TARABEN RAMANLAL MODI Vs. BAI KAMLA WD O JASHBHAI SHANKERBHAI
LAWS(GJH)-1979-10-9
HIGH COURT OF GUJARAT
Decided on October 01,1979

TARABEN RAMANLAL MODI Appellant
VERSUS
BAI KAMLA WD/O JASHBHAI SHANKERBHAI Respondents

JUDGEMENT

A.N.SURTI, N.H.BHATT, S.H.SHETH - (1.) This group of cases have been referred to the Full Bench for deciding the contour of jurisdiction of the Civil Court under sec. 11 of the Gujarat Rural Debtors Relief Act 1976 read with sec. 12 thereof. In Rana Mafatlal Gordhanbhai v. Mahendrabhai Babubhai 19 G.L.R. 529 Mr. Justice B. K. Mehta interpreted these sections and tried to resolve the conflict of jurisdiction between the Civil Court on one hand and the Debt Settlement Officer on the other hand by holding that the jurisdiction of the Civil Court is completely ousted and if any question under the said Act arises the Civil Court must stay the suit and direct the party to have the question decided by Debt Settlement Officer. After Mr. Justice B K. Mehta rendered that decision the same question arose before a Division Bench of this Court in Parshottam Ambavi v. Patel Hansraj Valji Bhalodia 20 G.L.R 7. The decision rendered by Mr. Justice B. K. Mehta was not shown to the Division Bench. The Division Bench therefore did not have the benefit of knowing his views. Upon the consideration of several provisions of the said Act the Division Bench decided that jurisdiction of the Civil Court was not completely ousted under sec. 11 read with sec. 12 and that the Civil Court had the jurisdiction to decide whether the provisions of this Act apply to a particular case pending before it or whether the judgment-debtor in execution proceedings is a debtor within the meaning of the said expression as defined in the said Act. Really speaking. there was no conflict as there cannot be any between the decision of Mr. Justice B. K. Mehta and the decision of the Division Bench. Since the Division Bench had taken a contrary view the decision of the learned single Judge was by necessary implication overruled. In case of conflict between the decision of the single Judge and the decision of a Division Bench it is the decision of the Division Bench alone which holds the field. Yet to Mr. Justice R. C. Mankad it was pointed out in some of the cases that there was a conflict between the decision of Mr. Justice B. K. Mehta and the decision of the Division Bench. The learned Judge felt that there was such a conflict and therefore he directed the cases placed before him to be referred to a larger Bench. It is under these circumstances that the question which has been examined by a Division Bench of this Court in Patel Parshottam Ambavis case (supra) has cropped up again and this Bench is required to re-examine it.
(2.) Before we proceed to analyse the relevant provisions of the Act in order to come to a correct conclusion it is necessary to refer to the decision of Mr. Justice B. K. Mehta in Mafatlal Gordhanbhais case (supra). The sole reason which appealed to the learned Judge was that there would be conflict of jurisdiction between the two authorities specified in sec. 11 and sec. 12 if it was held that the Civil Court had the jurisdiction to determine questions specified in sec. 11 of the said Act. In his view if it was held that the jurisdiction of the Civil Court to decide the questions which have been specified in sec. 11 was not ousted it would lead to patently absurd result. In order therefore to avoid the accrual of such a patently absurd result the learned Judge held that reading secs. II and 12 together the jurisdiction of the Civil Court was obviously excluded. The learned Judge has also considered the scheme of secs. 85 and 85A of the Bombay Tenancy and Agricultural Lands Act 1948 and compared it with the scheme which emerges from secs. 11 and 12 of the Gujarat Rural Debtors Relief Act 1976 On reading sec. 129 the learned Judge was impressed by the fact that the decision of the Debt Settlement Officer was made final and was not open to be called in question in any civil or revenue Court. He therefore held that as soon as the defendant raised the contention that he was a debtor within the meaning of that expression given in Gujarat Rural Debtors Relief Act 1976 the Civil Court must stay its hands and cannot proceed with the suit or the execution proceedings until the question raised by the defendant on the judgment-debtor was determined by the Debt Settlement Officer.
