Punjab-Haryana High Court
Sita Ram And Ors. vs Bashi Ram Gobind Singh on 8 September, 1961
Equivalent citations: AIR1962P&H239, AIR 1962 PUNJAB 239, ILR (1962) 1 PUNJ 190
Author: I.D. Dua
Bench: I.D. Dua
JUDGMENT Mahajan, J.
(1) This entire matter falls for determination by this Full Bench in pursuance of an order made by Bishan Narain and I. D. Dua, JJ. on the 5th of April, 1960. The sole question that requires determination is whether the provisions of Order IX, R. 9 of the Code of Civil Procedure--hereinafter referred to as the Code--apply to the dismissal in default of an application under section 10 of the Displaced Persons (Debts Adjustment) Act (No. 7 of 1951)--hereinafter referred to as the Act.
(2) The facts out of which this matter arises may now be briefly stated. The parties to this litigation are displaced persons from West Pakistan. Brij Lal and his two brothers had mortgaged their house in Pakistan to one Bashi Ram for a sum of Rs. 10,000/-. This mortgage was effected on the 13th of September, 1946. In the year 1947, partition of India came about and the mortgagors and the mortgagee migrated to India. A variety of legislation was enacted in the wake of partition and the present Act is one of them. The Act, as will be clear from its preamble, was enacted to make certain provisions for the adjustment and settlement of debts due to them and for matters connected therewith or incidental thereto. This Act came into force on the 10th of December, 1951, in the State of Punjab.
Bashi Ram mortgagee made an application under section 10 of the Act against all the mortgagors to get a first charge created on the compensation, if any, payable to the mortgagors in respect of the mortgaged property. This application was dismissed in default in the presence of mortgagor's counsel. However, no steps were taken by the mortgagee to get the order of dismissal set aside, either under the Code or by recourse to the inherent powers of the tribunal. Instead a fresh application under section 10 of the Act was preferred and he obtained a decree against the mortgagors other than Brji Lal. Therefore, so fat as Brji Lal is concerned, the proceedings in the second application have no effect. However, on the 18th of May, 1953, Bashi Ram made a fresh application under section 10 of the Act against the minor sons of Brji Lal Brji Lal having died in the meantime. This application was contested on the short ground that the second application was not maintainable after the first one had been dismissed in default.
Other objections were also raised, but we are not now concerned with the same. The tribunal rejected this and the other objections of the sons of Brji Lal and passed a decree against them. Their appeal was dismissed by Gurnam Singh, J. However, an appeal under Clause 10 of the Letters Patent by the sons was heard ex parte and was allowed by Bhandari, C. J., and Falshaw, J. on the 25th of September, 1959. Bashi Ram applied for setting aside this ex parte decision and the same was set aside by Dulat and Dua, JJ., on the 24th of November, 1959. Thereafter, this Letters Patent appeal was set down for hearing before Bishan Narian and Dua, JJ., and, as already pointed out, has been referred for decision by a large Bench.
(3) It is not disputed that in case the provision of O. IX, R. 9 of the Code apply to the case of dismissal in default of an application under section 10 of the Act the appeal must be allowed. The contention of the learned counsel for the appellants is that by reason of section 25 of the Act, the Code applies to all proceedings under the Act and, therefore, the dismissal in default would be covered by the provisions of the Code and the consequences envisaged in that provision would come into play.
On the other hand, it is contended by the learned counsel for the mortgagee, Bashi Ram, that section 3 read with section 44 of the Act excludes the applicability of O. IX, R. 9 of the Code, that the right conferred on a party under O. IX R. 9 of the Code is a substantive right and section 25 of the Act does not make the substantive provisions of the Code applicable to proceedings under the Act but only the procedural provision of the Code are made applicable; and that the provisions of O. IX, R. 9 of the Code apply only to proceedings in a Court of civil jurisdiction and the tribunal under the Act is not a Court of civil jurisdiction; therefore the provisions of O. IX, R. 9 of the Code have no application to a case of dismissal in default of an application under section 10 of the Act.
(4) Before these arguments are examined, it will be proper to examine carefully the scheme of the Act. I have already set out the preamble of the Act in the earlier part of his judgment. Section 2 is the definition section and therein a 'displaced creditor; means a displaced person to whom a debt is due from any other person, whether a displaced person or not; a 'displaced debtor' meant a displaced person from whom a debt is due or is being claimed; and a 'displaced person' meant any person who, on account of the setting up of the Dominions of India and Pakistan, or an account of civil disturbance or the few of such disturbances in any area now forming part of West Pakistan, has, after the 1st day of March, 1947 left, or been displaced from, his place of residence in such area and who has been subsequently residing in India and includes any person who is resident in any place now forming part of India and who for that reason is unable or has been rendered unable to manage, supervise or control any immovable property belonging to him in West Pakistan, but does not include a banking company.
Section 3 gives over-riding effect to the Act, rules and orders wherever they are inconsistent with any other law and is in these terms:
"3. Save as otherwise expressly provided in this Act, the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any decree or order of a Court, or in any contract between the parties."
