AI Structured Summary
Not yet generated for this judgment
Judgment
Chhatpar, J.—This is an appeal from a decision of the Civil Judge, Senior Division, Surendranagar, dismissing the Appellant''s suit for recovery of Rs. 16200/ - on the ground that the suit was barred by limitation. The facts leading to this appeal are that the Appellant had advanced a loan of Rs. 18500/ - on 22-6-40 to Bharatsinhji, whose legal representatives are his sons, the Respondents. This amount was payable on 25-9-40; the said debtor had passed in favour of the Plaintiff three postdated Cheques of Rs. 3000/ -, 4000/ - and 11500/ - dated 25-9-40, drawn on the Bank of India, Rajkot. The amount advanced was evidenced by a document which recited that on failure of payment, interest at one per cent per annum would be payable. It seems that soon after this loan, Bharatsinhji was involved in debts and since he was under the jurisdiction of the Maharaja of Dhrangadhra, Bharatsinhji approached Durgaprasad. who was a partner in the firm of "Malviya BrOrs. " and requested him to speak and requested His Highness the Maharaja Saheb to intervene and persuade the Plaintiff to come to a settlement as he was unable to pay the amount at once. This happened in 1941. It is then stated that His Highness called both Durgaprasad and the debtor Bharatsinhji and it was arranged that some ornaments (sic) the debtor should be sold by him at Bombay and out of the sale proceeds the debt due to the Plaintiff may be satisfied. In pursuance (sic) this arrangement one Dahyabhai, an Officer of the State of Dhrangadhra, was sent along with Bharatsinhji to Bombay for sale of ornaments and it is stated that the ornaments were actually sold and an amount of Rs. 12144-6-0 was sent from Bombay by Hundis and Cheques and credited to the account of Bharatsinhji with the firm of "Malaviya BrOrs. ". Out of this amount, it is admitted that the Plaintiff was paid Rs. 8000/ - on 4-6-41 and Rs. 3000/ - on 9-
7-41. The Plaintiff not being paid the balance and the interest that had accrued due ultimately filed the present suit against the said Bharatsinhji for recovery of Rs. 16200/ - on 3-7-46. Bharatsinhji died pending the suit and his heirs the present Respondents, were brought on the record. The period of limitation in the Dhrangadhra state was five years and the suit having been filed after the expiry of this period computed from 25-9-40 the date on which the loan was payable, the suit was prima facie barred by limitation, unless the payments made in 1941could save limitation by reason of Section 20, Limitation Act. The learned Civil Judge held that such payments
could not save limitation and dismissed the suit. From the decree dismissing the suit, the Plaintiff has filed the present appeal on 14-4-50. During the interval between the dismissal of the suit on 16-2-50 and the filing of the appeal, the estate of the deceased was taken under management by a Notification dated 1-3-50 is-
sued by the Government of saurashtra under, Section 35 of the Gharkhed Ordinance (41 of 1949). The estate was taken charge of by the manager appointed by Government, who was consequently appointed the guardian-ad-litem of the minor Respondents.
A preliminary point has been raised on behalf of the Respondents that the appeal should either be stayed or dismissed u/s 37 of the Gharkhed Ordinance. It would be necessary therefore to examine the scheme of the relevant provisions of the Gharkhed Ordinance and how far they constitute a bar to the prosecution of the appeal. Section 35 of the Ordinance provides:
Notwithstanding any law for the time being in force ... or when it appears to the Government that it is necessary for the purpose of improving the economic and social condition of peasants or ensuring the full and efficient use of the land for agriculture to assume management of any land-holder''s estate, a notification announcing such intention shall be published, in the Official Gazette....
Section 36 provides the vesting of. estate in the Government so long as the management continues. Section 37 which is important lays down the effect of the declaration of management. It states:
On the publication of the Notification u/s 35 the following consequences shall ensue:
(1) All proceedings then pending in any Civil Court in respect of the debts and liabilities enforceable against the estate shall be stayed, and the operation of all processes executions, and attachments then in force for or in respect of such debts and liabilities shall be suspended;
(2) So long as the management continues no fresh proceedings, processes, executions, or attachments shall be instituted in or issued enforced or executed by any Civil Court in respect of such debts and liabilities....
