Mathulla Mathew and Another vs Abraham Skaria and Others

K. Bhaskaran, J.—Revision petitioners are defendants in the suit O. S. No. 19 of 1967 on the file of the Subordinate Judge of Pathanamthitta. Respondents herein filed I. A. No. 194/1971 praying that they may be allowed to avail of the benefits conferred u/s 11 of Act 11 of 1970. The learned Subordinate Judge allowed the petition. It is the correctness of the order of the learned Subordinate Judge, allowing the petition, that is being challenged in this revision petition. Sri K. N. Narayanan Nair, learned counsel appearing for the revision petitioner, submits that the learned Subordinate Judge has exercised the jurisdiction vested in him wrongly in allowing the petition for amendment. It is submitted that the proper remedy for the respondents herein, if they so choose, to avail of the benefits conferred u/s 11 of Act 11 of 1970, is to move the Court by an application, not by suit or by amending the suit. In support of his contention he has brought to my attention two decisions of this Court, One is the Full Bench decision in Cherukutty Mattuvayil Chandukutty Vs. Thoyali Kurinholi Arjunan and Another, . In paragraph 7 of the judgment Govindan Nair, J., has stated as follows:--

"In the result, we dismiss this appeal. We however direct the respondents if they wish to avail themselves of the benefit of Section 11 to move a proper application within a month of this date, on the trial side of the Court, and pay court-fee thereon in accordance with the provision in Sub-section (3) of Section 11. If such an application is moved, the amount said to have been deposited, a sum of Rs. 400/- pursuant to the Execution Petition dated 10-1-1959 will be given credit to and the application moved by the respondents, dealt with on the merits in accordance with the provisions in Section 11 of the Kerala Agriculturists'' Debt Relief Act, 1958."

Sri T. M. Cheriyan, learned counsel appearing for the respondents herein, points out that the question regarding the procedure to be adopted in applying for the relief u/s 11 of Act XXXI of 1958 did not really arise directly in that case. It was, it is pointed out, a case wherein the real dispute was as to whether a petition u/s 11 (3) of the said Act would lie in a case where there was already a decree on a hypothecation bond and the decree was actually pending in execution. It was only incidentally, by way of giving a direction to the plaintiff to avail of the benefit, if he so chooses, as his appeal was not maintainable, that reference is made to the application to be filed. All the same, considering the matter in its true perspective, I feel that the correct position is that it is only by an application that the respondent herein can move for relief u/s 11 of Act 11 of 1970. The other decision cited by learned counsel appearing for revision petitioner is the one reported in Vasu Vs. Chakki Mani, . In that case also, the learned counsel appearing for the respondent points out, there was no direct question involved as to whether the procedure for applying for relief u/s 11 of Act XXXI of 1958 should be in the form of an application or otherwise. The one question involved in that case was the correctness of the court-fee paid, and the other was whether the proceedings were bad for non-joinder of parties. The observation on which the learned counsel appearing for the revision petitioner relies is contained in paragraph 5 of the judgment of Raman Nair, J., (as he then was), which reads as follows:

"The suit is for premature redemption on payment of half the mortgage money in accordance with Section 11 of Act 31/58. As that section stood at the time the suit was brought, it merely declared the right of the agriculturists mortgagor to redeem a mortgage before the expiry of its term and on payment of only half the money due, suffering a decree for the balance. It did not specify how the mortgagor was to move the court for the purpose, and hence he had to pursue his ordinary remedy of a suit. That was what the plaintiffs here did, and since Section 11 (3) expressly said that the mortgagor shall pay court-fee, as on a suit for redemption, only on the balance of the mortgage amount, namely, half the mortgage amount it would appear that the court-fee paid in the suit on such amount was correct.

However that might be, Section 11 of the Act has now been retrospectively amended by Act 2/61 by saying the court is to be moved by an application and not by suit so that its provisions cannot apply to a suit for redemption. But I am told that the plaintiffs have applied to court for converting their suit into an application u/s 11, and, if that be so, and if the application is allowed, no question of the adequacy of the court-fee paid will arise at all."

That observation clearly is to the effect that for availing of the benefit u/s 11 of Act XXXI of 1958 what is contemplated is an application, not a suit.

A reading of Sections of Act 11 of 1970 as a whole will convince that only an application, not a suit is contemplated by the legislature. Sub-section (2) of Section 11 reads as follows:--

"(2) Notwithstanding that the period of the mortgage has not expired, a mortgagor who is an agriculturist shall, on application be entitled, subject to the provisions of Sub-sections (4) and (6), to recover the mortgaged property on depositing in court-

(a) one-third of the mortgage amount; .........................................."

When this is read along with Sub-section (5) which reads:

"An order passed under Sub-section (4) shall be deemed to be a decree," there cannot be any doubt that what is contemplated is an application, not a suit for the purpose of obtaining the benefit u/s 11 of the Act. Sub-section (2) of Section 21 of the Act which deals with appeals reads as follows:--

"An order passed in appeal under Sub-section (1) shall be final."

From Sub-section (2) of Section 21 it is clear that the section provides only for an appeal inasmuch as the appeal from the order shall be final.

By allowing the amendment the prayer gets incorporated in a suit and the result is that it may be open to the aggrieved party to take up the matter not only in appeal, but also in second appeal, if he chooses to do so. This clearly is not something which the legislature has intended.

Learned counsel appearing for the respondent herein has brought to my attention the decision of Ansari, C. J., in Mohammed Kassin v. Janamma Kanchana Amma, (1962) 2 Ker LR 63 wherein His Lordship has held:

"all amendments ought to be allowed, which satisfy the conditions of not working injustice to the other side, and of being necessary for the purpose of determining the real question in controversy between the parties. It has further been held that amendment should be refused only where the oilier party cannot be in the same position as if the pleadings have been originally correct, but the amendment would cause him an injury which could not be compensated in costs. In other words, the broad test, on which amendment should be granted, is that it must be allowed without injustice to the other side."

I do not think this decision would in any way advance the argument of the learned counsel. Here is a case where, if the amendment is allowed, substantial rights of the parties will be affected inasmuch as what would coma is an end by first appeal will be allowed to be dragged on by the second appeal also. Apart from that, no prejudice would be caused to the respondents herein. If they are so advised, they can file a petition for converting the suit into an application as contemplated u/s 11 of Act 11 of 1970.

In the light of the foregoing discussions I hold that for availing of the benefits under Sub-section (2) of Section 11 of Act 11 of 1970 the proper procedure is to move the court by an application, not by a suit. It therefore follows that a redemption suit cannot be amended incorporating an alternative or additional relief u/s 11 of Act 11 of 1970 also.

I make it clear that it would be open to the respondents herein to move the sub-Court within one month from the date of receipt of the records in that court to apply for the conversion of the suit for redemption into an application in terms of Section 11 of Act 11 of 1970, if they are so advised in that behalf, and that the learned Subordinate Judge would dispose of such an application on merit when filed.

The revision petition is allowed as indicated above. There will be no order as to costs in this revision petition.