Section 5 deals with applications by displaced debtors for adjustment of their debts and is in these terms:
"5. (1) At any time within one year after the date on which this Act comes into force in any local area a displaced debtor may make an application for the adjustment of his debts to the Tribunal within the local limits of whose jurisdiction he actually and voluntarily resides, or carries on business or personally works for gain.
(2) Every application by a displaced debtor shall contain the following particulars, namely:
(a) the place where he resides;
(b) the trade calling, profession or other employment in which he is now engaged and in which he was engaged in West Pakistan before he became a displaced person;
(c) his average annual income in India during the three years immediately preceding the application;
(d) the income-tax and super-tax, if any, to which he has been assessed for the three years immediately preceding the application;
(e) such other particulars as may be prescribed;
and shall be accompanied by the following schedules namely:
(i) a schedule containing full particulars of all his debts, whether owed jointly or individually, with the names and addresses of his creditors and joint debtors, if any, so far as they are known to, or can by the exercise of reasonable care and diligence be ascertained by him;
(ii) a schedule of all his properties, both movable and immovable (including claims due to him) which are not liable to attachment either under the Code of Civil Procedure 1908 (Act V of 1908), as amended by section 31 of the Act or under any other law for the time being in force a specification of the values thereof and of the places where the same may be found;
(iii) a schedule of all his properties, both movable and immovable (including claims due to him) which are not included in the schedule under item (ii) of this clause; and
(iv) a schedule of all his properties in respect of which a claim has been submitted to the registering officer under the Displaced Persons (Claims) Act 1950 (XLIV of 1950) and, where any order has been passed in relation to the verification and valuation of the claim under that Act, with a certified copy of the order.
(3) All persons whose names are shown in any schedule having claims against the displaced debtor and all persons whose names are shown as joint-debtors shall be deemed to be the respondents to the application, and there shall be filed along with the application or with the permission of the Tribunal at any later stage of the proceedings as many copies of the application and as many envelopes and notices in the prescribed form duly addressed to the respondents as there are respondents."
Section 10 deals with the claims by creditors against displaced debtors and is in these terms:
"10. Any displaced person having a claim against a displaced debtor may make an application in such form as may be prescribed, for the determination thereof to the Tribunal within the local limits of whose jurisdiction the displaced debtor actually and voluntarily resides, or carries on business, or personally works for gain, together with a statement of the debts owed to the creditor with full particulars thereof."
Section 13 deals with claims by displaced creditors against persons who are not displaced debtors and is in these terms:
"13. At any time within one year after the date on which this Act comes into force in any local area, any displaced creditor claiming a debt from any other person who is not a displaced person may make an application in such form as may by prescribed, to the Tribunal within the local limits of whose jurisdiction he or the respondent or, if there are more respondents than one, any of such respondents actually and voluntarily resides, or carries on business or personally works for gain, together with a statement of the debt owing to him with full particulars thereof."
Section 25 makes the provisions of the Code of Civil Procedure applicable and is in these terms:
"25. Save as otherwise expressly provided in this Act or in any rules made thereunder all proceedings under this Act shall be regulated by the provisions contained in the Code of Civil Procedure 1908 (Act V of 1908)."
Section 44 bars further applications in certain cases and is in these terms:
"44. Subjects to the other provisions contained in this Act, where an application made by a displaced debtor under section 5 or under sub-section (2) of section 11, or by a displaced creditor under section 13 has been dismissed, no further application for the same purpose shall lie."
Section 53 makes the Indian Limitation Act applicable and is in these terms:
"53. Subject to the other provisions contained in this Act, the Indian Limitation Act, 1908 (IX of 1908), shall apply to the institution of any proceeding under this Act, and, for the purpose of determining and computing the period of limitation prescribed by that Act in relation thereto every application made under this Act shall be deemed to be a suit for the purpose of that Act."
Wherever departure has been made from the Code of Civil Procedure, it has been specifically indicated, for instance, section 26 which requires the signing and verification of applications and written statements; section 30 which exempts arrest, section 31 gives further relief by amending section 60 of the Code; section 35 makes provision regarding taxation of lawyer's fees; section 44 has already been noticed, it provides bar of further applications in certain cases; section 45 is in pari materia with section 152 of the Code and gives power to the tribunal to rectify clerical or arthmetical mistakes; section 46 requires all notices to be served by registered post unless the tribunal for reasons to be recorded directs service in any of the other modes specified in the first schedule to the Code; section 48 makes the provisions of Order XXII of the Code inapplicable to proceedings under the Act and section 54 bars the applicability of Order XXXVIII of the Code to any proceedings under the Act.
The other provisions of the Act deal with the various reliefs, the manner and the mode in which they are to be granted to the displaced debtors or the displaced creditors. It cannot be disputed that the Act is a complete code in itself and makes a comprehensive provision for the purpose for which it has been enacted.
