram, respondent, before getting the land redeemed. The prayer was that a sum of about Rs. 42000/- had already been recovered from the produce of the land by the appellant and therefore, the land should be ordered to be redeemed on payment or such amount as may be found to be due. The suit was traversed by the appellant who alleged that the land could be redeemed only on payment of Rs. 22032/9/ -. Necessary issues were framed and the trial of the case was started. The case, however, thereafter has had a very chequered history. More than once it was dismissed in default, besides having been ordered to proceed once ex parte also against the defendants. The proceedings to set aside these orders themselves took a sufficiently long time. There were attempts to have the case transferred also from the trial court and that delayed it further. On 3. 9. 1959 the defendant/respondents preferred an application u/s 151 C. P. C. that the plaintiffs have preferred an application to the Civil Judge, Suratgarh under the provisions of the Rajasthan Relief of Agricultural Indebtedness Act, 1957 (Act No. 28) and that the proceedings in this suit be stayed. THIS application was rejected by the learned trial court. An appeal was preferred to the Addl. Commissioner who also rejected it, although for reasons different from those given by the learned trial court. The learned trial court observed simply that the suit could not be stayed u/s 151 C. P. C. The learned Addl. Commissioner, Bikaner examined the provisions of the Rajasthan Relief of Agricultural Indebtedness Act, 1957 (hereinafter referred to as the Act) and held that although an application for the stay of such suit could be prepared u/s 5 of the Act to enable the debtor to prefer an application u/s 6 of the Act before a Debt Relief Court, it can be done only when a plaint was presented to a court of civil jurisdiction against the debtor who is an agriculturist or against whom a petition is made for getting declared such debtor as insolvent. He found that in the present case the suit was filed by the debtor himself and not against him, which was a contingency quite reverse to the contingency envisaged by sec. 5 of the Act and, therefore, this section was not applicable. It was on this ground that the learned Addl. Commissioner was pleased to dismiss the application. The case thereafter proceeded but, it appears only for the arguing of the case on the legal issues. To have the case fully appreciated, it will be advantageous to reproduce the issues framed in this case also. They were, as noted in the margin.

(2.) IT appears, in the mean time, the proceedings started by the plaintiff respondents in the Court of Civil Judge, Suratgarh, continued, and in the present suit no progress was made except that adjournments due to various reasons referred to above continued to operate. The learned Civil Judge Suratgarh decided on 7. 9. 1960 the Misc. case No. 13 of 1958. Thereby he decided that the plaintiff respondents had not to pay any amount towards this mortgage debt and, therefore, ordered that they are "discharged" of the liability to pay Rs. 25,000/-by way or mortgage money. The plaintiff respondents then produced this judgment before the learned trial court and wanted the case to be decided on that basis. The appellant represented against it that a revision had been preferred to the District Judge and that it was not decided. IT is not clear from the record whether the decision of the learned District Judge, if any, was produced before the trial court. On 28. 4. 61 however, it decided the case on the basis of the judgment dated 7. 9. 60 given by the Civil Judge referred to above. The Issue Nos. 1,2,3,4,6 and 7, the onus of proving which was on the defendant appellant, were decided against him on the ground that the appellant did not say anything about them. IT is not quite clear, but it appears, only the remaining Issue No. 5, the onus or proving which was on the plaintiff-respondents was decided by the learned trial court in their favour, when it held that the plaintiff respondents were not required to pay any mortgage money to the defendant appellant and decreed that the latter should transfer the possession of the mortgaged land to the former without payment of any sum whatsoever. The basis for this judgment and decree was the judgment of the Civil Judge Suratgarh dated 7. 9. 60 referred to above. An appeal was preferred this time to the Revenue Appellate Authority Bikaner which decided it on 26. 12. 61. IT was urged before him that vide sec. 24 (2) of the Act, the proceedings or suit commenced before the enforcement of the Act were "protected and exempted from the provisions of the Act. " This plea was very naturally rejected, and so rightly, by the learned Revenue Appellate Authority. Sec. 24 (2) applied only to the proceedings started under various Acts repealed vide sub sec. (1) as specified in the Schedule to the Act. Certainly, the present was not a suit under any of these enactments. He further went on to observe that the decision of the Civil Judge, Suratgarh dated 7. 9. 60 had been upheld in revision by the District Judge also on 19. 8. 61 and that that judgment was binding on the trial court. He, therefore, dismissed the appeal. In this second appeal, it has been very vehemently urged on behalf of the appellant that the learned Courts below should have themselves decided the amount of mortgage money payable to him and that reliance should not have been put on the order of the Debt Relief Court alone. IT may also be stated that vide Notification No. F. (l) 1651/rev. D/51, dated 2nd May, 1958 the Civil Judge Suratgarh has been appointed to be the Debt Relief Court. IT has been further urged that the other issues too should have been decided by the learned lower Appellate Court and that as it has not decided them, the judgment of the learned lower Appellate Court cannot be up-held. We take the last point first. A bare perusal of the judgment of the learned lower Appellate Court will go to show that the determination of the issues (as stated above required to be proved by the defendant appellant) was never questioned or urged before the learned lower Appellate Court. Perusal of the judgment of the trial court also goes to show, as has already been stated above, that the appellant