The Judgment of the Court was delivered by
Shyamasundar, J.:— This Miscellaneous second appeal is by the plaintiff in C.S No. 68 of 1983 on the file of the Principal Munsiff, Puttur, who had earlier secured a decree at the hands of the Munsiff at Puttur, awarding to him a decree as prayed for after treating the defendant in the suit as not a debtor under the Karnataka Debt Relief Act (‘Act’ for short). The aggrieved defendant preferred an appeal to the Civil Judge, Puttur in R.A No. 26 of 1984 and succeeded in getting the Judgment and decree of the Munsiff, reversed, buttressed with a further direction to the Munsiff to dispose off the suit again in conformity with the directions made by the Civil Judge.
2. What the learned Civil Judge, did was to set-aside the Judgment and decree of the Munsiff and to remit the entire case back to him for disposal of the case on all the issues with a specific direction to the Munsiff to try and dispose of the issue relating to the status of the defendant as a ‘Debtor’ under the Act, as a preliminary issue.
3. It is seen from the order of the learned Civil Judge, that he had found fault with the learned Munsiff, in not trying the issue relating to the status of the defendant as a preliminary issue and disposing it off independently before the disposal of the suit, on its merits.
4. The Civil Judge, pointed out that the requirement of enquiring into the status of the defendant under the Act had to be mandatorily performed at the threshold itself, treating it as a preliminary issue as enjoined by the provisions of the Act. Any omission to do so, the learned Civil Judge, has held to be wholly venial and productive of an abortive result. Therefore, it is he set-aside the Judgment and decree of the Munsiff and ordered remit of the case as aforesaid.
5. The aggrieved plaintiff, who has preferred this appeal challenges the tenability of the view of the learned Civil Judge's treating the omission of the learned Munsiff in not disposing of the issue relating to the defendant's status as a ‘Debtor’ as a preliminary issue. It is pointed out that the defendant, himself had not demurred against the procedure adopted by the learned Munsiff, who had after the raising of an issue relating to the defendant's status had proceeded to dispose it off along with all the other issues, bearing on the merits of the dispute between the parties. Under these circumstances it is urged that there being no evidence of any prejudice having been caused to the defendant in the procedure adopted by the Munsiff, as aforesaid and even granting that it was erroneous; it had not resulted in any manifest injustice to any one and much-less to the defendant that the learned Civil Judge, ought not to have therefore seized upon this omission by the Munsiff, to non-suit the plaintiff and to send the matter to the trial Court once again for a fresh disposal.
6. I am to mention that the defendant, who was successful before the learned Civil Judge, has not chosen to evince any interest in this appeal. He has after service of notice remained absent at the hearing of the appeal, which clearly indicates that he was not very much concerned with the out come of this appeal. That circumstance - does not make any difference to the proceedings herein, which has got to be disposed of on the basis of the merits of the matter.
6A. It is seen from the Judgment of the learned Munsiff, that he had raised as many as five issues; with sixth issue being the general one as to the nature of the relief to be awarded. Amongst them, the second one was the issue bearing on the status of the defendant as a ‘debtor’ under the Act. Bearing upon these issues the parties, had admittedly led evidence. The plaintiff had examined himself and produced documents from Exhibits P-1 to P-5, as against which the defendant rested the contents by examining himself and produced no documents.
7. On a consideration of the totality of the evidence adduced by both sides, the learned Munsiff, proceeded to record findings on all the issues including issue No. 2 bearing on the defendant's status as a ‘debtor’ and held the defendant had not been proved to be a debtor, under any of the three Debt Relief Acts operating in the State viz., Act of 1966, 1970 and 1980. After such comprehensive assessment touching the defendant's status as a ‘debtor’ he considered inter alia the other issues framed by him and thereafter proceeded to pass a decree granting to the plaintiff the relief sought for by him. It is to such a Judgment and decree of the Munsiff, the defendant had taken exception to by preferring an appeal to the Civil Judge, had urged a ground therein which ultimately toppled the Judgment of the Munsiff, viz., of the failure by the Munsiff in not disposing of the issue relating to the defendant's status as a preliminary issue as enjoined under the provisions of the Act. The learned Civil Judge thought that in the light of the default committed by the learned Munsiff, as aforesaid it would not be necessary for him to deal with other aspects of the controversy between the parties and, therefore, it is, he thought it fit to reverse the Munsiff's findings on the question of the defendant's status as a ‘debtor’ without, however, saying anything on the merits of the residual findings and then sent the entire case back to the learned Munsiff for a fresh disposal after, of course, complying with the procedure laid down by law in the matter of disposing of the issue touching the status of the defendant as a ‘debtor’.
8. The short question for consideration herein is whether the view taken by the learned Civil Judge, that the default on the part of the Munsiff, in not disposing of the issue relating to the status of the defendant as a ‘debtor’ as a preliminary issue was so vulnerable as to vitiate the Judgment and decree recorded by the Munsiff on the merits of the suit. In this context I may say that there is, however, little gainsay in denying that the Karnataka Debt Relief Act, lays down that wherever an issue arises regards the status of the defendant as a ‘debtor’ that issue has to be treated as a preliminary issue and disposed off as such by the Court. The Act also places the burden on the plaintiff to prove that the defendant is not a Debtor. This undoubtedly is the mandate of the statute. There is again no denial or getting away from the fact that the Munsiff appeared to have completely over-looked the requirement of the law in not disposing of the issue relating to the defendant's status as a preliminary issue instead he had disposed it off along with all the other issues.
