Eswaramoorthy Velar v. Parvathathammal

Judgment

Defendant in O.S No. 394 of 1993 on the file of the District Munsifs Court at Srivaikundam, is the appellant.

2. Suit filed by the plaintiff was one for redemption of Ex.A 1 mortgage dated 26-8-1975. Plaintiff borrowed an amount Rs. 4,000/- and executed an othi and possession was also handed over io the defendant. According to the plaintiff, the othi period is over on 26-5-1990. She being an agriculturist is entitled to the benefit of Act 40 of 1979 as per provisions of that Act. Since the property is in the possession of the defendant for more than ten years, the plaintiff is on titled to redeem mortgage without payment. The plaintiff made a demand on 10.7.1992 which was received by the defendant on 13. 7.1992 The defendant did not sent any reply nor he surrendered the property to her. The suit was therefore laid to recover property from the defendant free from encumbrances.

3. The appellant contended that the suit is not maintainable in law and only an application before the local Tahsildar is to be made for redemption and the Civil Suit is not maintainable. He also disputed the allegation that the plaintiff is an agriculturist, entitled to the benefit of Act 40 of 1979.

4. The trial Court as per judgment dated 31 -10-1995, passed” a decree in terms of the plaint except the relief for mesne profits. The trial court found that the plaintiff is entitled to the benefit of Act 40 of 1979 and the defendant is in possession of the property for more than 10 years and consequently the mortgage stands discharged and the plaintiff is entitled to get possession of the property without any payment.

5. The matter was taken in appeal as A.S No. 194 of 1995 on the file of the Principal District Judge's Court at Tuticorin. The lower appellate court also confirmed the decision and dismissed the appeal.

6. In this Second Appeal, the appellant challenges the concurrent finding on the following substantial questions of law:

1. Whether the provisions of Act 13/1980 and 50 of 1982 will prevail over Act 40 of 1979?

2. Whether the Civil Court has jurisdiction over the subject matter?

7. The fact that the plaintiff is an agriculturist, entitled to the benefit of Act 40 of 1979, Act 13 of 1980 or Act 50 1982 is concurrently found by the Court below. In fact, the counsel for the appellant did not seriously contend those findings. Even on merits, I do not find any ground to interfere with those findings of fact whereby the courts below have found that the income of plaintiff is below Rs. 3,000/- only per annum and she is an agriculturist. In fact, the appellant during his examination has said that, income of plaintiff is only about Rs. 3,000/- per annum. The finding that the plaintiff is entitled to the benefit of those enactments are, therefore, confirmed.

8. The main point urged by the learned counsel for the appellant was, the suit is not maintainable and the remedy of the plaintiff is only to move an application before the Tahsildar and get release of the property. A special machinery is provided under Act 13 of 1980 and the plaintiff will have to only invoke that jurisdiction. The argument is that when there is a Special Tribunal to invoke the powers to release the property of agriculturists, the civil remedy is barred. Courts below were therefore not right in entertaining the suit.

9. Learned counsel for the respondent disputed the claim of the appellant and submitted that the same point was not urged before the courts below and at any rate there is no bar for entertaining a suit for redemption in any of these enactments. Counsel submitted that the suit is also not impliedly barred. Further argument of the learned counsel was that while granting a decree for redemption through the Civil Court, the appellant is not prejudiced in any way.

10. Heard the counsel on both sides.

11. Before considering the bar of jurisdiction, let us take the relevant provisions of Act 40 of 1979, Act 13 of 1980 and Act 50 of 1982. Under Act 40 of 1979, there is no provision for release of mortgage on an application filed before the Tahsildar. The same was in corporated under Act 13 of 1980 under Section 6 of that Act. As per the said provision, the debtors are made eligible to apply for release of the mortgaged property. There is also similar provision under Act 50 of 1982. Section 7 of that Act also makes a provision to get release of the mortgaged property if an application was made to the Tehsildar within whose jurisdiction the property is situated. It is also true that a remedy of appeal is also provided against the order of the Tahsildar both under Act 13 of 1980 and 50 of 1982. The question is, merely because a statutory Tribunal has been formed to get release of the property, can it be said the jurisdiction of the Civil Court is barred.