did not urge anything in support of those issues before it. Those issues could, therefore, be naturally decided by the learned trial court against him ; and the learned lower Appellate Court could not have felt the necessity of considering that decision under the circumstances. But still in the interest of justice we asked the learned counsel appearing for the appellant if there was anything proved by his client on the basis of which he could claim a decision in his favour. He was. , however, not able to cite any evidence produced by the appellant in respect of those issues. Now about the first points : The only thing urged by the learned counsel for the appellant is that the judgment of the learned Civil Judge Suratgarh, whom we shall refer as "debt Relief Court" hereafter, was not a judgment admissible in evidence u/se 40 to 43 of the Indian Evidence Act. These sections, however, deal wholly with the relevancy of certain judgments. They do not lay down that any judgment between the parties in a suit or a proceeding could not be an evidence in another suit or proceeding between the same party. Such a judgment obviously can operate as resjudicata in another suit or proceeding or even a pending suit or proceeding or even if it could not operate as resjudicata, it can be relied upon on the general principles of resjudicata. There is thus no force in this contention either. IT is, however, very necessary to examine the provisions of the Act and the application thereof, besides the manner or applying any order passed thereunder, to the present suit. This would enable the determination and coming to a decision whether the present suit has been decided rightly or not. This being a legal side of the case could not be ignored by us as second appellate Court. Support for the above view also is found in the provisions of sec. 21 of the Act which debarred the jurisdiction of ordinary civil courts. While entering upon this discussion it is also presumed that the expression "civil Courts" employed in the Act includes the "revenue Court'" also wherever as in the present case, the functions of the "civil Courts" have been under any special enactment, as has been done by sec. 234 of the Rajasthan Tenancy Act, 1955 in suits like the present one, have been given over to the "revenue Courts". Sub-sec. (2) of this sec. 21 very clearly lays down, "nothing herein contained shall prevent a court which has stayed proceeding under the provisions of this Act from resuming them and passing such orders in regard to them as are not inconsistent with this Act". IT is under sec. 5 of the Act alone that a proceeding can be stayed by any court under the circumstances stated therein. As pointed out by the learned Addl. Commissioner Bikaner in his appellate order alluded to above sec. 5 envisages the staying of proceedings in a suit or proceeding on application by a "debtor" only when a plaint is presented to a court of civil jurisdiction against the debtor who is an agriculturist or when a petition is made for adjudication of such person as an insolvent at any time before the issues are settled, or in a suit before a court of small causes before evidence is recorded or in any insolvency proceeding before the order of adjudication is passed, or if any such plaint or petition has been presented to or made before or shall have been pending at the commencement of this Act within six months of such commencement. The application is also required by this very section to contain ; (a) statement that the debtor is an agriculturist; (b) the place where normally resides ; (c) the statement of all claims outstanding against him, including those referred to in sec. 4 and as nearly as may be ascertainable the names and the addresses of his creditors; (d) the statement of all his property including claims due to him together with specification of the value of such property and the place or places at which any such property is to be found and (e) such other particular as may be prescribed. Such a stay of the suit or proceeding is meant to enable the debtor to file an application before the Debt Relief Court u/s 6 of the Act, which has also to be in the same form and should contain the same particulars as required by sub sec. (2)of sec. 5 already described. The stay is to operate for a period not exceeding 90 days. Vide sub-sec. (3) of sec. 5 if the debtor fails to within the period specified in the order made under sub sec. (1) the court is free to resume the suit or proceeding and the debtor is debarred not only from applying again for the stay of the same but also from filing of an application under sub-sec. (1) of sec. 6 or the Act. Vide sub-sec. (1) of sec. 21 also of the Act, subject to the provision of sec. 17 to 19 thereof which deal with the order passed in revision or review of an order passed by a Debt Relief Court, the jurisdiction of the Civil Courts is barred only in respect of (a) any matter pending before a Debt Relief Court; (b) the claim for any debt which has been discharged or deemed to have been discharged u/s 8 of the Act (c) the recovery of any debt the recovery of which is included in any scheme under sub sec. (l) of sec. 11 for the time being in force and any order of a Debt Relief Court under sub-secs. (2) and (3) of that section or u/s 20; and any order of a Collector u/s 13. Sec. 8 is the section which requires the creditors to file claims in reply to notice issued u/s 7 on the admission of an application preferred u/s 6 as well as to furnish true statement of all accounts in his possession or control, and failing the filing of the claim as well as the furnishing of the accounts, which authorises the Debt Relief Court to discharge the claims made by them. Sec. 11 (1) envisages the preparation of scheme of the repayment of the "debtor's debts". Sec. 11 (2) and (3) deal with the re-payment of debts by the transfer of the property which the debtor is willing to transfer and the conditions by the Debt Relief Court as well as the instalments etc. fixed thereby. Sec. 20 deals with payment of the court fee by creditors in proceedings under the Act. Vide sec. 13, the Collector is authorised to permit the transfer of an immovable property by a debtor in respect of whose debt a scheme has been prepared u/s 11 (1), if he is satisfied that such transfer will not defeat the claims of any creditor the payment of whose claims has been ordered by the scheme. The provisions of sec. 21 discussed in details will go to a show that the only section in the Act debarring the jurisdiction of the Civil Court does not debar the decision of any suit or proceeding even if stayed under the provisions of sec. 5 of the Act,by that civil court. The only restriction on the exercise or such powers is that the matter should not fall within cls. (a), (b), (c) and (d) of the sub-sec. (1) referred to above and that the order passed by it should not be inconsistent with the provisions of the Act. Under the circumstances, it should be in this back ground that it should be examined whether the learned Courts below had acted erroneously in deciding the amount of mortgage money only on the basis of the decision given by the Debt Relief Court on 7. 