9. The point therefore is whether in the facts and circumstances of the case the Civil Judge, was right in taking the view that the failure by the Munsiff in not adhering the legislative mandate had led to the total vitiation of the Judgment and decree of the learned Munsiff in its entirety.
10. In challenging the correctness of the aforesaid view adopted by the learned Civil Judge, Mr. Ram Bhat, who appears in support of the appeal invites my attention to Section 99 C.P.C and has also in this connection relied on a few decisions that have a bearing on this point. Section 99 C.P.C reads:
“99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.-
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.”
It may be seen from the aforesaid provision that a decree is immune from attack before a Court of appeal unless by reason of an error, irregularity or defect from which the said decree is said to suffer had resulted in affecting the merits of the case or of the jurisdiction of the Court. In other words if by the omission committed by the trial Court the finding on the merits of the dispute between the parties is not affected or the jurisdiction of the Court itself remains untramelled, a Court of Appeal should not interfere with such a decree merely on the off-chance of the decree suffering from some error, defect, or irregularity. The object of the legislature made evident from Section 99 C.P.C clearly is to save the Judgment and decree of Courts from attacks based on mere technicalities not affecting either jurisdiction of the Courts or merits of the case. Bearing in mind imprimatur of the law as enjoined by Section 99 of the C.P.C it would be apposite to consider the point raised herein.
11. The learned Munsiff on a consideration of the evidence led by both sides has come to the conclusion that the defendant was not a debtor under law as his income exceeded the statutory limit. The only omission with which he could be charged is of not recording an independent finding on this issue at the very beginning and before he had launched on a consideration of all the other issues. No doubt the lapse on the part of the Munsiff is glaring one it may in one sense be said to be unforgivable but then looked at from the context of its impact on the proceedings as a whole and vis-a-vis the predicament of the litigant who had received a Judgment after an arduous trial only to be sent back to the trial Court to relieve the ordeal once-again, it appears to be manifestly unjust to call upon litigants to go-through the mill once-again particularly when nobody had made a grievance of it, even as the case was under progress before the learned Munsiff. It was undoubtedly open to the defendant to have immediately taken exception to the procedure followed by the Munsiff, in which event it could have been corrected by that Court itself. Instead, he has laid by all these years and after the matter reached the Civil Judge, had raised this objection and got away with it.
12. It seems to me to allow this kind of free-wheeling in the conduct of litigation is to pay a premium to hyper technicalities on which the law frowns and indeed scorns as well. But, then, it is not necessary to decide this matter merely on apriori grounds since the view I take is also supported by a decision of the Supreme Court and two other decisions of our Court. In Kiran Singh v. Chaman Paswan . AIR 1954 SC 340. it has been pointed out that where a case has been tried by a Court on merits and Judgment rendered it is not liable to be reversed purely on technical grounds, unless it had resulted in failure of justice and that the policy of the legislature has always been to treat objections to jurisdiction both terriotorial and pecuniary as technical and not open to consideration by an Appellate Court unless there is prejudice on merits.
13. In the instant case, there is no question of the Court's jurisdiction being affected by the procedure adopted by the Munsiff, either in disposing of the issue as a preliminary one or otherwise. The Munsiff in any event never lost jurisdiction over the dispute and consequently there could be very little criticism of the error he committed although as I have pointed out earlier he did commit an error. The decision in Kiran Singh's case has been followed by a Bench of the High Court of Mysore in Omprakash Dhawan v. Santhosh Kumari . AIR 1965 Mysore 110.. In a much later decision His Lordship Mr. Justice Venkataswami, (as His Lordship then was) while dwelling on almost an identical controversy touching the omission by the trial Court in not disposing of an issue as a preliminary issue made the following enunciation in Vasudeva Rao v. Gopinath Holla . 1974 2 KLJ 447. as under:
“The parties, without specific demurrer by a tenant in this behalf had gone through the trial of the case, the procedure followed by the Court in trying the case on all issues including the one relating to jurisdiction and decreeing eviction cannot be found fault with.”
With respect I concur. Therefore, while it is true that the requirement of law has to be - complied with, but then the question is always of the consequences of failure to comply with that requirement. There may be cases in which such failure is attended by total annulment of the proceedings, as well as of the resulting order. But it is not invariably so in all cases. It seems to me that in this case by the fact that the Munsiff who had recorded a finding on the issue relating to the status of the defendant as a ‘Debtor’ had not tried and disposed it off as a preliminary issue although, as I have repeatedly pointed out that there was undoubtedly a transgression of the procedure enjoined by law, however the same, cannot be treated as being so venial as to result on total annihilation of the proceedings before the Munsiff and of the decree he had passed at the end thereof. It would be wholly inappropriate to hold so and therefore, it is I must set aside the Judgment of the learned Civil Judge, and direct him to dispose of the appeal on its merits.
14. In the result, therefore, this appeal succeeds and is allowed. The Judgment of the learned Civil Judge dated 24-9-1985 made in R.A No. 26 of 1984 is hereby set aside. The appeal is remitted back to the Civil Judge, for disposal on merits and on all the points arising for consideration. On remit of the case, the Court will issue notices to the parties and thereafter dispose of the appeal as expeditiously as possible. No costs.