Further provisions in the Ordinance incapacitate the holder of the estate from entering into any contract involving the estate into pecuniary liability and disabilities are also laid down. Sections 30 and 39 enunciate the powers of the manager. Section 40 relates the giving notice to claimants to file their claims before the manager. Section 41 concerns the making of claims and Section 43 relates to the powers of the Manager to inquire into the history and merits of every claim and determine the amount of the debts and liabilities justly due to the claimants. Sections 45 and 46 provide for preparation of schemes for liquidation of debts and liabilities and Section 47 authorises the Collector to sanction such liquidation schemes and Clause (1) thereof states:
All proceedings, processes, executions and attachments stayed or suspended u/s 37 shall be for ever barred.
The further relevant sections of the Ordinance are Sections. 76 and 30; Section 76 prescribes bar of jurisdiction of Civil Courts in the following terms:
(1) No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Ordinance required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a manager, the Collector or the Saurashtra Revenue Tribunal in appeal or revision or the Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Saurashtra Revenue Tribunal or the Govt. made under this Ordinance shall be questioned in any Civil or Criminal Court.
''Explanation'': For the purposes of this section a Civil Court shall include a Mamlatdar''s Court constituted under the Saurashtra Mamlatdars'' Courts Ordinance, 1948." And Section 80 refers to the repeal of certain enactments and. saving of pending proceedings. Clauses (2) and (3) of this section read as under:
(2) But nothing in this Ordinance or any repeal effected thereby shall, save as expressly provided in this Ordinance, affected or be deemed to affect (a) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Ordinance, or (b) any legal proceedings or remedy in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of this Ordinance, and any such proceeding shall be continued and disposed of as if this Ordinance was not passed.
(3) Notwithstanding anything contained in Sub-section (2), all proceedings for the recovery or restoration of the possession of the land under the ordinance so repealed pending at the date of. commencement of this Ordinance before the Mamlatdar or in appeal before the Collector, shall, notwithstanding anything contained in this Section, be deemed to have been instituted and pending before the Mamlatdar or in appeal before the Collector, as the case may be under this Ordinance and shall be disposed of in accordance with the provisions of. this Ordinance.
The notification of assumption, of management of the estate in the present case is published in the Saurashtra Government Gazette of 1950, Part III at page 160, which reads as under:
No. RD/IV/6-Whereas the Government is satisfied that on account of disputes between widows of Ranas Shri Bharatsinhji and Udaysinhji of Ghansyamapur in Halvad Taluks, Zalawad District, and their tenants, the cultivation of lands comprised in the estate has seriously suffered;
And whereas it appears to the Government that it is necessary, for the purpose of ensuring the full and efficient use of the land for agriculture, to assume management of the estate;
And whereas the widows have applied for the estate being taken under Government management;
Now, therefore, it is hereby notified that management over the said village Ghansyampur shall be assumed with immediate effect u/s 35 of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 (41 of 1949).
The Mamlatdar, Halvad Taluka, is hereby appointed as Manager of: the said estate." It refers to certain disputes between the widows of Ranas Bharatsinhji and Udaysinhji of Ghansyampur and thereafter notifies the taking over of the management over the village Ghansyampur u/s 35, Saurashtra Gharkhed Ordinance. This Notification does not give the names of the Respondents who are the minor sons of the deceased Bharatsinhji, and under the Hindu Law, the legal representatives and the owners of the estate of Bharatsinhji. To this extent the notification appears to be defective. As the Ordinance contains provisions disabling land-holders whose estates are taken under management for contracting etc., their names should always be mentioned in the notification of assumption of management for the benefit of the public. In the present case as the Respondents were minors and their estate was probably looked after by their mother, reference is made to the widows and not to the minors themselves. However it is not disputed before us that the notification does refer to the estate of Bharatsinhji in the hands of his legal heirs and representatives, the Respondents in the present appeal, and the validity of the notification for such defect has not been challenged before us.
Mr. A.R. Baxi, the learned Advocate for the Appellant, in meeting the preliminary objection raised by Mr. C.P. Oza, who appears on behalf of the Respondents, that the appeal should either be stayed or dismissed u/s 37 of the Ordinance, has raised three contentions. His first contention is that the word ''proceedings'' in Section 46 does not include an appeal. He argues that right of appeal is a substantive right which accrues to a litigant at the time of the institution of the suit and any legislation which purports to take away such right and give retrospective effect to it can only do so by express language. He consequently argues that since the word ''appeal'' is not included in Section 37, the right of appeal is not barred and the Appellant is entitled to prosecute the present appeal.