(5) Thus, it will be apparent that if this Act had not been enacted the remedy of a displaced debtor or creditor was by recourse to a regular suit, which remedy is not only cumbersome but is fraught with extraordinary delay in this country. The very scheme of the Act shows that the entire procedure was sought to be simplified as far as possible so that the envisaged reliefs under the Act were speedily and effectively available. For that reason, only one appeal is provided to the High Court. The charging of ad valorem court-fee is dispensed with and the matter qua a debtor regarding all his liabilities is sought to be settled at one time and place and in one proceeding, rather than in different proceedings, which would have bee the case if such persons had been left to have their recourse to the ordinary remedies at law.
(6) This brings me to the consideration of the real question that has been debated before us, namely, whether Order IX, Rule 9 of the Code applies to an order of dismissal in default of an application under S. 10 of the Act. Section 25 of the Act makes the Code applicable to all proceedings under the Act unless there is an express provision in the Act contrary to the Code. Section 3 of the Act gives over-riding effect to the Act vis-a-vis the other laws where those laws are inconsistent with the Act. This provision virtually reinforces the opening words in section 25 "save as otherwise expressly provided" because the same words occur in section 3 as well. Therefore, in substance a close reading of these two provisions amounts to this that unless there is an express provision in the Act contrary to the Code, the Code will apply as such to all proceedings under the Act. Now what has to be considered is the effect of section 44 of the Act vis-a-vis Secs. 25 and 3 of the Act.
This is necessary in view of the contention advanced by the learned counsel for the respondent that if the object of the legislature was that all dismissals in default are to be governed by Order IX, Rule 9, of the Code, there was no need to enact Section 44 for it covers the same ground as is covered by Order IX, Rule 9 of the Code. I do not understand how this argument helps the respondent. If the provisions of Section 44 apply to dismissals in default of the applications specified in Section 44, then section 44 being an express provision to the contrary, section 25 will not come into play and the provisions of Order 9, Rule 9 would automatically be ruled out. If, however, section 44 does not contemplate dismissals in default but merely contemplates dismissals on merits of the applications specified therein, then there is no express provision in the Act covering such dismissals in default; and, therefore, by virtue of section 25, these dismissals in default would be covered by Order IX, Rule 9 of the Code.
I am very doubtful if section 44 was enacted to cover dismissals in default of the applications specified therein. This provision, in my opinion, was enacted to cover dismissal of an application on the merits, and is more or less analogous provision to section 11 of the Code; or in other words it is a provision making the rule of res judicata applicable to the dismissal of applications under the Act. Moreover, section 44 does not cover the case of dismissal of an application by the creditor under section 10. It merely covers the cases of dismissal of applications by the debtors under Secs. 5 and 11(2) and by the creditors under Section 13 of the Act. The present application, which was dismissed in default, is neither of these applications. It is an application by a creditor under Section 10 of the Act and is not covered by Section 44. Therefore, there being no provision to the contrary in the Act the provisions of Order IX, Rule 9 of the Code would by reason of section 25 of the Act apply to such a dismissal.
Wherever the legislature thought fit to make a departure from the Code, they specifically did so: and when there is no specific provision covering proceedings under the Act, recourse must be had to the procedure in the Code for the simple reason that section 25 of the Act makes the Code applicable to all proceedings under the Act. It cannot be disputed that an application under Section 10 of the Act by a creditor is a proceeding under the Act. If there is a default on the part of the applicant to appear, the tribunal would be justified to dismissal according to Order IX, R. 8 of the Code unless the respondent admits the claim. That dismissal according to Order IX, Rule 9 of the Code will be final unless set aside. I am, therefore, of the view that the provisions of Section 44 of the Act are not inconsistent with the provisions of the Code rather, in any case, so far as the present application is concerned, it being not covered by section 44 of the Act, must necessarily be governed by the Code by reason of Section 25 of the Act.
(7) The other argument addressed was that only procedural provisions of the Code have been made applicable and not the substantive provisions of the Code. So far as section 25 of the Act is concerned, it makes no such distinction. It applies the Code in its entirety to the proceedings under the Act, the only exception being that the Code will not apply where in the Act there are express provisions, which are contrary to the Code. It will not make any difference if the provisions in the Act are parallel to the provisions in the Code for in the later eventuality no difficulty arises, the case being merely one of duplication. Moreover, the right to present applications under Secs. 5, 10 or 13 of the Act no doubt are substantive rights, but the impediment is not that an application cannot be presented. The moment an application is presented, it will be entertained; but it will be dismissed if it is found that an earlier application had been made and dismissed either on the merits or in default. So far as the case of dismissal on merits is concerned, the matter will not be open to review unless, of course, the dismissal on merits was ex parte and that too if proceedings to set aside the ex parte decision were taken.