12. Section 9 of the Code of Civil Procedure says that the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

13. None of the enactments expressly barred the institution of a suit. The only question is, whether the suit is impliedly barred in view of the procedure given in those enactments.

14. The Tamil Nadu Debt Relief Act, 1982 was passed by the Legislature to give benefit to the indebted agriculturists. Merely because a summary remedy is provided before the Tribunal, the law does not say that the debtor cannot invoke the jurisdiction of Civil Court. Right of redemption is common law remedy. The Tamil Nadu Debt Relief Act, 1982 has not excluded the common law remedy. Apart from the same, if the indebted agriculturists have to get release of the property, the application will have to be made within a particular time. Even after the expiry of the period for making the application for redemption, the debtor will also be entitled to sue for redemption under the benefit of the Tamil Nadu Debt Relief Act, 1982. In such cases, the only disadvantage is, the debtor cannot invoke chief remedy by filing an application before the Tahsildar and get release of the property. The Tamil Nadu Debt Relief Act 1982 also does not say that only those persons who moved the Tahsildar are entitled to get the benefit of the Act. The suit is of a civil nature is also admitted.

15. In the decision in Most Rev. P.M.A Metropolitan v. Moran Mar Marthoma (1995 (4) 286). the Hon'ble Supreme Court considered, what is the suit of ‘Civil nature’. In paragraphs 28 and 29 of the judgment, their Lordships held thus:

“28. One of the basic principles of law is that every right has a remedy. Ubi Jus Ibi Remediem is the well-known maxim. Every civil suit is cognizable unless it is barred, “there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, how ever frivolous the claim, that the law confers no such right to sue” Ganga Bat v. Vijay Kumar. The expansive nature of the section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the section to such religious matters where right to property or office is involved irrespectively of whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the section by use of the word ‘shall’ and the expression “all suits of a civil nature” unless “expressly or impliedly barred”.

29. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of right. The word ‘shall’ makes it mandatory. No court can refuse to entertain a suit if it is of description mentioned in the section. That is amplified by use of expression “all suits of Civil nature”. The word ‘civil’ according to dictionary means “relating to the citizen as an individual: civil rights”. In Black's Law Dictionary, it is defined as “relating to private rights and remedies sought by civil actions as contrasted with criminal proceedings”. In law it is understood as an of criminal. Historically the two broad classifications were civil and criminal. Revenue, tax and company etc. were added to it later. But they too pertain to the larger family of ‘civil’. There is thus no doubt about the width of the word ‘civil’. Its width has been stretched further by using the word ‘nature’ along with it. That is even those suits are cognizable which are not only cine but are even of civil nature. In Article 133 of the Constitution an appeal lies to this Court against any judgment, decree or order in a “Civil proceeding”. This expression came up for consideration in S.A.L Narayan Row v. Ishwarlal Bhagwandas. The Constitution Bench held “a proceedings for relief against infringement of civil right of a person in a civil proceedings”. In Arbind Kumar Singh v. Nadn Kishore Prasad, it was held “to extend to all proceedings which directly affect civil rights”. The dictionay meaning of the word ‘proceedings’ is “the institution of a legal action, any step taken in a legal action”. In “Black's Law Dictionary” it is explained as:

“ In a general sense, the form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of law, including all possible stepu in an action form its commencement to the execution of judgment. Form also refers to administrative proceedings before agencies, tribunals, bureaus or the like.”

The word ‘nature’ has been defined as “the fundamental qualities of a person or thing; identity or essential character; sort; kind; character”. It is thus wider in context. The word civil nature is under than the word “civil proceeding'. The section would, therefore, be available in every case where the dispute has the characteristic of affecting one's rights which are not only civil but of civil nature.

(Emphasis supplied)

16. It is not the case of the appellant that the suit for redemption is not a civil nature. Regarding, exclusion of jurisdiction, the decision in Dhulabhalt v. State of M.P (AIR 1969 S.C 78) relied on by the appellant is itself an answer against him. Their Lordhsips enunciated various principles regarding exclusion of jurisdiction of Civil Court which read thus:

“The following principles regarding exclusion of jurisdiction of Civil Court may be laid down:—

(1) Where the statute gives a 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 provision 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.