No doubt it is a well established principle of law that right of appeal is a substantive right and cannot be taken away retrospectively, unless the legislature does say so by express words or necessary intendment. I may refer to a very recent ruling of the Bombay High Court in the case of- Kavasji Pestonji Dalal Vs. Rustomji Sorabji Jamadar, , wherein Chagla C.J. observed:
It is a well established principle of law that no litigant has any right to have his litigation decided by any particular procedure and all procedural laws are therefore retrospective in their character and affect even suits filed prior to the passing of such legislation. But a right of appeal which a suitor has in a pending action is not merely a matter of procedure. It is a vested right and the Legislature cannot take away that right retrospectively unless it does so by express words or necessary intendment.
The oft-quoted case of-Colonial Sugar Refining Co. v. Irving (1905) AC 369, was referred to in that case. But even this rule says that a legislation can by express words or necessary intendment take away such vested right of appeal retrospectively. We have, therefore, to see whether there is any provision in the Gharkhed Ordinance which does take away such right by express words or necessary intendment.
If the word ''proceedings'' in Section 37 can be construed to include an appeal, there would be such exclusion of the right of appeal by necessary intendment if not by express words. The import of the words ''proceedings, suit and appeal'' have been from time to time discussed by the High Courts. I might refer to a very old decision of the Bombay High Court given in the case of-Ratanchand Shrichand v. Hanmantrav Shivbakas 6 Bom HCR 166, wherein, it was remarked by Couch C.J.:
a suit is a judicial proceeding, and the word ''proceeding'' must be taken to include all the proceedings in the suit from the date of its institution to its final disposal and therefore to include proceedings in appeal.
In the case of-Chinto Joshi v. Krishnaji Narayan 3 Bom 214, West J. observed:
The legal pursuit of a remedy, suit, appeal, and second appeal are really but steps in a series of proceedings connected by an intrinsic unity
The case of-Ratanchand v. Hanmantrav'' was cited with approval by Jenkins C.J. in the case of-Nana Aba v. Sheku Andu 32 Bom 337 at p. 344, wherein the above remarks of Couch C.J. were reproduced. In the case of-Pandarinath Kikalal v. Thakoredas Shankardas 31 Bom LR 484, Patkar J. observed:
A suit and all appeals made therein are to be regarded as one legal proceeding.
I may also refer to the commentary of Chitaley on the Code of Civil Procedure, 1950 Edn., Vol. I at page 954 and the numerous cases cited in support thereof. The learned commentator states:
An appeal is not a fresh suit but is only a continuation of the original proceedings, and a stage in the suit itself. The decree passed by the appellate Court is a decree in the suit and the appellate judgment stands in the place of the original judgment for all legal purposes. An appeal differs from a review in that the primary intention of the review is the reconsideration of the subject by the same Judge under certain conditions, while an appeal is a rehearing by Anr. tribunal.
It would, therefore, seem that a suit, an appeal and a second appeal are regarded as one proceeding and therefore the word ''proceedings'' used by itself would include both a suit and an appeal which are parts of one proceeding.
Mr. A.R., Baxi, the learned Advocate for the Appellant, has relied upon a Full Bench ruling of the Lahore High Court given in the case of-Kirpa Singh v. Rasalldar Ajaipal Singh AIR 1928 Lah 627 (FB) where in interpreting the provisions of the Sikh Gurudwaras Act, the learned. Judges held that Section 32 of that Act, was applicable to suits or proceedings ''ejusdem generis'' pending in a Court of first instance and did not govern a pending appeal, it was observed citing the case of-Colonial Sugar Refining Co. v. Irving (1905) AC 369:
It is now authoritatively settled that the right of appeal is not a mere matter of procedure, but is a vested right which inheres in a party from the commencement of the action in the Court of first instance. If according to the law in force at the time when the action was started in the Court of first instance the ultimate decision of such Court was appealable, the right to prefer or prosecute an appeal therefrom is not affected by subsequent change of the law abolishing the appeal or modifying its forum unless it is so provided expressly in the amending statute or follows by necessary implication from its terms,
But it was nevertheless observed in the very same ruling that the words ''suit'', ''proceedings'' and words of similar connotation have different meanings in different statutes and it is not possible to lay down a general rule of interpretation which would be applicable to all cases. In each particular case the question has to be examined in reference to the context and that meaning is to be preferred which will best fit in with it.
