Ranjeet Singh v. Harji — 1990 DIGILAW 464 (MP)

JUDGMENT D.M. Dharmadhikari, J. -- 1. This is a second appeal by the plaintiff under section 100 of the Code of Civil Procedure, against the judgment and decree of the two Courts below, dismissing the suit, holding that the Civil Courts jurisdiction is barred by the provisions of the M.P. Anusuchit Jati Tatha Anusuchit Jan Jati Rini Sahayata Adhiniyam, ]967 (hereinafter referred to as 'the Adhiniyam'). 2. The necessary facts are as under. Respondent No.1 Harji, claiming to be a member of the scheduled caste filed two applications on 27.2.1979 and 20.6.1973 to the Debt Relief Court, Sehore alleging that his agricultural land measuring 5.21 acres, village Konazir, tahsil Sehore was mortgaged on 20.6.1973 with the plaintiff as creditor, for a sum of Rs. 500/-, for a period of eight years and although the said loan stands satisfied from the profits derived by the creditor by cultivating that land, the land under mortgage was not returned to the debtor. The Debt Relief Court by its order passed on 24.10.1979 held that the so called document of mortgage dated 20.6.1973 was in fact an agreement of sale under which possession was delivered to the plaintiff. Hence the provisions contained in the Adhiniyam were not attracted and the debtor was not entitled to any relief from that Court. Respondent No.1 challenged the order of the Debt Relief Court in a revision before the Collector, under section 22 of the Act. The Collector by order dated 18.7.1980 reversed the order of the Debt Relief Court on a finding that although the document dated 20.6.1973 was termed as an agreement of sale, but there was evidence on record to hold that it was merely executed as a security for loan. The Collector, therefore held that the debt stands discharged under the provisions of the Adhiniyam. Consequently, the Collector issued a direction that land transferred to the creditor should be returned to respondent No.1 who was the debtor. By the present suit giving rise to the present appeal, the order passed by the Collector in proceedings under section 22 of the Adhiniyam has been challenged on grounds inter alia that the provisions of the Adhiniyam were not at all attracted to the transaction or transfer in question between the parties and the order of the Collector, therefore, was without jurisdiction, null and void. The respondent/defendants contested the suit taking a plea that the land was transferred only as a security for the loan advanced and there was no agreement of sale. The defendants also raised a plea of exclusive jurisdiction of the Debt Relief Court and that of the revisional authority exercising powers under the Adhiniyam and supported the order passed by the Collector. 3. On the pleadings of the parties issues were framed and issue No.6 was tried as a preliminary issue on the question of jurisdiction of the civil Court to entertain the suit. The trial Court placing reliance on the following decisions held that the suit was barred:- (1) Vallabhdas and others v. Sikanya and others 1972 JLJ 780 = AIR 1973 MP 116 , (2) Chhingaram Ramlal v. Sunderlal Chhotelal Rathor 1981 JLJ 320 = 1981 MPLJ 188 , (3) Chatur Singh v. Bhiva Hagriya 1979 MPLJ-SN 10 and (4) Kuru v. Sadashiv 1970 MPLJ SN 40. 4. Having considered the above decisions I find that none of them directly deals with the question of jurisdiction of the civil Court as is arising in the present appeal before me. In the case of Chhingaram (supra) decided by H.G. Mishra-J., the suit was held barred only on the ground that the plaintiff had no subsisting right which could be enforced in civil suit and the decision of the Debt Relief Court under section 8(4) of the Adhiniyam could not have been adjudicated upon by the civil Court. 5. The first appeal Court also by its judgment under appeal placed reliance on the aforesaid decisions and came to the conclusion that the civil Court's jurisdiction was barred by the provisions of section 7 and section 26 of the Adhiniyam. Learned counsel appearing for the plaintiff assailed the above order on the ground that in deciding the question of jurisdiction of the civil Court the Courts below totally ignored the nature of the suit as reflected from the pleadings in the plaint and on misconstruction of the scheme and provisions of the Act came to an erroneous conclusion of non-maintainability of the suit in the civil Court. The counsel for the appellant argued that there is no express bar of civil suit of the nature filed by the plaintiff and there also Was no implied bar which can be inferred from the provisions. The counsel for the appellant argued that there is no express bar of civil suit of the nature filed by the plaintiff and there also Was no implied bar which can be inferred from the provisions. Placing reliance on a decision in the case of Secy. of State v. Mask & Co. AIR 1940 PC 105 and State of Tamil Nadu v. Ramalinga Samigal Madam AIR 1986 SC 794 , the