Mohamad Abdullah Dar and another vs Mohamad Akbar

Jaswant Singh, J.—In suit No. 234 of 1963 instituted in the Court of the Subordinate Judge. Baramulla, by the respondent for rendition of

accounts and dissolution of partnership which came into existence between the parties by virtue of an instrument of partnership dated June 21,

1961, the defendants-petitioners inter alia pleaded that they were agriculturists and the suit was triable under the Agriculturists' Relief Act. 1983.

The trial court thereupon raised a preliminary issue to the following effect:-

Whether the defendants depended for their livelihood on agriculture and as such the suit is triable under the Agriculturists' Relief Act

Unfortunately it took the trial court well-nigh seven years to bring the evidence of the parties regarding the above noted simple issue to conclusion

and it was not before July 30, 1971, that the court by a perfunctory order was able to determine the issue against the defendants holding that they

being registered contractors of the Public Works Department could not be allowed to take refuge behind the Agriculturists' Relief Act which was

meant primarily for those persons whose sole source of livelihood was cultivation of land. Aggrieved by this order the defendants came up in

revision to this Court which was placed for hearing before Mufti. J. Relying upon a Division Bench decision of this Court reported in 1969 Kash

LJ 343, the learned counsel appearing on behalf of the respondent contended before the learned Judge that the question whether the defendants

were agriculturists or not was irrelevant in that the present suit was based upon partnership where there is no relationship of creditor and debtor

between the parties when alone the Agriculturists Relief Act, 1983 could be applicable. On the other hand it was urged before the learned Judge

on behalf of the petitioners that Section 3 of the Act applied to various categories of suits including those in which the liability of an agriculturist may

arise from a written or unwritten engagement for payment of money, that the liability arising from a partnership transaction was not excluded from

the purview of the Act and that the decision reported in 1969 Kash LJ 343 (supra) where it was held that the Act was never intended to apply to

big partnership transactions where there was no relationship of a lender or a debtor but where parties invested money or other assets to carry on

some business required reconsideration. Feeling that the contentions raised by the learned counsel for the petitioners could not be summarily

rejected as unfounded and deserved serious consideration, the learned Judge formulated the following question for determination by the Full

Bench.

What is the true scope of Section 3 of the Agriculturists' Relief Act? Is its application confined to suits in which the defendant is an agriculturist and

relationship is that of a creditor and debtor between the parties or also to the suits in which no such relationship exists and yet some money is due

from such agriculturist defendant and more particularly whether it applies to suits for rendition of accounts based on partnership in which one of the

parties is an agriculturist"".

We have heard learned counsel for the parties who have reiterated the contentions and submissions raised and made by them before the learned

Single Judge.

For a proper determination of the question referred to this Bench, it is necessary to advert to Section 3 of the Agriculturists' Relief Act, which

runs as under:-

Except as may hereinafter be otherwise provided, the provisions of this Act apply to-

(a) Suits for an account instituted by an agriculturist under the provisions hereinafter contained: and

(b) Suits, in which the defendant, or any one of the defendants, is an agriculturist, for the recovery of money alleged to be due to the plaintiff.

--------on account of money lent or advanced to, or paid for the defendant, or as the price of goods sold, or -------- on an account stated

between the plaintiff and the defendant, or On a written or unwritten engagement for the payment of money not hereinbefore provided for.

A careful study of the provisions as set out above and of the allied provisions contained in Section 10 of the Act would show that although the Act

was primarily intended to relieve agricultural indebtedness and to deal with transactions between money lenders on the one hand and the

agriculturists debtors on the other, the scope of the Act goes beyond the object declared in its preamble and extends also to transactions in which

there is an undertaking or promise, whether verbal or written for payment of money. The language of the last portion of Section 3 of the Act is in

my opinion, wide enough to cover even partnership transactions provided the undertaking to pay money can be spelt out from the instrument of

partnership or other relevant material.

I am fortified in my opinion by a Division Bench decision of the Sind Chief Court in Rakhialkhan v. Choithram, AIR 1944 Sind 176, where

while interpreting identical provisions of clauses (w) and (x) of Section 3 of the Dekkhan Agriculturists' Relief Act, 1879 it was held :

The words of clauses (w) and (x) are very wide. The object of the legislature appears to be to include within clauses (w) and (x) all claims of a

pecuniary character arising out of contracts, whether written or unwritten and to bring them within the special jurisdiction created by the Act. The

claim of the plaintiff is now undoubtedly one for money arising out of a written agreement for the payment of money. In para. 3 of Ex. 146 the

Zamindar binds himself to pay off his previous debt, and the appellant relies on this paragraph to bring the suit within clause (w).