(2) where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intodement becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remdies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultravires cannot be brought before Tribunals constituted under that Act. Even the High Court can not go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open, A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of a jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply: case law discussed.”

17. In S. Vanathan Muthuraja v. Ramalingam (1997) 6 S.C.C 143), in para 3 of the judgment, their Lordships considered this question in detail which read thus:

“Under Section 9, CPC, the Courts shall, subject to the provisions contained therein, have jurisdiction to try all suits of Civil nature excepting suits cognizance of which is either expressly or impliedly barred. When a legal right is infringed, a sint would lie unless there is a bar against entertainment of such civil suit and the civil courts would take cognizance of it. Therefore, the normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or necessary implication excluded. The rule or construction being that very presumption would be made in favour of the existence of a right and remedy in a democratic set up governed by rule of law and jurisdiction of the civil courts is claimed assumed. The exclusion would, therefore, normally be an exception. Courts generally construe the provisions strictly when jurisdiction of the civil courts is claimed to be excluded. However, in the development of civil adjudication of civil disputes, due to pendency of adjudication and abnormal delay at hierarchical stages, states intervene and provide alternative mode of resolution of civil disputes with less expensive but expeditious disposal. It is settled legal position that if a tribunal with limited jurisdiction cannot assume exclusive jurisdiction and decide for itself the dispute conclusively, in such a situation, it is the court that is required to decide whether the Tribunal with limited jurisdiction has correctly assumed jurisdiction and decided dispute within its limits. It is settled law that when jurisdiction is conferred on a tribunal, the courts examine whether the essential principles of jurisdiction have been followed and decided by the tribunals. It is equally-settled legal position that where a statute gives finality to the orders of they special tribunal, 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 a 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. Where there is express bar of jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary that the statute creates a special right or liability and provides remedy for the determination of the right or liability and further lays down that all questions about the said right or liability shall be determined by the tribunal so constituted and the question whether remedies are normally associated with the action in civil courts or prescribed by the statutes or not require examination. Therefore, each case requires examination whether the statute provides right and remedy and whether scheme of the Act is that the provides right and remedy and conclusive and thereby excludes the jurisdiction of the Civil Court in respect thereof. After the advent of independence, the land reforms was one of the policies of the Government abolishing feudal system of land tenures and conferment of the ryotwari patta on the tiller of the soil. Thereby, the land reform laws extinguish preexisting rights and creat new rights under the Act. The Act provides for the jurisdiction of the tribunals in matters relating thereto and hierarchy of appeals revisions are provided thereunder giving finality to the orders passed thereunder. Thereby, by necessary implication, the jurisdiction of the Civil Court to take cognizance of the suits of civil nature covered under the land reform laws stands excluded giving not only the finality to the decisions of the tribunal but also ensuring disposal of the matters by the tribunal and making the ryotwari patta granted to the tiller of the soil conclusive. Under the normal course of civil procedure, the jurisdiction for the trial of the civil suits, in relation” to the matters covered under the Acts, being time-consuming and tardy, and there being the lack of financial resources or otherwise incapacity to defend or want or knowledge of the parties as to their rights, energy-sapping civil suits with hierarchy of appeals are intended to be avoided. Obviously, therefore, the civil suits by necessary implication stand excluded unless the fundamental principles of procedure are followed by the tribunals constituted under the land reforms laws. In this case, the Act concerned extinguishes the preexisting right creates new rights under the Act and requires tribunals to enquire into the rival claims and a form of appeal has been provided against the order of the primary authority. Thereby the right and remedy made conclusive under the Act are given finality by the orders passed under the Act. Thereby, by necessary implication, the Jurisdiction of the Civil Court stands excluded.”

(Emphasis supplied)

18. In view of these decision, it cannot be said that the Civil Court's jurisdiction is barred. The right of redemption through court is not taken away under the Act. The Act provides additional remedy for indebted agriculturists. The agriculturist is also entitled to move the Tahsilder if he make the application in time and get release of the property. But, that by itself does not follow that he can get release of the property only by moving an application before the Tahsildar. It is an additional remedy given to the indebted agriculturists.

19. In the result, both the substantial questions of law raised in the Second Appeal are found against the appellant and consequently, the Second Appeal is dismissed. There will be no Order as to costs. Connected C.M.P is also dismissed RR/VCS.