counsel for the appellant submitted that on examination of the provisions of the Adhiniyam, it could be seen that the revisional authority under the Adhiniyam i.e. the Collector illegally assumed jurisdiction in the case by granting relief on the plea of existence of a 'subsisting debt' when in fact the application filed by the alleged debtor was incompetent before the Debt Relief Court, hopelessly barred by time and the procedure adopted by the Collector was not in accordance with the provisions of the Adhiniyam. According to the learned counsel, the civil suit was maintainable before the civil Court on the ground that the provisions of the Act have not been complied with and the decision rendered by the Collector was invalid in law. 6. The provisions of section 9 of the Code of Civil Procedure, declares that civil Court "shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred". "It is a settled principle that the exclusion of the jurisdiction of the civil Court is not to be readily inferred, but the exclusion of the jurisdiction of the civil Court must be made by the statutory provisions which expressly provide or which necessarily and inevitably lead to that inference. In other words, the jurisdiction of the civil Court can be excluded by statutory provisions which are either express in that behalf or which irresistibly lead to that inference". (See Ram Swamp and others v. Shikar Chand and another AIR 1966 SC 893 ) "In some cases such exclusion of jurisdiction of civil Courts may be inferred where the statutes give finality to the order of the Tribunal on which it confers jurisdiction and provides for adequate remedy to do what the Courts would normally do in such a proceeding before it. Even where statutes give finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the Tribunal has not acted in conformity with the fundamental principle of judicial procedure. The word 'jurisdiction' has both narrow and wider meaning. In the sense of former, it means the authority to embark upon an enquiry, in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the Tribunal is in non-compliance with the provisions of the Act". 7. Accordingly, "the determination by a Tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act and, therefore, in excess of its jurisdiction. Where a Tribunal acts without jurisdiction, its decision is a nullity that is the wider sense in which the word 'jurisdiction' is used. But there may be cases where although the Tribunal had jurisdiction to enter into enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. There may be cases where it made a decision which it had no power to make or it may have in perfectly good faith misconstrued the provisions giving it power to act". (See Union of India v. Tarachand Gupta and Bros. AIR 1971 SC 1558 ). To the same effect are the observations of the Privy Council in the case of Secretary of State v. Mask and Co. (supra), relied on by the counsel for the appellant. 8. Learned counsel for the respondents supported the orders of the Courts below on the reasonings contained in the decisions referred to therein. Applying the above dictum of the Supreme Court in the case of Tarachand Gupta (supra) it has to be examined whether the suit in the present form is either expressly or impliedly barred by the provisions of the Adhiniyam. For the above purpose, relevant provisions of the Adhiniyam will have to be examined which have been high lighted by the counsel for the appellant in his argument. Before this is done, it has to be kept in mind that for determining the jurisdiction of the civil Court, what is material, is the pleadings in the plaint and not what ultimately is decided. Before this is done, it has to be kept in mind that for determining the jurisdiction of the civil Court, what is material, is the pleadings in the plaint and not what ultimately is decided. (See Vasudev Gopalkrishna Tambwekar v. Board of Liquidators, Happy Home Co-operative housing Society Ltd. AIR 1967 SC 369 and Smt. Bismillah v. Janeshwar Prasad and others AIR 1990 SC 540 ). In the case of Smt. Bismillah (supra), relied on behalf of the appellant, same principle of law is reiterated in the following words:- "It is true that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit. However, in order to determine the precise nature of the section, the pleadings should be taken as a whole.... The trial point is not the stray or loose expression which abound in inartistically drafted plaints, but the real substance of the case gathered by construing pleadings as a whole. It is said "parties do not have the farsight of prophets and their lawyers the draftsmanship of a chambers". 