SANABHAI NATHABHAI Vs. GORDHANDAS

JUDGEMENT

(1.) This is a civil revision application of the original defendant in civil suit No. 83 of 1943 filed in the Court of the Joint Civil Judge (Junior Division) at Nadiad. The plaintiff filed the suit on the allegation that an ostensible sale deed for Rs. 9,000 executed by him on April 6, 1942, was really a mortgage. He alleged that he was paid only Rs. 3,000 in cash and Rs, 5,000 had been credited towards past dues. He disputed his liability for the amount mentioned in the deed. The prayers were: (1) to declare that for the reasons stated above, the fields mentioned in paragraph 1 of the plaint had been mortgaged by the plaintiff to the defendant and for which the defendant had obtained a document on April 6 in the form of a sale, but that the same was in reality a mortgage; and (2) to take an account of the mortgage and the produce of the fields, since the said fields were mortgaged on April 6, 1942, under the Dekkhan Agriculturists Relief Act, 1879, and ascertain the amount payable by the plaintiff to the defendant. There were prayers for further and other reliefs, and for costs.

(2.) An objection was raised to the jurisdiction of the Court. It was decided against the defendant. The defendant filed this civil revision application which first came before Mr. Justice Weston. Chunilal Kevalram V/s. Ramchandra Yesaji (1941) 44 Bom. L.R. 278, Harendra Shankar Vs. Khiali Ram [1940] All. 762, and Babaji V/s. Hari (1891) I.L.R. 16 Bom. 351 were pointed out to the learned Judge and it was thought that there was some conflict of views in these decisions. The learned Judge, therefore, instead of disposing of the matter, referred it to a bench. When the matter came before us on Thursday last, the question whether Babaji V/s. Hari was rightly decided or not was directly put for our consideration. In view of that contention, it was thought that the application should be heard by a bench of three Judges, and the matter has thus come before us today.

(3.) The argument urged on behalf of the applicant is that under Section 15D of the Dekkhan, Agriculturists Relief Act, the duty of the Court is to take an account and pass a decree declaring that amount. Thereafter, if the plaintiff applied and the Court granted the application, the suit might be converted into a suit for redemption. Similarly, if the time for payment had passed and the mortgagee applied for foreclosure or sale and the Court acceded to that request, the suit might be converted into a suit for foreclosure or sale. It was, therefore, argued that this is not a suit for accounts within the meaning of Section 7(4) (f) of the Court-fees Act. It was, therefore, contended that the suit not being one for accounts, the Civil Judge (Junior Division) had no jurisdiction to try the suit as the amount claimed under the written document was Rs. 9,000. It was contended in the alternative that if this was a suit for a declaration, it would fall under sell. 2, Art. 17(6), or (3) of the Court-fees Act as a suit either of a peculiar nature which was not covered by any specific article, or a suit in which a declaration was asked. In this connection strong reliance was placed on the concluding words of Section 15D of the Dekkhan Agriculturists Relief Act. It was argued that in Babaji V/s. Hari it was held that when the amount due under the deed was over Rs. 5,000 the only Court to try the suit was the Court of the First Class Subordinate Judge. It was pointed out that if on taking accounts a party was dissatisfied, he had the right to go-to the. Court of the Civil Judge (Senior Division) and file a substantive suit for redemption or sale as the case may be, and, in that event, all the time and money spent in proceeding with the suit filed in the Court of the Civil Judge (Junior Division) would be wasted.