So would be the case where dismissal in default is under Order IX, Rule 8. Unless that dismissal is got set aside under Order IX, Rule 9 of the Code by reason of Order IX, Rule 9, the dismissal becomes final and no fresh application is entertainable. Wherever the legislature intended that fresh successive applications may be filed in spite of the dismissal of such applications, no bar was provided in the Code, for instance, execution applications and applications dismissed under Order IX, Rule 3 of the Code. Of course, the bar of limitation would operate by virtue of the provisions of the Indian Limitation Act, but that has nothing to do with the maintainability of the application. Therefore, in view of the clear provisions of the Code which do apply to all proceedings under the Act, the argument that a distinction must be kept in view between the procedural and the substantive provisions of the Code has no meaning.
(8) The other argument addressed was that what was the need of enacting section 44 of the Act for the matters covered by section 44 are already dealt with in the code in section 11 and Order IX, Rule 9. It was stressed that the legislature would not enact parallel provisions unnecessarily and there must be some meaning for the specific enactment of section 44. So far as I can make out, the reason may be two fold. Firstly, as a matter of abundant caution Section 44 was enacted.
In a number of statutes, this situation does arise. Moreover section 11 of the Code to which section 44 of the Act is analogous specifically applies to suits. There are any number of decisions, and this fact was not disputed, that section 11 does not apply in terms to execution proceedings and yet it has been held times out of member that the general principles of res judicata do apply to execution proceedings though section 11 in terms does not. Under the Act certain applications have to be tried and the legislature may have well thought that as these applications would not be covered by the specific terms of section 11 of the Code, it was necessary to provide a specific provision in the shape of section 44.
Secondly this argument proceeds on the assumption that section 44 covers the case of dismissal in default of certain applications mentioned therein. As I have already said, I am extremely doubtful if section 44 covers the dismissal in default of the applications mentioned therein, but even if it does cover the same it is nothing more than a parallel provision and, in any case, the application with which we are dealing is certainly not covered by section 44; and according to the opening words of this section namely "subject to the other provisions contained in this Act" only the specific applications mentioned in section 44 would be governed by thus section. Therefore, it will not follow that because the application like the present is not covered by section 44, therefore, the omission of it from this section necessarily means that it was intended to be omitted from the applicability of O. IX, R. 8 or O. IX, R. 9 of the Code.
(9) In view of what has been stated above, it is not necessary to have recourse to section 141 of the Code for the simple reason that section 25 of the Act provides for the same contingency in case of proceedings under the Act as does section 141 of the Code with regard to proceedings in any Court of civil jurisdiction; but even otherwise section 141 cannot be ruled out on the argument that the tribunal under the Act is not a Court of civil jurisdiction. This matter is not res integra. In Sobh Raj v. Boda Ram, Civil Revn. No. 325 of 1953 D/- 26-11-1954, by a Division Bench of this Court presided by Khosla, J., (now Chief Justice), it was held that the tribunal constituted under the Act is a civil Court. I am in respectful agreement with this decision.
I may also refer to a Full Bench decision of the Lahore High Court in Works Manager, Carriage and Wagon Shops Moghalpura v. K. G. Hashmat, 1946-48 Pun LR 477: (AIR 1946 Lah 316)(FB) wherein the question was whether an authority under the Payment of Wages Act is a Court subordinate to the High Court, and it was held that the authority was a Court subordinate to the High Court. In my view the reasoning which prevailed with the Full Bench in that case fully applies to the present case. I would, therefore, hold that for the purposes of section 141 of the Code, the tribunal under the Act is a Court.
(10) For the reasons given above, I am of the view that the decision in Girdhari Lal v. Panna Lal 1957-59 Pun LR 433, holding that the provisions of Order IX, Rule 8 and Order IX, Rule 9 of the Code apply to the dismissal of applications under the Act is correct.
(11) In the result, this appeal is allowed and the decisions of the learned Single Judge and of the Court below are set aside; and the creditor's application under section 10 of the Act is dismissed. However, in the circumstances of the case, there will be no order as to costs.
Dua, J.
(12) I have read the judgment prepared by my learned brother D. K. Mahajan, J, and I agree that the provisions of O. IX, Rr. 8 and 9 of the Code of Civil Procedure apply to the present case. I would, however, like to add a few words of my own because I am disinclined, as at present advised to express any well-considered opinion on the point whether or not a Tribunal constituted under the Displaced Persons (Debts Adjustment) Act, LXX of 1951, and an Authority under the Payment of wages Act are civil Courts subordinate to the High Court. The unreported decision of a Division Bench of this Court (G. D. Khosla, J. as the then was and Bishan Narain, J.) in Civil Revn. No. 325 of 1958, D/- 26-11-1954 (Punj), was not cited by the appellant's counsel in his opening address and was brought to our notice only when he was replying to the respondent's arguments. Similarly, our attention was drawn to the Full Bench decision of the Lahore High Court in 48 Pun LR 477: (AIR 1946 Lah 316), only when the appellant's counsel was replying to the respondent's arguments. The result is that we have not had the benefit of full-dress argument on these points. I am therefore unable to adopt the reasons on which those decisions proceed.