9. Now I have to examine the pleading in the case. The substance of the case is contained in paragraph 5 where the order of the Collector passed under the Adhiniyam is said to be without jurisdiction on the ground that the provisions of the Adhiniyam will have no application to the transaction between the parties and there was no transaction of loan between the parties, but a transaction of sale. It is also stated in the plaint that there was no debt subsisting under the Adhiniyam. The question, therefore, is whether the suit of the present nature is maintainable before the civil Court and whether it is expressly or impliedly barred by the provisions of the Adhiniyam. 10. Learned counsel for the appellant took pains to take the Court through various provisions of the Adhiniyam to explain its scheme. The expression 'appointed date' has been defined under section 2(1) to mean in regard to members of Scheduled Castes and date appointed under sub-section (4) of that section. In regard to members of scheduled castes the appointed date is 16.8.1973, as per the notification. The expression 'appointed date' has been defined under section 2(1) to mean in regard to members of Scheduled Castes and date appointed under sub-section (4) of that section. In regard to members of scheduled castes the appointed date is 16.8.1973, as per the notification. Sub-section (4) of section 2 defines 'Debt' to include all liabilities owing to a creditor in cash or in hand, secured or unsecured, payable under a decree or order of a civil Court or otherwise and subsisting on the appointed date whether due or not due. 'Secured Debt' under sub-section' (10) of section 2 means a debt subsisting on the appointed date, whether due or not due, and secured by mortgage of or charge on the immovable property or by pawn or pledge of movable property to the debtor. Under section 3(a) the Act has been declared as not applicable to debts which are not subsisting on the appointed date. Section 7 is relevant for our purpose and on which the Court has placed reliance to hold that civil Court's jurisdiction is barred. It is reproduced hereunder:- "7. Consequences which shall ensue on coming into force of the Act. (1) As from the appointed date, the following consequences shall ensue, namely: (i) No civil Court having jurisdiction shall entertain any suit or proceeding against a debtor for the recovery of his debt". Section 8 of the Adhiniyam contains procedure under which the creditor can approach the Debt Relief Court for recovery of the loan from the debtor. Under proviso to sub-section (2) of section 8, the period of limitation prescribed for creditor to approach the Debt Relief Court is 60 days from the date notified under sub-section (4) of section 1. In the present case the appointed date was 16.8.1973 and there was no application by the creditor to the Debt Relief Court within the prescribed time. An application by the debtor is contemplated only under sub-section (3) of section 8 and it has to be filed within 60 days from the appointed date under section 1(4) of the Act. 11. As has been mentioned above, the appointed date was 16.8.1973 for scheduled castes in the area in questions and the applications by the debtor were filed on 26.6.1979 and 27.2.1979, which are much beyond the prescribed period of limitation. 11. As has been mentioned above, the appointed date was 16.8.1973 for scheduled castes in the area in questions and the applications by the debtor were filed on 26.6.1979 and 27.2.1979, which are much beyond the prescribed period of limitation. The provisions of section 8(3) require that an application being filed by the debtor to the Debt Relief Court within the time prescribed, the Court is required to issue a notice in the prescribed form to the creditor informing him that in case the creditor fails to comply with the provisions of the Adhiniyam within thirty days from the date of notice, all debts due to him from the said debtor shall stand discharged. Section 8(3) with proviso may be quoted for ready reference, as under:- "8. Application by credit to Debt Relief Court -- (1) As ........ (2) .............. (3) Notwithstanding the provisions of sub-sections (1) and (2), a debtor may apply to the Debt Relief Court within whose jurisdiction he owns land, ordinarily resides or earns his livelihood within sixty days of the establishment of the said Court, for determination of his debts giving out the names and full address of all his creditors and on receipt of such application, the Court shall issue notice in the prescribed form to each creditor named therein that in case he failed to submit an application as required by sub-section (1), in respect of the said debtor within thirty days from the date of the notice, all debts due to him from the said debtor shall stand discharged: Provided that in any area where a Debt Relief Court was established before the date appointed under sub-section (4) of section 1, the period of sixty days for filing an application by a debtor belonging to scheduled caste shall be counted from the aforesaid date. Under sub-section (4), failure of lodging a claim by the creditor within the time prescribed in sub-section (2) or (3) shall result in discharge of the debt