Rajasthan High Court - Jaipur
Smt. Maina Kumari vs Punjab National Bank on 4 April, 1996
Equivalent citations: 1996(3)WLC170, 1996(1)WLN287
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. Since there is a decision rendered by the learned Single Judge of this Court in the case of Daulat Ram v. Punjab National Bank reported in 1990(2) RLW 339 in favour of the appellant, therefore, till reference is decided by the Larger Bench, the instant second appeal-deserves to be admitted, therefore, it is hereby admitted and notice be issued to the respondent Bank.
2. This second appeal has been preferred against the older dated 23.12.1994 passed by the learned Additional District and Sessions Judge No. l, Chittorgarh in alleged Civil Appeal No. 83 of 1988 whereby the order dated 11.5.87 passed by the Prescribed Authority under Sub-section (1) of the Rajasthan Agricultural Credit Operations (Removal of Difficulties Act, 1974 (hereinafter referred to as 'the Act No. 22 of 1.974') has been affirmed.
3. Brief facts necessary to be noticed are that the appellant was granted a financial assistance of Rs. 68,000/- for purchase of a Tractor which is an agricultural implement by the Punjab National Bank. It appears that due to default in payment the respondent Bank filed an application under Sub-section (1) of Section 13 of Act No. 22 of 1974 before the Sub Divisional Officer, Chittorgarh. Indisputably, the Sub Divisional Officer, Chittorgarh has been notified by the State Government to function as a 'Prescribed Authority* for the purposes of Sub-section (1) of Section 13 of the said Act.
4. The Sub Divisional Officer, Chittorgarh in his capacity as a prescribed authority within the meaning of Sub-section (1) of Section 13 of Act No. 22 of 1974 issued notice to the appellant who filed a detailed reply denying the alleged outstanding dues against her. According to the appellant she has already deposited Rs. 76,485/- upto 5.7.85.
5. After hearing the appellant as well as respondent Bank the prescribed authority directed the payment of sum in question alleged to be due to the respondent Bank vide its order dated 11.5.87.
6. Aggrieved against the aforesaid order dated 11.5.87 the appellant filed an appeal under Section 96 CPC before the learned Additional District and Sessions Judge No. 1, Chittorgarh whereby he dismissed the same and upheld the order dated 11.5.87 passed by the prescribed authority.
7. Aggrieved against the dismissal of her appeal by the learned Additional District and Sessions Judge No. 1, Chittorgarh the appellant has filed the instant second appeal under Section 100 CPC before this Court on the ground that the order passed by the Sub Divisional Officer, Chittorgarh in his capacity as prescribed authority under Sub-section (1) of Section 13 of Act No. 22 of 1974 will be deemed to be a decree of the Civil Court, therefore, an appeal as well as second appeal is maintainable.
8. Before entertaining the instant second appeal the following questions were asked by this Court to the learned counsel for the appellant:
A. WHETHER filing of an appeal is creation of statute and in absence of any provision for appeal under Act No. 22 of 1974 against the order passed by the prescribed authority in exercise of his powers under Sub-section (1) of Section 13 of the said Act yet an appeal under Section 96 CPC and second appeal under Section 100 CPC are maintainable as a matter of corollary of the subordination of all courts of civil jurisdiction to the District Court in a District area and to the High Court in a provincial area within the meaning of Section 3 of the Code of Civil Procedure?
B. WHETHER a prescribed authority notified by the State Government to make an order on an application of a Bank for payment of any sum due to the Bank on account of financial assistance availed of by an agriculturist under Sub-section (1) of Section 13 of Act No. 22 of 1974 falls within the ambit of Civil Court as contemplated under Sub-section (2) of Section 13 of the aforesaid C. WHETHER option of a Bank choose a forum either to make an application under Sub-section (1) of Section 13 of Act No. 22 of 1974 or to file a civil suit as envisaged under Sub-section (3) of Section 13 of the aforesaid Act without prescribing any guide-line between similarly circumstanced agriculturists amounts hostile discrimination within the meaning of Article 1-4 of the Constitution of India and run counter to the doctrine of equality.
9. In reply, it is urged by learned counsel Mr. S.L. Jain appearing on behalf of the appellant that questions No .A and B are squarely covered by the decision rendered in the case of Daulat Ram (supra) while question No. C is a new point.
10. I propose to discuss the aforesaid points in detail in seriatim. Since points No. A and B are inter-linked hence these two points deserve to be discussed together while point No. C requires discussion separately.