(13) It is necessary here to state that the question whether or not the Authority constituted under the Payment of Wages Act is a civil Court subordinate to the High Court is by no means easy to answer. There is a respectable mass of instructive literature by eminent Judges whose opinions are entitled to great respect. In Hashmat's case' 48 Pun LR 477: (AIR 1946 Lah 316)(FB), the Full Bench consisted to very emient Judges whose observations command great respect but in view of the fact that this point has not been fully and properly debated before us, I should prefer to abstain from expressing any considered opinion on this point in the present case. My hesitation is hazarding an opinion on this point at the present moment is to a very large extents due to the fact that I am myself aware of quite a number of decisions, also by eminent Judges (including Full Bench decisions), taking a contrary view and expressing positive dissent from the decision in Hashmat's case, 48 Pun LR 477: (AIR 1946 Lah 316)(FB). Some of the decisions which have to my knowledge taken a contrary view are:
(1) H. C. D. Mathur v. E. I. Railway, AIR 1950 All 80 (FB);
(2) Spring Mills Ltd. v. G. D. Ambekar, AIR 1949 Bom 188;
(3) Sitaram Ramcharan v. M. N. Nagrashna, AIR 1954 Bom 537 (Chagla C. J. and Dixit J.);
(4) Sawatram Ramprasad Mills Co. Ltd. v. Vishnu Pandurang, AIR 1950 Nag 14 (Hidayatullah and R. Kaushalendra Rao, JJ);
(5) Labangalata Dei v. Sk. Azizullah, AIR 1958 Ori. 123 (S. Barman, J.);
I am also aware of some decisions by eminent Judges approving of the decision in Hashmat's case 48 Pun LR 477: (AIR 1946 Lah 316)(FB). Hasan v. Mohammad Shamsuddin, AIR 1951 Pat 140 (Das and Sarjoo Prosad JJ.) is one of those cases. In this case however a Full Bench decision of the Patna High Court in Mt. Dirji v. Smt. Goalin, ILR (1941) 20 Pat 373: (AIR 1941 Pat 56) which had been approved by the Lahore High Court in Hashmat's case 48 Pun LR 477: (AIR 1946 Lah 316)(FB), was followed.
(14) At this stage it would not be out of place to consider in passing some of the cases cited at the Bar in Hashmat's case 48 Pun LR 477: (AIR 1946 Lah 316) (FB). The view of Bobda J. in Shrinivas Laxmanrao v. Superintendent Government Pringint Press Nagpur, ILR 1944 Nag 540: (AIR 1945 Nag 94) was approved in Hashmats cases, 48 Pun LR 477: (AIR 1946 Lah 316)(FB) as against the view of Vivian Bose, J. as expressed in Turabali v. Sorabaji, AIR 1944 Nag 288. It is, however not worthy that in Sawatram's case, AIR 1950 Nag 14, a Division Bench or the same Court later expressly overruled Shrinivasa's case ILR (1944) Nag 540: (AIR 1945 Nag 94) and agreed with the conclusions of Vivian Bose J. in Turabali's case, AIR 1944 Nag 288, though for different reasons.
Reference as also made in Hasmat's case 48 Pun LR 477: (AIR 1946 Lah 316)(FB) to another decision of the Nagpur High Court by the same Judge in Debidutt Dube v. Central India Electrical Supply Co. ltd. Lahore, ILR 1945 Nag 587: (AIR 1945 Nag 244), when the district Court while acting under S. 17 of the Payment of Wages Act was geld to be subordinate to the High Court. The learned Judge there noticed the conflict in that Court between the two Single Bench decisions mentioned earlier and observed that if the point on which the two Single Judges had expressed conflicting views called for decision in the case before him, he would have referred the question to a lager Bench. The matter, however, was actually referred to a Division Bench latter in Sawatram's case AIR 1950 Nag 14, and the view of Bose. J. was approved.
(15) A Full Bench of the Patna High Court (Harries C. J., Fazl Ali and Manohar Lall JJ.) in ILR 1941-20 Pat 373: (AIR 1941 Pat 65), held the Commissioner appointed under the Workmen's Compensation Act to be a Court but whether he constituted a Court subordinate to the High Court was left open. Later, however, a Division Bench of the same High Court (Agarwala and Meredeith JJ.) in the same cases reported as Mt. Dirji v. Smt. Goalin, Air 1942 Pat 33, held the Commissioner to be a Court subordinate to the High Court. The judgment in this case hardly contains any illuminating discussion and it purports merely to follow a decision of the Bombay High Court in Balakrishna Daji v. Collector "Bombay Suburban", AIR 1923 Bom. 290. This decision of the Bombay High Court it may be mentioned, deals with Land Acquisition Act.