unless within the further period of thirty days such an application is made soon after expiry of sixty days. Under section 14-A, inserted by amendment in the year 1984, the Debt Relief Court has been conferred powers to direct restoration of any property movable or immovable which is subject matter of the Joan transaction between the parties. Under section 14-A, inserted by amendment in the year 1984, the Debt Relief Court has been conferred powers to direct restoration of any property movable or immovable which is subject matter of the Joan transaction between the parties. In section 22, there is a revision provided against the order of Debt Relief Court, to the Collector only on errors of jurisdiction and law and subject to the orders passed in revision, the orders of the Debt Relief Court are declared to be final. Section 26 bars jurisdiction of the civil Court on certain matters, which is also relevant for the purpose of this case and is reproduced hereunder: "26. Bar against jurisdiction of Courts in certain matters.... (1) Subject to the provisions of section 21 the jurisdiction of the civil Court and the Courts having jurisdiction under the Provincial Insolvency Act, 1920 (V of 1920) shall be barred in respect of -- (a) any matter pending before the Debt Relief Court. (b) the claim for any debt which has been discharged or deemed to have been discharged under this Act. (c) any debt the recovery of which is included in any scheme under sub-section (1) of section 13 for the time being in force and any order of the Debt Relief Court under sub-sections (2) and (4) of that section and under section 23; and (d) any order of the Collector under section 18". 12. Having thus, examined the scheme of the Act, it may be seen that the Adhiniyam is applicable only to the' subsisting debt' on 'the appointed date' and the duty is enjoined on the creditor to approach the Debt Relief Court for recovery of the debt within the time prescribed. The debtor has also been allowed to approach the Debt Relief Court, but there upon the creditor has to be noticed by the Debt Relief Court for filing the claim. The counsel for the appellant relying on the above referred provisions, contended that there did not exist an y 'subsisting debt' on the 'appointed date' within the meaning of the Adhiniyam. The application made by the debtor was patently barred by time and the procedure indicated in section 8(3) was not at all complied with, in so far as, there was no notice given to the creditor to file any claim. The Debt Relief Court has dismissed the application of the debtor. The application made by the debtor was patently barred by time and the procedure indicated in section 8(3) was not at all complied with, in so far as, there was no notice given to the creditor to file any claim. The Debt Relief Court has dismissed the application of the debtor. The Collector in the revision totally ignored the provisions of the Adhiniyam including those concerning the limitation and straightway passed an order holding that the debt stood discharged and the property alleged to have been mortgaged was liable to he returned to the debtor without at all complying with the provisions of section 8(3) of the Adhiniyam. The order of the Collector in his revisional jurisdiction, therefore, was according to the counsel for the appellant, totally in excess of his jurisdiction and in fragrant breach of the provisions of the Adhiniyam. The suit of the above nature, in the submission of the counsel for the appellant cannot be held either expressly or impliedly barred by any provision of the Adhiniyam. 13. Having examined the relevant provisions and the scheme of the Adhiniyam, now it has to be seen whether the suit of the above nature is expressly barred. Section 7(1)(i) quoted above bars the jurisdiction of the civil Court in respect of any suit or claim against a debtor for the recovery of his debt. The above provision cannot bar the present suit which is not for recovery of any debt but is a suit challenging the order of the Collector on the ground that it is void and nullity being an order wholly out side the provisions of the Adhiniyam. Section 22 provides for a remedy of revision to the Collector against the order of the Debt Relief Court and subject to the order of the Collector in revision, the order of the Debt Relief Court is stated to be final. The question before me is what is the meaning and effect of this finality attached to the order of the Debt Relief Court, and whether, there being a finality to the order of the Debt Relief Court, subject to the order passed in revision by the Collector, a civil suit can be said to be barred? The question before me is what is the meaning and effect of this finality attached to the order of the Debt Relief Court, and whether, there being a finality to the order of the Debt Relief Court, subject to the order passed in revision by the Collector, a civil suit can be said to be barred? In the case of Dhulabhai v. State of M.P. AIR 1969 SC 78 and others, the Supreme Court held as under:- "Where the statute gives finality to the orders of the special Tribunals the civil Courts" jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure". From the above observations it may be seen that a finality if attached to the order of a special Tribunal will bar a suit only if there is adequate remedy to do what the civil Court could normally do in a suit, but in such cases as one in hand, where the challenge to orders of the Special Tribunal under special enactment is made on the ground of non-compliance of the provisions of law or procedure, the remedy of civil Court cannot be held to be barred. 