POINTS NO. A AND B.
11. In my considered opinion, the decision rendered by the learned Single Judge of this Court in the case of Daulat Ram (supra) requires reconsideration, inasmuch as, an appeal under Section 96 CPC is enterainable against a decree. Therefore, unless a decree is drawn, no appeal lies as a matter of corollary of the subordination of all the courts of civil jurisdiction to the District Court and to the High Court within the meaning of Section 3 CPC. Indisputably, on the basis of the orders passed by the prescribed authority in exercise of his power under Section 13(1) of Act No. 22 of 1974 no decrees are drawn, therefore, appeals under Section 96 CPC are not maintainable and an argument contrary to it is not acceptable by any stretch of imagination.
12. The expression 'decree' used under Section 96 CPC has been defined under Section 2(2) of GPC which reads thus:
2(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary of final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a)any adjudication from which an appeal lies as an appeal from an order, or
(b)any order of dismissal for default.
Explanation-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
In my humble opinion the expression 'decree' used under Section 2(2) of C.I.C. encompasses that there must be an adjudication, the adjudication must have been given in a suit, it must have determined the light of the parties arising out of a suit and drawing of a decree either final or preliminary. Drawing of a decree arising out of a suit is a condition precedent to entertain an appeal under Section 96 CPC.
13. Secondly, I am of the opinion that the prescribed authority notified by the State Government under Sub-section (1) of Section 13 of Act No. 22 of 1974 cannot said to be a civil court within the meaning of Section 3 of C.P.C. The prescribed authority under the aforesaid section cannot be termed to be even a court. In this regard, suffice It to say that at the most the prescribed authority can said to be either an arbitrator or a tribunal within the meaning of Sub-section (1) of Section 13 of Act No. 22 of 1974. The prescribed authority notified under the aforesaid section by the State Government is meant to discharge only a quasi judicial function which cannot be termed as a civil court within the meaning of Section 3 CPC. Hence, such orders passed by prescribed authorities are not amenable to- appeals as contemplated under Section 96 CPC and also not amenable to second appeals under Section 100 CPC.
14. I am also of the opinion that the proceedings under Sub-section (1) of Section 13 of Act No. 22 of 1974 are not judicial proceedings but these proceedings can said to be only quasi judicial proceedings. Detail procedure of suits are not made applicable in a proceeding under Sub-section (1) of Section 13 of the said Act. Concept of filing of a plaint or a written statement is foreign to such proceedings. It is further noticed that provisions of Civil Procedure Code and Indian Evidence Act have not been extended to the proceedings envisaged under the aforesaid section.
15. It is true that the learned Single Judge while deciding the case of Daulat Ram (supra) has taken into account decisions rendered by this Court in cases of Satnik Motors v. S.T Authority and KishanLal v. Sohan Lal . Learned Single Judge has also placed relinace on a decision rendered by the Apex Court in the case of Ganga Bai Vijay Kumar . In my humble opinion it appears that the conclusion arrived at in the case of Daulat Ram (supra) is not in consonance with the ratio dicidendi of the aforesaid decisions.
16. It is strenuously urged before me by the learned counsel for the appellant Mr. S.L. Jain that under Sub-section (2) of Section 13 of Act No. 22 of 1974, the prescribed authority is to be deemed to be a civil court but for the reasons stated herein below, it is not possible for me to accept the aforesaid argument of Mr. S.L. Jain.
17. According to me, under the aforesaid Section, the prescribed authority acts as a quasi judicial authority and not as a Civil Court. At the risk of repetition, it is reiterated that no decree is drawn up on the basis of the order passed although the order passed by the prescribed authority under the aforesaid section is executable in the same mariner as the decree passed by a Civil Court as contemplated under Sub-section (2) of Section 13 of Act No. 22 of 1974. Explanation added under Sub-section (2) of Section 13 of the said Act throws a flood of light that for the purpose of exercising powers conferred by this Sub-section i.e. Sub-section (2) of Section 13 of the aforesaid Act the prescribed authority shall be deemed to be a Civil Court.
