Jagdish Barshad vs Vir Singh

Kapur, J.—This rule is directed against an appellate decree of the learned Senior Subordinate Judge, Ferozepore, affirming the decree of the trial Court that the civil Court had no jurisdiction to decide the matter.

The Plaintiff Jagdish Pershad brought a suit against Vir Singh for recovery of Rs. 244 and odd on the basis of a bond dated 4-5-1943. On 5-2-1947 the debtor Vir Singh made an application to the Debt Conciliation Board, Ferozepore, alleging that the document in question was without consideration, had been obtained by undue influence, that he (Vir Singh) had paid a large amount of money and that the claim was fictitious. On 21-8-1948, the Board discharged the debt holding the debt of Jagdish Porshad to be bogus. Upon this the trial Court dismissed the suit holding that the order of the Debt Conciliation Board was binding on the parties and that the civil Court had no jurisdiction to proceed with the suit, which on appeal was affirmed by the learned Senior Subordinate Judge.

The sole point for determination is whether the finding of the Board is final so as to exclude the jurisdiction of the civil Courts. u/s 9, Punjab Relief of Indebtedness Act, 1934, any debtor can apply to the Board to effect a settlement between him and his creditors. In order to be eligible for making an application the person applying must be a debtor-of course I am not considering the case of creditors. A debtor u/s 7(2) of the Act has boon defined as "a person who owes a debt", etc. The submission of the Petitioner in the present case is that Vir Singh could not apply to the Board for conciliation as in his petition to the Board he did not admit owing a debt to the creditor. No settlement can be brought about between a person who is not a debtor and consequently can have no creditors. In this connection reliance is placed on a Pull Bench judgment of the Lahore High Court in Qumar-ud-Din v. Kisan Das AIR 1945 Lah. 223 : (221 I.C. 107 F.B.), where the question to be decided was whether a person who pleaded discharge of his debt could be termed a ''debtor'' within the moaning of Section 7 of the Act, and it was held that such a person was not a debtor and he could not become one merely because he added to his allegations that if it was found that a debt was due from him then instalments may be ordered. Section 15A of the Act was also considered in that case and it was held that that section would not apply whore a person did not admit his position of being a debtor within the meaning of the Act. Section 15A is as follows:

If a creditor or debtor, as the case may be, challenges the genuineness or enforceability of any debt included in an application, the Board shall adjudicate upon the issue.

And this section has been strongly relied upon by the Counsel for the opposite party before me. His submission is that in a case where a person pleads that there is a document mentioning a debt but it is not genuine, then the matter has to be decided by the Board itself. With this submission I am unable to agree. Section 15A presupposes that a person applying is a debtor and only in that case can he challenge the genuineness or the enforceability of any particular debt. It may be that this section is inconsistent with Section 7(2) of the Act, but because of mistakes and inaccuracies in legislative enactments, the Court cannot allow its jurisdiction to be taken away.

This is a well-known principle that exclusion of the jurisdiction of the civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. (See Qumar-ud-Din v. Kislian Das AIR 1945 Lah. 223 : (221 I.C. 107 F.B.), and the cases relied therein at p. 225.)

If a person alleges or pleads that there was a debt due but the debt has been paid off he, according to the Hull Bench judgment mentioned above, does not come within the mischief of the Punjab Relief of Indebtedness Act. In principle, I cannot see why it should make any difference if he pleads or alleges that the debt never existed. In either case ho is not accepting the position that he owes a debt. The rule laid down in the Full Bench judgment, in my opinion, would cover the cases like the present whore the plea taken is that the debt never existed. As a matter of fact the correct way of looking at the question is that the plea of Vir Singh was that he had paid a large amount of money which had covered the debt claimed by Jagdish Pershad and if he has not so paid then it should be taken to be a fictitious debt. In either case in my opinion the rule laid down in the Full Bench judgment applies and the jurisdiction of the civil Court cannot be excluded for that reason.

In the result this petition is allowed and the judgment and decree of the learned Senior Subordinate Judge are set aside and the rule is made absolute. The costs will be costs in the cause. The case is remanded to the learned trial Judge for trial in accordance with law. The parties have been directed to appear before the learned trial Judge on 4-12-1950.