(3.) The reasons which weighed with the Division Bench in Parshottam Ambavis case (supra) were quite different. Several provisions of the Act were examined in that decision. It has been observed in that decision that in matters in respect of which jurisdiction has been conferred upon the Debt Settlement Officer the jurisdiction of the Civil Court has been excluded because the decision of the Debt Settlement Officer subject to the appellate decision if any has been made final. The Division Bench relied upon the decision of the Supreme Court in the case of Dhulabhai etc. v. State if Madhya Pradesh and another A.I.R. 1969 S. C. 78 that wherever the decision of the special tribunal created by a statute is made final the jurisdiction of a plenary Court is excluded. It is too late in the day to say that ordinarily the Civil Court retains jurisdiction even where finality has been accorded by the statute to the orders and decisions of the special tribunals created by it. Indeed the special tribunal should furnish or provide an adequate remedy to do what a Civil Court normally does in a suit. The Division Bench has also held that secs. 12 and 13 provide adequate machinery for deciding questions specified in sec. 12. Therefore it has been laid shown by the Division Bench that the finality accorded to the decision under sec. 12 or under sec. 13 excludes the jurisdiction of the Civil Court in matters specified therein. However the Division Bench upheld the argument that the jurisdiction of the Civil Court was excluded only in a case where a question specified in sec. 12 was decided in any proceeding under the said Act. It has also been held by the Division Bench that the expression any proceeding under this Act means proceedings instituted under sec. 6 of the said Act and nothing . The Division Bench took that view because if the Legislature had intended otherwise and thought of including in the said expression applications made by defendants or judgmentdebtors in suits or execution proceedings raising the defence under the said Act the Legislature would have conferred exclusive jurisdiction upon the Debt Settlement Officer to decide questions arising both under secs. 11 and 12 irrespective of where they originated. Therefore after having considered the scheme of secs. 11 and 12 it was held by the Division Bench that the bar of jurisdiction of civil or revenue Court comes into play only when the provisions of the said Act apply or a decretal debt is due from a debtor as defined in the said Act. The Division Bench therefore observed that if upon enquiry the Civil Court recorded the finding that to a particular claim made by the plaintiff the provisions of the said Act did not apply the Civil Court would have jurisdiction to proceed with the suit. Similarly if the Civil Court came to the conclusion in case of an execution proceeding that the judgment-debtor was not a debtor within the meaning of that expression as defined in the said Act the Civil Court would have jurisdiction to proceed with the execution of the decree. The Division Bench turned down the contention that as soon as the defendant or a judgment-debtor raised in a civil suit or in an execution proceeding a plea under the said Act the jurisdiction of the Civil Court was excluded. Whilst resolving this conflict the Division Bench was indeed impressed by the fact that the substance of the matter lay in giving relief to certain classes of debtors. Secondly the said Act did not give relief in absolute terms but it was conditional upon the existence of facts specified in the said Act. In view of the aforesaid observations the Division Bench concluded that under sec. 12 of the said Act the Debt Settlement Officer has exclusive jurisdiction to decide the questions specified in sec. 12 in a proceeding instituted under sec. 6 of the said Act. If in such proceedings a decision has been recorded by the Debt Settlement Officer the Civil Court by virtue of sec. 11(1)(a)(ii) is bound by it and must act upon it. In all other cases where there is no decision of the Debt Settlement Officer operating in the field the Civil Court irrespective of whether proceedings under sec. 6 have been instituted or not has the jurisdiction to decide whether the provisions of the said Act apply to the recovery of the debt which is the subject-matter of proceedings before it. Similarly the Civil Court has jurisdiction to decide whether a judgmentdebtor against whom execution proceedings have been instituted is a debtor the meaning of the said Act. If the Civil Court comes to the conclusion that the debt or decretal debt which is the subject-matter of proceedings before it is governed by the provisions of sec. 11 or is bought to be recovered from a debtor within the meaning of that expression given in the said Act the other provisions of the said Act will come into force and the defendant or the judgment-debtor will be entitled to ask the Civil Court to give him relief which is due to him under the provisions of the said Act. The Division Bench lastly observed that if the Civil Court came to the conclusion that a particular debt was not governed by the provisions of the said Act or that the judgmentdebtor from whom the decretal debt was sought to be recovered is not a debtor within the meaning of the expression given in the said Act the Civil Court has jurisdiction to proceed further with the case before it and to deal with and dispose it of in accordance with law. We arecalled upon to examine the soundness of these observations made by the Division Bench in light of the sole reason which weighed with the learned single Judge in coming to a contrary conclusion.;


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