DEVIBEN WD O SADHURAM JOTURAM Vs. MOTIRAM HOTAMCHAND
LAWS(GJH)-1979-2-23
HIGH COURT OF GUJARAT
Decided on February 28,1979

DEVIBEN WD/O.SADHURAM JOTURAM Appellant
VERSUS
MOTIRAM HOTAMCHAND Respondents

JUDGEMENT

N.H.BHATT - (1.) . These six different Revision Applications filed by the common petitioners but against different respondents initially arose out of different Distress Warrant proceedings against these opponents. These Distress Warrant Applications were filed by these petitioners under sec. 53 of the Presidency Small Causes Court Act which is admittedly applicable to the City of Ahmedabad. In each of these Distress proceedings the Small Causes Court Ahmedabad had issued Distress Warrants but before their properties could be seized each of them had deposited the amount of the claim and contended that Sadhuram through whom the two petitioners in each of these six petitions claimed was adjudged to be a trespasser in respect of the suit land in a proceeding between Sadhuram on one hand and the owners of the land namely some members of the Surti family of Ahmedabad and therefore they were not liable to be proceeded against. The right of the petitioners therefore was seriously called in question. These objections filed by the respondents in those six Distress proceedings were treated by the Small Causes Court Judge as the applications under sec. 60 of the Act. Considerable evidence was led both oral and documentary before the learned Judge who ultimately concluded that the question of title was greatly in the contest. The right to the alleged amount of rent which was for seven months in all these cases was seriously challenged and the liability was stoutly denied. The court ultimately held that the summary proceedings under sec. 53 were not the proper proceedings in which such contentious questions pertaining to title rights and liability can be adjudged. The result was that the court rejected the main application under section 53. Then six different revision applications were filed against those six orders which were dismissed by the Appellate Bench by a common judgment running into 19 typed pages. The appellate Bench of the Small Causes Court at Ahmedabad concurred with the conclusion of the trial Judge. The present six revision applications are therefore filed by the petitioners challenging the said orders.
(2.) For the purpose of this judgment I assume that these revision applications are competent under sec. 29 (2) of the Bombay Rent Act but Mr. Shah tells me that all these applications are filed under sec. 115 of the Civil Procedure Code. The first ground on which I decline to interfere with the orders of the courts below is that these petitioners have a suitable remedy open to them to file the suits under sec. 18 of the Presidency Small Causes Court Act or sec. 28 of the Bombay Rent Act for the purpose of realising this rent and in such suits the question of title also can be incidentally gone through as per the legal provision namely sec. 29-A of the Bombay Rent Act. As more efficacious remedy is available to these petitioners I am not inclined to exercise this discretionary jurisdiction of mine under sec. 115 of the Civil Procedure Code. Even apart from this on merits also I find that the appellate Benchs judgment is proceeding on a sound footing. The elaborate discussion of the evidentiary material in the judgment of the Appellate Bench is by itself sufficient proof of the fact that the question of title was hotly debated and is therefore highly in the contest between the parties. Distress proceedings which are initiated ex-parte and which are ex facie of the summary character cannot be said to be proper proceedings for dealing with contentious questions like the one that has been raging in this litigation. On this view I am fortified by the judgment of the Calcutta High Court in the case of Bhola Singh and Ors. v. Gosto Behari Sarkari A. I. R. 1966 Cal. 199 which is a case directly on all fours as far as the principle is concerned. The Calcutta High Court in that case has observed as follows :- "The Small Cause Court procedure for distress under Chapter VIII of the Act is a summary remedy by which a person seeks an immediate redress to take into his possession the movables of any person to be held as almost a pledge to compel the performance of the satisfaction of a debt; the debt however must be a debt and not a mere pretence to cover controversial questions of title. This distress warrant or its procedure is not a suit. The procedure is a summary one because it starts ex-parte on a mere sworn affidavit which only asserts as its foundation a debt. Because it is ex-parte in the first instance it is all the more essential for the court to examine the objections when they are made. This summary procedure is not however open when the matter involves highly complex questions of title etc". In this case also I find that highly complex and highly contested questions are raised and the Small Causes Court exercising powers under sec. 53 would certainly be not a proper forum to deal with such a hotly debated question.
(3.) Mr. Shah then urged that both the courts below have rejected the application and the courts below have no right to do it. In his view once the jurisdiction is exercised by the court by issuing the Distress Warrant the only conceivable culmination would be the attachment of the property or money and its delivery to the petitioners. Mr. Shahs submission is not well-founded because sec. 60 itself presupposes prima Facie examination of the contentions. Mr. Shah however in this connection urged that the order of discharge or suspension of the warrant or release of the property can be made only after the satisfaction of the debt in question. The Calcutta High Court has used the very term discharge in the above-mentioned case in the sense of vacating the initial ex parte order. It would be so from the very nature of things. Discharge in the context of sec. 60 therefore does not necessarily mean discharge on the debt being paid. The term discharge means vacating the warrant as if it was not issued.;


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