It is of some interest to note that another Division Bench of the Bombay High Court had, as far back as 1927, expressly held that a Commissioner under the Workmen's Compensation Act was not a Court within the meaning of section 115, Civil Procedure Code; vide Trustees of the Port of Bombay v. Bhima Raoji, Civil Revn. No. 255 of 1926, D/- 11-1-1927 (Bom) by Fawcett and Patkar JJ., noticed in the AIR 1949 Bom 188 at p. 191, column 1. The decision of Tek Chand J. in Firm G. D. Gian Chand v. Abdul Hamin, AIR 1938 Lah 855, that the Commissioner under the Workmen's Compensation Act is a Court, also does not throw much helpful high on the point in issue. Incidentally, it may be mentioned that Sitaram's case AIR 1954 Bom 537 was taken to the Supreme Court on appeal, but the same was dismissed vide Sitaram Ramcharan v. M. N. Nagrashana, AIR 1960 SC 260.
(16) There are also some other cases which may have some indirect relevance. For instance in J. C. Jain v. R. A. Pathak, AIR 1960 SC 619, the directions made under section 15(3) Payment of Wages Act were appealed against in the Small Cause Court at Bombay (the Appellate Authority) but the same was held incompetent. Against that decision appeal by special leave was preferred in the Supreme Court which was allowed. No revision had been filed in the High Court under section 115, Civil Procedure Code, from the decision of the Small Cause Court and no objection on this score was raised in the Supreme Court. In Shri Ambika Mills Co. Ltd. v. S. B. Bhatt, AIR 1961 SC 970, the decision of the Authority was challenged by way of appeal before the District Judge who was the Appellate Authority and the appellate decision was assailed in the High Court under Arts. 226 and 227 of the Constitution and not under S. 115, Civil Procedure Code.
The matter was further taken by way of special appeal to the Supreme Court, but the same was dismissed. In this case too the point that the matter was revisable by the High Court under section 115 Civil Procedure Code, does not seem to have been raised either in the High Court or in the Supreme Court. In Bombay Gas Company Ltd. v. Shri Dhar Bhan Prab, AIR 1961 SC 1196, so far as the facts can be ascertained from the report, it appears that from the decision of the Authority under the Payment of Wages Act an appeal by special leave was taken directly to the Supreme Court which was allowed. There too no objection was taken by the eminent counsel that the aggrieved party should have first approached the High Court under section 115, Civil Procedure Code, instead of going direct to the Supreme Court.
(17) In this Court also before a Division Bench consisting of Dulat and D. K. Mahajan, JJ. in Shree Gopal Paper Mills Ltd. v. Ram Labhaya Mal AIR 1960 Punj 375, the counsel for the management petitioner there did not seriously dispute that an Authority under the Payment of Wages Act was not a Court with the result that the Bench proceeded to consider the merits of the controversy under Art. 228 of the Constitution. Similarly, before me sitting singly in one case the parties virtually proceeded on the assumption that an Authority constituted under the Payment of Wages Act is not a Court subordinate to the High Court and the merits of the dispute there were also considered under Art. 227 of the Constitution; see Union of India v. Triloki Nath Bhasin, AIR 1961 Punj 154. It is thus obvious that on this point there is far from uniformity in the decided cases in the various High Courts of the Union with the result that it appeals to me to be highly undesirable and expedient to express any well considered opinion in the absence of proper full-dress arguments at the Bar.
(18) With respect to the Tribunal constituted under the Displaced Persons (Debts Adjustment) Act, our attention has undoubtedly been drawn by Mr. Sodhi in his final reply to the unreported decision a Division Bench of the this Court in Sobhraj's case, Civil Revn. No. 325 of 1953, D/- 26-11-1954 (Punj), holding that it is a Court subordinate to the High Court. In this judgment a reference has been made to the decision of the Patna High Court in A. Hasan's case AIR 1951 Pat 140, but it appears to me that the decisions taking a contrary view which had actually been discussed in A. Hasan's case, AIR 1951 Pat 140, were not relied upon at the Bar in Sobhraj's case, Civil Revn. No. 325 of 1953, D/- 26-11-1954 (Punj), for if they had been relied upon, I find no cogent reason for the Bench in omitting to consider then specifically.
The judgment of Hidayatullah, J. in Sawatram's case, AIR 1950 Nag 14, is detailed and exhaustive and contains illuminating and helpful discussion, and, had it been relied upon by the counsel I entertain little doubt that it would have been specifically noticed and considered by the Bench. The reasoning of the decision in Mohammad Safdar Ali v. Advocate-General AIR 1946 Oudh 244 (which has also been referred to by the Bench in Sobhraj's case, Civil Revn. No. 325 of 1953, D/- 26-11-1954 (Punj)), does not seem to me to be of much assistance.
(19) I am, however, also aware of another decision to the same effect by a Division Bench of this Court in Ram Labhaya v. Kirpa Ram, ILR 1955 Punj 490. It may be mentioned that although this decision was given in July 1954 the learned Judges deciding Sobhraj's case Civil Revn. No. 325 of 1953, D/- 26-11-1954 (Punj), in November 1954 came to an independent conclusion without their attention having been drawn to Ram Labhaya's case, ILR 1955 Punj 490. A learned Single Judge of the Patiala High Court has also taken a similar view in Union of India v. Gopi Chand, ILR 1954 Patiala 527; so has the Madhya Pradesh High Court in Maghanamal Narumal v. Mool Chand Gian Chand, AIR 1961 Madh Pra 193.