We think, however, that a contract of partnership is just as much a contract as is a contract for the payment; of money. We can see no reason,

applying the principle followed in (1897) 9 Bom PJ 167, why this suit should not also fall within CI. (x). We think, therefore, accounts must be

taken between the parties in accordance with the provisions of the Dekkhan Agriculturists' Relief Act, Accounts must, therefore, be taken from the

beginning of the partnership that is, from the year 1886 and for these accounts plaintiffs will be the accounting party.

It may be noticed that in Mst. Fatta v. Qadir Wani, 1949 Kash LJ 343 (supra), the learned Judges while coming to the aforesaid conclusion that

the Act was not intended to apply to partnership transactions mainly relied upon the object of the Act as set out in its preamble. It is, however, well

settled that though the preamble of a Statute can be used as a key to interpret its provisions, it cannot be used to defeat restrict or extend the

enacting part when the language and the object and scope of the Act are not in doubt. It will be useful to refer at this stage to the following passage

occurring at page 45 of Maxwell on Interpretation of Statutes. Eleventh Edition:

It is not unusual to find that the enacting part is not exactly co-extensive with the preamble. In Acts of Parliament, although a particular mischief is

recited, the Legislative provisions extend beyond it. The Preamble is often no more than a recital of some of the inconveniences. and does not

exclude any others for which a remedy is given by the Statute. The evil recited is but the motive for legislation: the remedy may both consistently

and wisely be extended beyond the cure of that evil, and if on a review of the whole Act a wider intention than that expressed in the Preamble

appears to be the real one, effect is to be given to it notwithstanding the less extensive import of the preamble.

The context of the preamble is not to influence the meaning otherwise ascribable to the enacting parts unless there is a compelling reason for it.

It will also be advantageous in this connection to refer to the following observations made in R. Venkataswami Naidu and Another Vs. Narasram

Naraindas, :

No resort to the preamble would be justified in interpreting the provision in the Act when the words used in it are clear and unambiguous.

A preamble is a key to the interpretation of a Statute but is not ordinarily an independent enactment conferring rights or taking them away and

cannot restrict or widen the enacting part which is clear and unambiguous. The motive for legislation is often recited in the preamble but the remedy

may extend beyond the cure of the evil intended to be removed.

Again in Maria Antonica Rodrigues Vs. D.R. Baliga and Others, . Gokhale, J. said:

While it is permissible to look at the preamble for understanding the import of the various clauses contained in the Act, full effect has to be given to

the express provisions of the Act even though they appear to go beyond the terms of the preamble. Where the language of the Act is clear, the

preamble must be disregarded.

In Davies v. Kennedy, (1869) 3 Eq 668, 697(Ir) Christian L. J., put a restrictive meaning upon the word ""banker"" as used in 33 Geo 2, c. 14

(lrish), and in support of his view of the meaning of the word he relied largely upon the preamble of the Act. In the House of Lords, however, on

appeal, Lord Chelmsford said:

Undoubtedly if there is any ambiguity in the language of the enactments the preamble might be used as an interpreter. but plain and unambiguous

words must receive their full sense and cannot be restrained by the preamble; for where an Act is introduced to remedy a particular mischief, that

object may be recited in the preamble and then the Act may go on to provide generally against all mischiefs of a similar nature. ""The enactment was

held here not to be controlled by the preamble."" (See Sub-non Copland v. Davies, (1870) 5 HL 358. 389).

Keeping the above principles in view, I am of the opinion that the preamble of the Act cannot control or restrict the plain meaning of Section 3 of

the Act, that the section is of wide amplitude, and even suits based on partnership agreements and other category of suits in which liability of an

agriculturist for payment of money does not arise from the fact that some money was lent or advanced to him, would fall within the purview of the

Act.

Accordingly I would answer the question referred to the Bench as follows:-

Section 3 of the Agriculturists Relief Act is not confined in its application to suits in which there is a relationship of creditor and debtor between the

parties but also extends to suits in which no such relationship exists and yet some money is due from an agriculturist. The section also applies to

suits for rendition of accounts based on partnership in which one of the parties is an agriculturist.

In the above view of the matter, the decision reported in 1969 Kash LJ 343 (supra) would stand overruled.

Let the file now go back to the learned Single Judge for disposal of the revision petition on its merits.

S. M. F. Ali, C. J.

I agree.

Mufti Baha-ud-din Farooqi, J

I also agree.