9. 1959. IT cannot also be lost sight of that the provisions of the Act will come into application only when the debtor is an agriculturist as defined by sec. 2 (b) of the Act. For the purposes of the application of the Act, the debt should also be what has been laid down by the definition given in sec. 2 (c) of the Act. Sec. 4 of the Act lays down as many as 11 claims in respect of which the provisions of the Act do not apply. The application of the Act will, therefore, have to be examined even with reference to this section. The exclusion of the jurisdiction of the civil courts, it is an established maxim of law, is not to be lightly inferred (Such an exclusion must be explicitly expressed or clearly implied. Even if jurisdiction is not excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or statutory tribunal has not acted in conformity with the fundamental principles of the judicial procedure. (See AIR 1940 P. C. 105 and AIR 1945 Lah. 233 ). Where the assumption or jurisdiction depends upon the facts that there is a "debt", it cannot be said that exclusive jurisdiction was conferred on the Debt Relief Court to determine whether liability amounted to "debt" at all. See AIR 1939 Cal. 238. The jurisdiction whether a debtor is an agriculturist or not vests exclusively in the Debt Relief Court is also nowhere provided expressly or even impliedly in the Act. Cl. (a) of sec. 21 (1) excludes the jurisdiction of the Civil Courts in respect of any matter pending before the Debt Relief Court, but it does no more. When the matter is not so pending, it can always be examined by the ordinary civil court having seizure of a suit whether the debtor is an agriculturist or not. The examination of all the provisions of the Act would confirm it. The scheme of motion under the Act starts with sec. 6 thereof. Any debtor who is an agriculturist may file an application before the Debt Relief Court having jurisdiction praying for the determination of his debts in the prescribed form. The succeeding sections upto sec. 11 only lay down how such an application shall be dealt with and disposed of and how shall such a debt be determined. Sec. 10 only excludes the operation of any enactment or any agreement between the parties about the allowing of compound interest or treating without an account the profits of mortgaged property to be interest on the mortgage money or specifying the mode of otherwise settling accounts or the closing of previous dealings or creating a new obligation, and invest the Debt Relief Court with vast powers subject to the restrictions laid down in the proviso to this section. Sec. 11 deals with scheme of repayment and transfer of debtor's property towards the same. Sec. 13 alone restricts the transfer by the debtor privately; the succeeding sections are again procedural ones. Sec. 21 dealing with jurisdiction has already been discussed in details above. None of these provisions debar the court before which the present suit was instituted, therefore, from examining whether the plaintiff respondents were agriculturists and whether the mortgage money required to be determined for the purpose of redemption fell into the definition of "debt" given under the Act. IT is also quite clear from the perusal of the order of the Debt Relief Court dated 7. 9. 1960 that the claim of the appellant was not discharged by it under sec. 8, nor was there any action for the preparation of any scheme for the re-payment thereof, nor the transfer of any property of the debtor was involved. The present suit was for the redemption of the mortgaged land on payment of such mortgage money as may be found due by the Court. The specific Issue No. 5 had been framed thereon. Nowhere is it available on the record that any evidence was recorded in this behalf or any opportunity afforded to the appellant to produce the same. This was not done despite the refusal of the staying of the proceedings on an application by the plaintiff-respondents. Nowhere has it been tried and found in the present case that the plaintiff respondents were agriculturists or the debt was one covered by the provisions of this Act. As already discussed so elaborately, the learned trial court was not debarred from enquiring into and deciding all these points so long as it did not contravene the provisions of the Act and it did not pass any order which was inconsistent with the provisions of the Act. The present is a case in which both the learned lower courts have committed an error of procedure affecting the decision on merits. First, they should have found out that the plaintiff respondents were debtors who were agriculturist and having found so alone in favour of the plaintiff-respondents, proceeded to decide that the provisions of the Act applied to the suit. Then alone could have arisen an occasion for deciding the Issue No. 5 in accordance with the provisions of the Act as well as to consider whether the mortgage money was to be fixed in accordance with the decision of the Debt Relief Court or on merits of the evidence produced by the parties. In any case, the evidence of the parties had to be recorded on the) Issue No. 5 before arriving at any conclusion in that behalf. In result, this appeal is accepted, the judgment and decree of both the learned Courts set aside and the case remanded to the learned trial court for enquiry and decision afresh in accordance with law, keeping in view the observations made above. .