(20) Contrary views have, however, been taken by Single Judges of Allahabad and Rajasthan High Courts in Sunder Das v. Lachhman Das, AIR 1957 All 352 and Munshi Ram v. Hukam Singh, AIR 1960 Raj 235. A decision of the Allahabad High Court in Phul Kumari v. State, AIR 1957 All 495, also contains some relevant discussion on the question of subordinate contemplated by Section 115, Civil Procedure Code. In a Full Bench decision of our own High Court in Parkash Textile Mills Ltd. v. Messrs Mani Lal, (S) AIR 1955 Punj 197, J. L. Kapur, J. also made some observations to the contrary as is obvious from headnotes (c) and (f). His was no doubt a dissenting judgment on the main point which fell for determination there, but on this precise question which was the subject-matter of headnotes (c) and (f) the majority Judges do not seem to have expressed specifically and clearly any contrary opinion.
I am also conscious of the fact that according to the practice of this Court, revisions from decisions of the Tribunals have frequently been entertained and it might well be contended that the practice of the Court is the law of the Court. But at the same time it must not be forgotten that this Act was brought on the statute book in 1951. Therefore whether a revision is entertained under section 115 of the Code of Civil Procedure or under Art. 227 of the Constitution (and the power under Art. 227 can in my view also be exercised suo motu) the question can hardly be considered to be of any particular significance or materiality. Therefore this practice would obviously not be a conclusive or a decisive factor. For the reasons just stated I would thus abstain from expressing any considered opinion in the instant case on these questions and would like to leave them open to be decided on a more appropriate and suitable occasion when they are directly raised and properly canvassed and debated at the Bar. I should in the circumstances not be understood either to approve or to disapprove the reasoning and ratio of the decision either in Hashmat's case, 48, Pun LR 477: (AIR 1946 Lah 316)(FB) or in Sobharaj's case, Civil Revn. No. 325 of 1953, D/- 26-11-1954 (Punj).
(21) Reference to Full Bench is intended, by and large, to secure authoritative pronouncements on difficult questions of law or when there is a conflict of judicial opinion. It is therefore of paramount importance that opinions of the Full Bench mist not be formed and expressed too hastily. On the other hand authorised expression of opinion must proceed on the fullest possible consideration and discussion of all the aspects, keeping in view that great importance of precedents in our system of judicial administration. In my humble view, opinions on conflicting decisions should be expressed only after hearing full arguments and after considering the matter from all possible angles, for, an opinion lightly or hastily expressed would soon tend to invite or attract hostile criticism and challenge to its correctness and soundness.
(22) At this state it would perhaps not be wholly irrelevant to observe in passing that when the Government of India Act, 1935, was enforced and the power of judicial superintendence exercised by some of the High Courts under Section 107 of the Government of India Act 1915 was expressly taken away, there was discernible, to a certain extent, an unconscious tendency in the High Courts, perhaps psychologically prompted in the interest of justice, to place a more liberal construction on section 115 of the Code of Civil Procedure. The decisions of the Patna High Court relied upon in A. Hasan's case, AIR 1951 Pat 140 and the decision of the Lahore High Court in Hashmat's case, 48 Pun LR 477: (AIR 1946 Lah 316)(FB), perhaps illustrate this approach or tendency. But since I am disinclined to express any well considered opinion on this matter nothing more need be said on the present occasion.
(23) Now, coming to the provisions of the Displaced Persons (Debts Adjustment) Act, the main contention raised on behalf of the respondent is that the bar created by Section 44 of the Act is exhaustive and therefore by necessary implication it excludes the applicability of Order IX, Rule 9 Civil Procedure Code. The heading of this section, it is contended, points to the bar of fresh applications having been intended by the Parliament only in certain circumstances. In other cases, the bar, according to the submission, should be considered to have been impliedly prohibited. In this connection emphasis has been laid on the opening words of Section 25 of the Act by means of which express provisions in the Act or in any rules made thereunder have been saved. On behalf of the appellant, however, it has similarly been contended that by virtue of the opening words of Section 44 this section has been expressly made subject to the provisions of Section 25 and therefore necessarily subject to the provisions of the Code of Civil Procedure. It is also contended on behalf of the appellant that Section 44 might will have been included in the Act by way of abundant caution.
(24) After considering the matter from the various aspects argued and suggested at the Bar and devoting my most earnest attention to the question I am inclined to take the view that the Parliament did not intend by enacting Section 44 of exclude the applicability of Order IX Rules 8 and 9 of the Code of Civil Procedure to a case like the one before us. The rule of exclusion or the rule of implied negative, as it is sometimes called, on which reliance has been placed by the learned counsel for the respondent, is not one of substance but is merely a guide to the discovery of legislative intention. It is not a rule of law but is only an aid to construction. This rule merely suggests, that, if a statute directs an act to be done in a particular form or manner, it may legitimately be held to imply exclusion of every other manner, and, this if a statute introduces a new rule although couched in affirmative language, it implies the negative. This rule is, however, not a universal rule and is not to be arbitrarily applied.