Considering the scheme of the Gharkhed Ordinance and the concluding provisions barring the jurisdiction of the Civil Courts, I am definitely of the opinion that the word ''proceedings'' contained in Section 37 must necessarily include ''appeals''. The word ''proceedings'' is used by itself and not in conjunction with the word ''suit'' as in the Lahore case-Kirpa Singh v. Rasalldar Ajaipal Singh AIR 1928 Lah 627 (FB) relied upon by Mr. Baxi, which might suggest a proceeding restricted in the sense of an original suit by the application of the doctrine of ''ejusdem generis''. I, therefore, hold that the first contention of the learned Advocate for the Appellant is not sustainable.
The next contention of Mr. Baxi is based upon the interpretation of the words ''debts and liabilities enforceable against the estate'' occurring in Section 37. He argues that the claim in suit was realisable not only from the Immovable property of the estate of the deceased, which has been taken under management, but also from the person and moveable property of the deceased now in the hands of his heirs and legal representatives, the Respondents; and to the extent of his right to recover the debt from moveable property of the deceased, the Appellant''s claim cannot be barred by reason of the provisions of the Gharkhed Ordinance. But it cannot be disputed for a moment that this debt for the recovery of which the suit has been filed is also realisable from the estate taken under management. The mere fact that it can be recovered from other sources as well cannot help the Appellant, as the meaning of the words in the section is quite clear: it cannot be said that the debt is not a debt enforceable against the estate. The Courts have to interpret the section as it is. If it works hardship on the Appellant and unduly restricts his rights, the remedy lies with the legislature. The plain meaning of the words ''debts and liabilities enforceable against the estate'' include the claim of the Appellant, although under the Ordinance only a part of the estate is notified to have been taken under management. I, therefore, overrule this objection also.
The last contention raised by Mr. Baxi on behalf of the Appellant is that in any case Section 80 of the Gharkhed Ordinance reproduced above saves all pending proceedings which must be continued and disposed of as if the Ordinance were not passed. The important words in Clause (2) of Section 80 are "save as expressly provided in this Ordinance", and I am of the opinion that there is such express provision contained in Section 37 that all proceedings pending in any Court shall be stayed and no fresh proceedings shall be instituted. Since I have interpreted, the word ''proceedings'' as including ''appeals'', the operation of Section 80(2) is saved by the express provision contained in Section 37. 1 a.m., therefore, of the opinion that this contention also is not of avail to the Appellant.
The last question to be considered is the nature of the order to be passed whether this appeal should be stayed or to be dismissed. Clause (1) of Section 37 provides that all pending proceedings shall be stayed, while Clause (2) says that no fresh proceedings shall be instituted. In the view that I take and which is supported by the authorities cited above that an appeal is in fact a continuation of the suit and as both suit and, appeal are really one proceeding, I am of the opinion that Clause (1) applies and the present appeal should be stayed.
In conclusion, I may state that Mr. Baxi has laid considerable stress on the argument that since the Appellant''s suit has been dismissed by a competent Court, the Manager who has taken charge of the estate of the Respondents would naturally rely upon such decision and not entertain his claim. He has argued that the Ordinance does not give the Manager power to decide the pending appeal. Looking to the scheme of the Ordinance and particularly Section 43 which empowers the Manager to inquire into the history and merits of every claim. I have no doubt that this apprehension of Mr. Baxi is groundless and indeed Mr. Oza, the learned Advocate for the Manager, who is now the guardian- ad-litem for the Respondents, admits that in spite of the decree dismissing the Plaintiff''s suit, and in view of the appeal being pending, it is open to the Manager to go into the claim of the Appellant. This is, however, subject to other provisions of the Ordinance as to the filing of the claim and condoning delay etc. which matters lie within the powers of the Manager and which I have no doubt the Manager will liberally exercise.
In the result, I order that the appeal be stayed u/s 37 of the Gharkhed Ordinance. In view of the peculiar nature of the case and there being no decision on merits, I order that each party should bear his own costs of this appeal.
Shah, C.J.
I agree.