14. Section 26 of the Adhiniyam bars the jurisdiction of the civil Court on certain matters enumerated therein. It may be seen that the present suit is not in respect of any matter pending before the Debt Relief Court, nor it is a claim for any debt which has been discharged or deemed to have been discharged. It is also not in respect of any debt, the recovery of which is included in the scheme under section 15(1) of the Adhiniyam or any order passed by the Debt Relief Court under sub-sections (2) and (4) of section 15 or section 23 of the Adhiniyam. It is also not in respect of any order of the Collector passed under section 18 in the course of recovery of any sum under section 17. None of the provisions of section 26, therefore, expressly bars the present suit. It is also not in respect of any order of the Collector passed under section 18 in the course of recovery of any sum under section 17. None of the provisions of section 26, therefore, expressly bars the present suit. It would thus, be seen that neither section 7(1)(i) nor section 22 nor section 26 expressly bar the suit. 15. The next question is whether the suit can be held to be impliedly barred. As held by the above stated law on the subject, bar of civil Court has not be readily inferred. Examining the entire scheme of the Adhiniyam it may be seen that it creates a forum for the creditor and the debtor for recovery of loan or its discharge and the return of any property involved in a loan transaction, but only in respect of a 'subsisting debt' and within the time prescribed in the Adhiniyam. Any resort to the civil Court, therefore, for recovery of debt or any relief under the Adhiniyam is barred in a civil suit if the same relief can be obtained by approaching the Debt Relief Court or the revisional authority prescribed thereunder. But, the civil Courts' jurisdiction to examine whether the orders passed by the authorities under the Adhiniyam, have been passed within their jurisdiction and in accordance with the provisions of that statute under which those authorities are created, cannot be barred even by implication. The Courts below held that the only remedy of the plaintiff against the order of the Collector was to approach in writ petition to the High Court. This reasoning and approach is totally erroneous. The Courts below failed to see that if a writ petition could lie to the High Court on the ground that the authorities under the Adhiniyam transgressed their powers and violated the procedure prescribed under the Adhmiyam, nothing prevented the parties from challenging the order, on the same grounds in a duly constituted suit. The civil Court may go into the defendant's plea that there was in fact only a loan transaction between the parties and the alleged agreement of sale was not real but it was only executed to secure the loan advanced. The civil Court may go into the defendant's plea that there was in fact only a loan transaction between the parties and the alleged agreement of sale was not real but it was only executed to secure the loan advanced. The cause of action as pleaded in the plaint is that the Collector illegally assumed jurisdiction under the Adhiniyam and passed the order which he could not have passed in view of the express provisions of the Adhiniyam and the bar of limitation prescribed thereunder. As I have stated above, at the stage of entertaining the suit, only the plaint allegations are to be looked into and not what would be the ultimate result of the suit. In my considered opinion, therefore, and on the basis of the decisions quoted above, the impugned orders of the two Courts below dismissing the suit as beyond the jurisdiction bf the civil Court are not liable to be sustained. 16. Consequently, the appeal succeeds and is hereby allowed. The impugned orders of the Courts below are hereby set aside. Since the case was disposed of on a preliminary issue regarding jurisdiction of the civil Court, and as I have held that civil Court has jurisdiction to try the suit, the case is remanded to the trial Court for proceeding ahead with the trial of the suit on other issues arising therein, in accordance with law. In the circumstances of the case, I leave the parties to bear their own costs.