An affirmative statutory provisions even though creating a new right does not necessarily destroy a previously existing right created by another statute unless the intention of the legislature is clear that the two remedies should not exist together. Indeed, this rule has to be applied and utilised in the light of all other rules of construction in order to ascertain the legislative intent. In the instant case section 25 clearly makes the provisions of the Code of Civil Procedure applicable in regulating the proceedings to the contrary contained in the Act. Now, Section 44 only contains express provisions with respect to dismissal of applications under Ss. 5, 11(2) and 13. The case in hand, however, arises out of an application under S. 10 of the Act which is not expressly provided in Section 44. In order, therefore, to exclude the applicability of Order, IX, Rule 8 and 9 Civil Procedure Code, to the instant case, we will have to interpret Section 25 so as to exclude even implied provisions contained in the Act. This, according to the known rules of statutory construction would hardly be permissible.
To uphold the contention of the respondents counsel we will have not only to apply the rule of exclusion in construing Section 44, but we will also have to read Sc. 25 to mean as if it stated "Save as otherwise expressly or impliedly provided in this Act or any rules thereunder * *". For this addition to the statute, which is otherwise clear, explicit and unambiguous, I do not fund any warrant. The use of the word 'expressly' in Section 25 appears to be deliberate and it will prima facie not include implied provisions. In this view of the matter, reading Section 25 of the Act with S. 141 of the Code of Civil Procedure Code, would appear to me to be properly attracted to the present case.
(25) Besides, in my opinion, the Parliament could also not have intended that a person should be permitted to go on filing unsuccessfully one application after another. It is one of the important principles to be observed in the administration of justice that litigants should be diligent in the conduct of legal proceedings and also no one should be twice vexed with the same cause of action it appears to me on this principle that the provisions of Order IX Civil Procedure Code have been enacted. To hold these provisions to be applicable to the present case, particularly when Section 44 is inapplicable, would obviously promote the ends of justice, and they can legitimately be held to have been intended by the Parliament to be attracted to the case before us. As to whether or not the provisions of Order IX, Civil Procedure Code, would also apply to applications under Ss. 5, 11(2) and 13 of the Act does not directly arise for decision in the present case and therefore I need express no opinion in it.
As to why the petitioners under Section 10 have not been included in Section 44, it is unnecessary for us to speculate. There does seem to be some distinction between the nature and scope of petitions under Section 10 and those under Secs. 5, 12(2) and 13 as also between the provisions of O. IX of the Code of Civil Procedure and Section 44 of the Act, but whether it can rationally explain the exclusion of Section 10 from section 44 is not easy to answer. The Displaced Persons (Debts Adjustment) Act is not an example of perfect and flawless draftmanship and there may be some good reason for it which is not discernible on its face. However, in the view that I have taken of the matter it is unfruitful to say anything more on this aspect.
(26) With these observations I agree that in the instant case the provisions of Order IX rule 8 and 9, Code of Civil Procedure, bar the second application, and I consider it unnecessary to go further than this. Since the whole case is before us for disposal, the appeal has to be allowed and the respondent's application under Section 10 of the Act dismissed, with no order as to costs.
Bedi, J.
(27) The sole question which was referred to this Bench for decision was whether the provisions of Order IX, Rule 8, and Order IX, Rule 9 of the Code of Civil Procedure apply to the dismissal in default of an application under Section 10 of the Displaced Persons (Debts Adjustment) Act (N0. 70 of 1951). I had the advantage of going through the judgments of my learned colleagues. The question has been dealt with by them very lucidly, and I am to complete agreement with them that the answer to the question referred to this Bench should be in the affirmative, that is to say, the provisions of Order IX, Rules 8 and 9 of the Code do apply to applications under S. 10 of Act No. 70 of 1951 mentioned above.
(28) The second point which was discussed by them was whether the Tribunal constituted under the Act is a civil Court. Mahajan J. relying on Civil Revn. No. 325 of 1953, D/- 26-11-1954 (Punj) by a Division Bench of this Court, and also relying on the Full Bench decision of the Lahore High Court 48 Pun LR 477: (AIR 1946 Lah 316)(FB), held that for the purposes of Section 141 of the Code of Civil Procedure, the Tribunal constituted under the Act is a Civil Court. Dua J., however, after discussing a number of cases for and against the above proposition came to the conclusion that without hearing full-dress arguments on the point at issue it would be undesirable and inexpedient to express any well-considered opinion on the same. As this point was not the subject-matter of reference to the Full Bench, it is desirable that before expressing any authoritative view on the subject detailed arguments should be heard.
AF/D.H.Z. (29) Appeal allowed.