BRIJ BEHARI LAL Vs. UDAI NATH SHAH

JUDGEMENT

(1.) This is an application in revision under Section 115, Civil P.C., against an order passed by the learned Civil Judge of Naini Tal refusing to dismiss a suit pending in his Court as against the applicant. The applicant here is one of three defendants in the suit pending in the Court of the learned Civil Judge at Naini Tal. It appears that he has made an application under Section 4, Encumbered Estates Act, and the Collector has issued an order under Section 6 of the Act. The Collector's order is dated 29 October 1936, while the suit pending in the lower Court, which is sought to be dismissed as against the applicant, was instituted in June 1937. In these circumstances, the applicant moved the lower Court Under Section 7, Encumbered Estates Act, to dismiss the suit as against him. His prayer has been rejected and he has come up in revision from that order. In rejecting the applicant's prayer for the dismissal of the suit as against him, the learned Civil Judge has relied upon Section 1, Sub-section (2), Encumbered Estates Act, which lays down that the Act extends to the whole of the United Provinces of Agra and Oudh, except the districts of Garhwal and Almora, the Naini Tal tahsil of the Naini Tal district, and the tract of Jaunsar Bawar of the Dehra Dun district.

(2.) The learned Civil Judge has taken this sub-section to mean that the operation of the Encumbered Estates Act does not extend to the excluded areas, and hence Section 7 of the Act cannot apply to those areas. It wag argued on behalf of the applicant that Section 7 of the Act refers generally to the United Provinces without mentioning any excluded area, and hence its operation must be deemed to extend to the whole of the United Provinces including the areas excluded by Sub-section (2) of Section 1 of the Act. Now the relevant provision of Section 7 runs as follows: No fresh suit or other proceedings other than an appeal or revision against a decree or order, or a process for ejectment for arrears of rent shall, except as hereinafter provided, be instituted in any Civil or Revenue Court in the United Provinces in respect of any debts incurred before the passing of the said order.

(3.) It is upon this provision of Section 7 that the applicant relies in this case, and his contention is that the words "any Civil or Revenue Court in the United Provinces" are general and they must be deemed to include any Civil or Revenue Court even in the areas excluded by Sub-section (2) of Section 1 of the Act. The learned Civil Judge attached considerable weight to this argument, but he could not reconcile this general provision with Sub-section (2) of Section 1 of the Act, and he consequently rejected the applicants prayer for the dismissal of the suit as against him. The simple question therefore is whether it is possible, having regard to the scheme and purpose of the Act, to reconcile the apparent conflict between the general provisions contained in Section 7 and the exception made in Sub- section (2) of Section 1 of the Act. Having fully considered the scheme and purpose of the Act and all the relevant provisions, I have arrived at the conclusion that the contention made on behalf of the applicant is sound and ought to prevail. The meaning of the exception laid down in Sub-section (2) of Section 1 of the Act, to my mind, is only this, that encumbered estates which are situated within the excluded areas cannot derive any benefit from the provisions of the Act.