18. From close security of Sub-section (2) of Section13 read with explanation added to the aforesaid Sub-section (2) of the said section further make it abundantly clear that the order passed by the prescribed authority under Sub-section (1) of Section 13 of the said Act obtains a colour of decree for a limited purpose of its execution by way of legal fiction created by the statute under the said Section. I am of the view that while executing the order passed under Sub-section (1) of Section 13 of Act No. 22 of 1974, the prescribed authority shall be deemed to be a Civil Court and as such, he can press into service all the provisions contained under Order 21 from Rule 1 to Rule 106 of C.P.C. for the purposes of executing its orders so passed under Section 13(1) of the said Act as a decree passed by a civil court. Any objection filed by an agriculturist opposing the execution of the order is enterainable under Section 47 CPC and the order passed by the prescribed authority while executing its order, either allowing or refusing such objection filed by an agriculturist under Section 47 CPC is revisable within the meaning of Section 115 CPC read with amended, Section 2(2) of C.P.C.
19. It is pertinent to mention that words 'Section 47 or' have been omitted from Section 2(2) of C.P.C. by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 1.2.1977, therefore, after enforcement of amended Section 2(2) of C.P.C. modifying the definition of 'decree' an order passed under Section 47 CPC is only revisable under Section 115 CPC. Before enforcement of amendment of Section 2(2) CPC an order passed under Section 47 of C.P.C. was included within the definition 'decree' but now under amended Section 2(2) CPC it is excluded.
20. Almost an identical question was raised before me in SB Civil Revision Petition No. 662 of 1995-Smt.Gulab Kanwar v. UCO Bank decided on 6.10.1995 where reliance was placed on the case of Daulat Ram (supra). After going through the case of Daulat Ram (supra), it was held in paragraph 7, which reads thus:
In my considered opinion, the revisionist was perfectly justified to invoke the jurisdiction of this Court under Section 115 CPC, inasmuch as, earlier it is true that the order passed under Section 47 CPC was included within the ambit of a decree as defined under Sub-section (2) of Section 2 of the Civil Procedure Code but by amending Act No. 104 of 1976 the words and figures of Section 47 are omitted, therefore, in my opinion, if any objection is filed under the said Section by the revisionist before the prescribed authority then against its rejection he is justified to file a revision before this Court and an argument contrary to it is not acceptable to me. The facts and circumstances of the case of Daulat Ram (supra) are not attracted in the present case. So the preliminary objection raised by the learned 'counsel for the non-petitioner-Bank is hereby over-ruled and I propose to decide the present revision on merits.
21. Argument of the learned counsel for the appellant to the effect that in the case of Smt. Gulab Kanwar (supra), the proposition of law enunciated in the case of Daulat Ram (supra) has been followed by this Court, is being raised merely to be rejected which is hereby rejected as untenable.
22. The aforesaid fact Is obvious from reading of paragiaph 7 of the judgment rendered by me in the case of Smt Gulab Kanwar (supra). Suffice it to say that in the case of Smt. Gulah Kanwar (supra), the Interpretation of Sub-section (2) of Section 13 and its explanation was involved and this Court was not called upon to inter prete the provisions envisaged under Sub-section (1) of Section 13 of Act No. 22 of 1974. It is true that an order passed by a prescribed authority in exercise of his power under Sub-section (1) of Section 13 of Act No. 22 of 1974 assumes a colour of decree for limited purpose of its execution. Every order passed by a prescribed of authority in terms of Sub-section (1) of Section 13 of the said Act shall be deemed to be a decree of a civil court and shall be executed by him In the same manner as a decree passed by a civil court. For the purpose of exercising powers conferred by Sub-section (2) of Section 13 of Act No. 22 of 1974 the prescribed authority shall be deemed to. be a civil court. The aforesaid proposition of law enunciated in case of Smt Gulab Kanwar (supra) is hereby reiterated.
POINT NO.C:
23. As regards the last question formulated in the preceding paragraph about option of a Bank to choose a forum is an unique provision under Act No. 22 of 1974. A Bank has been given option either to make an application under Sub-section (1) of Section 13 of Act No. 22 of 1974 or to file a civil suit as envisaged under Sub-section (3) of Section 13 of the aforesaid Act. It is true that if a litigant has been given option by an enactment either passed by the Parliament or by the State Legislature to invoke two forums for mitigating his grievances then in such a situation option should be left open by courts of law to the litigant public to invoke the jurisdiction of either of the forum. For example under Section 397 Cr.P.C. against an order passed by any inferior' criminal court a revision is maintainable either before the High Court or before any Sessions Judge. A litigant is at liberty to invoke either the revisional jurisdiction of the High Court or Sessions Judge although no guidelines are prescribed. To my mind where there is no element of prejudice in invoking either of the forum such options given to litigant public are valid but where such options cause prejudice it should be declared to be invalid.
24. With the aforesaid introspection it is to be examined whether choosing of forum by a Bank under Act No. 22 of 1974 is also so innocuous as contemplated under Section 397 Cr.P.C.
25. In my humble opinion in absence of any guideline it goes without saying that if the Bank is allowed to adopt the practice of pick and choose between two similarly circumstanced agriculturists then a serious1 prejudice would be caused to such agriculturists against -whom a Bank has opted to move an application under Sub-section (1) of Section 13 of the said Act before the prescribed authority notified by the State Government. Such agriculturists will be deprived of a full fledged trial of a Suit by a competent civil court with the aid of Civil Procedure Code and Indian Evidence Act, inasmuch as, the provisions of C.P.C. and Evidence Act have not been extended to the proceedings under Sub-section (1) of Section 13 of Act No. 22 of 1974 before a prescribed authority. Such agriculturists will be further deprived of to file an appeal against order passed under Section 13(1) of the said Act us there is no provision to file an appeal against the order passed by the prescribed authority under Section 13(1) of the said Act whereas if Bank has opted to file a civil suit against a similarly circumstanced agriculturists who had also obtained financial assistance from a Bank then such agriculturists shall be entitled for full fledged trial by a competent civil court ans will also be entitled to file a regular appeal under Section 96 CPC as well as a second appeal under Section 100 CPC.
26. The case of an agricultarist against whom the Bank has opted to make an application under Sub-section (1) of Section 13 of the said Act before a prescribed authority will be decided by a sub Divisional Officer whose mind is administratively trained whereas latter's suit will be tried by a competent civil court whose mind is trained judicially. There are fundamental and basic difference between administratively trained mind of an administrator and a judicially trained mind of a presiding judicial officer. Former is always prone to be influenced with administrative exigencies and administrative necessity which may or may not be justice oriented whereas latter's approach is always justice oriented uninfluenced with administrative exigencies and administrative necessity. For an administrator while taking a decision administrative exigency and administrative necessity is a paramount consideration whereas for a judicial officer presiding in a court of law justice and justice alone is paramount consideration uninfluenced with administrative exigency or administrative necessity.
27. The aforesaid option in choosing either of the forum mentioned above given to the Bank in absence of any guideline may lead to hostile discrimination between two agriculturists similarly circumstanced. Discrimination of any kind is to be taken an anathema to our constitutional philosophy. To my mind State, Parliament or State Legislature cannot be permitted to deny any person equality before law or the equal protection of the laws within the territory of India as enshrined under Article 14 of the Constitution of India.
28. In my humble opinion the circumstances stated in the preceding paragraphs run counter to the doctrine of quality embodied under Article 14 of the Constitution of India. It should be taken to be settled principle of law that Article 14 of the Constitution of India strikes at arbitrariness and ensures fairness and equality of treatment between two persons similarly circumstances (See AIR 1974 SC 555, AIR 1978 SC 597 and AIR 1979 SC 1628).
29. For the reasons stated above, I am of the opinion that the decision given by the learned Single Judge of this Court in case of Daulat Ram (supra) requires reconsideration on the following points:
1. WHETHER filing of an appeal is creation of statute and in absence of any provision for appeal under Act No. 22 of 1974 against the order passed by the prescribed authority in exercise of his powers under Sub-section (1) of Section 13 of the said Act can be made appealable under Section 96 CPC and Section 100 CPC as a matter of corollary of the subordination of all courts of Civil Jurisdiction to the District Court in a District area and to the High Court in a provincial area within the meaning of Section 3 of the Code of Civil Procedure ?
2. WHETHER a prescribed authority notified by the State Government to make an order on the application of a Bank for payment of any sum due to the Bank on account of financial assistance availed of by an agriculturist under Sub-section (1) of Section 13 of Act No. 22 of 1974 falls within the ambit of Civil Court as contemplated under Sub-section (2) of Section 13 of the aforesaid Act?
3. WHETHER option of a Bank to choose a forum either to make an application under Sub-section (1) of Section 13 of Act No. 22 of 1974 or to file a civil suit as envisaged under Sub-section (3) of Section 13 of the said Act without prescribing any guideline between similarly circumstanced agriculturists amounts hostile discrimination within the meaning of Article 14 of the Constitution of India and run counter to the doctrine of equality.
30. As a result of the aforementioned discussion, the office of the Registry is hereby directed to place the complete record of this case before Hon'ble the Chief Justice for constituting a Larger Bench under the Rajasthan High Court Rules to reconsider the decision rendered by the learned Single Judge of this Court in case of Daulat Ram (supra).