Mst. Chahi Devi and Others vs Jita

Dua, J.—Ratti Ram instituted the present suit for the recovery of Rs. 500/- on 10th June, 1957. It appears that a plea was raised that the plaintiff was a money-lender and should, therefore, produce a valid registration certificate under the Pepsu Money Lenders'' Act (Act No. 8 of 1956). Proceedings in the suit were thus stayed on 5th August, 1957. Apparently, on account of the provisions of section 22 of the Act, it also appears that the necessary rules under the statute were not framed for some time after the enforcement of the Act with the result that it took the plaintiff some time to secure the necessary certificate. The requisite certificate ending 31st December, 1959 was ultimately secured. The next date in the suit was fixed for 9th January, 1960 but, as luck would have it, on 8th January, 1960 Ratti Ram died. On 6th February, 1960 the legal representatives of Ratti Ram applied for the restoration of the suit which was restored on 22nd June, 1960. It was decreed on 13th October, 1960.

An appeal was taken to the Court of the Senior Subordinate Judge, Sangrur. It appears that the judgment-debtor-appellant, inter alia, raised the contention that the licence produced on behalf of the plaintiff related to the year 1959 which expired on 31st December 1959 and that at the time of the decree or even at the time of the restoration of the suit, the plaintiff did not possess any licence. It was also urged that in the defendant''s reply dated 6th February 1960, restoration of the suit was objected to on this ground. On behalf of the decree-holder it was argued that Ratti Ram had died on 8th January 1960 and that his legal representatives could not be considered to be money-lenders within the Pepsu Money-lenders'' Act.

The learned Senior Subordinate Judge, however, came to the conclusion that the legal representatives and successors-in-interest of a money-lender fell within the definition of the expression "money-lender" and, that, therefore, the legal representatives of Ratti Ram should have secured the requisite certificate. It was also contended that the license for the year 1960 had been duly obtained but the Court did not find any material on the record to uphold this assertion. According to the learned Senior Subordinate Judge, section 22 of the Money Lenders'' Act lays down that no suit for the recovery of a loan advanced by a money lender can be brought in a Civil Court until the Court is satisfied that he holds a valid registration certificate. Since a point on limitation was also raised the Court of appeal framed the following additional issues :

Whether the suit is within limitation ?

Whether legal representatives of Ratti Ram deceased had valid licence for proceeding with the suit. If not, what is its effect ?

and disposed of the appeal on 17th February 1961 with these observations :

The judgment and decree of the trial Court are reversed, and the same is remitted to the Court of Shri Sadhu Ram Goel, Subordinate Judge 1st Class, Nirwana for fresh decision on all the issues under Order 41, Rule 23-A, C.P.C. and section 151, C. P. C, and he should give an opportunity to the parties to lead additional evidence in support and against the above issues. The evidence together with his finding and the reasons therefore be sent to this Court.

The trial Court recorded its report on 18th December 1961 and directed the parties to appear before the learned Senior Subordinate Judge on 29th December 1961.

It appears that the learned counsel for the plaintiffs (respondents before the learned Senior Subordinate Judge) drew the attention of the learned Senior Subordinate Judge that his order dated 17th February, 1961 was not quite correct because after reversing the judgment and decree of the trial Court under Order 41, Rule 23-A, he could not call for a report from the trial Court with its findings on the additional issues. The learned Senior Subordinate Judge thereupon on 2nd March, 1962 passed an order observing that in fact the case had been remanded under Order 41, Rule 25, C.P.C. and the findings of the Court were only required on the Additional issues and that Order 41, Rule 23-A had been mentioned through inadvertence and also that the judgment and decree of the trial Court had been wrongly reversed. As the trial Court had already returned its findings on the additional issues, the learned Senior Subordinate Judge merely directed that in his earlier order the words "the judgment and decree of the trial Court are reversed" be deleted and instead of Order 41 Rule 23-A, C.P.C. the words "Order 41, Rule ''2.5, C.P.C." be substituted. After receiving the remand report, Shri Mohinder Singh, Senior Subordinate Judge, then finally allowed the appeal by deciding additional issue No. 2 against the plaintiffs on the ground that at the time of the passing of the decree by the trial Court on 13th October 1960, the plaintiffs (legal representatives of Ratti Ram) did not possess a valid registration certificate as a money-lender. It may be stated that-on the first additional issue relating to limitation both the trial Court and the learned Senior Subordinate Judge gave a decision in favour of the plaintiffs.

On revision in this Court, the learned counsel for the plaintiffs-petitioners has, to begin with, contended that Ratti Ram''s legal representatives cannot be included in the term "money-lender" but this contention is, in my view, untenable in face of the definition of the moneylender in section 2(vii)(b) of the Act. The learned counsel has next contended that the defendant did not raise any objection in regard to the absence of a registration certificate at the time of the restoration of the suit. Having not done so, the defendant should be deemed to have waived this objection and that in that case the plaintiff who originally instituted the suit having secured the requisite registration certificate, it was not at all incumbent for his legal representatives and successors to secure a fresh certificate when they were not doing any money lending business. It has also been submitted that an appeal before the learned Senior Subordinate Judge being a rehearing of the original suit, the learned Senior Subordinate Judge has erred in law by ignoring the certificate on the ground that on the date of the decree i. e. 13th October 1960, this certificate was not possessed by the plaintiffs. Stress has also been laid by Shri D. C. Gupta that by means of the order dated 17th February 1961, the learned Senior Subordinate Judge having expressly reversed the judgment and decree of the trial Court and also having in the clearest possible terms remanded the case under Order 41 Rule 23-A it was not within his jurisdiction to call for the findings of the Courts below on the additional issues only, and that under the law the trial Court was bound to deal with and redecide the whole case de novo, leaving it to the aggrieved party to go up on appeal. If that be the legal effect of the order dated 17th February 1961, the counsel has contended, then the production of the money-lender''s certificate would entitle the plaintiffs to claim the decision on the second additional issue in their favour and the suit could not be dismissed on the ground that the certificate had not been produced on or before 13th October 1960.

On behalf of the respondent his learned counsel has brought to my notice the order of the learned Senior Subordinate Judge dated 2nd March 1962 and it has been submitted that though this order was passed after the trial Court had forwarded its report on the additional issues, nevertheless it should be deemed to have retrospectively cured the defect in the order of the learned Senior Subordinate Judge dated 17th. February 1961. According to the learned counsel, section 151 of the Code conferred ample powers on the learned Senior Subordinate Judge to rectify a mistake which he considered to be due to inadvertence, it has also been urged that the defendant had raised an objection on the ground of absence of a valid registration certificate for the: year 1960, when Ratti Ram''s legal representatives applied for restoration, but the trial Court erroneously omitted to give any decision on this objection. It has further been contended that the decree having been passed by the trial Court on 13th October 1960 any subsequent issue of a registration certificate could not cure the defect and the plaintiffs'' suit must inevitably fail.

I have devoted my earnest attention and thought to the arguments advanced by the learned counsel for the parties and have in their light considered the facts and circumstances of this case. It is most unfortunate that the learned Senior Subordinate Judge should not have paid sufficient attention to the form and the language of his final order of remand on appeal passed on 17th February 1961. Judicial orders must always be so drawn up that there is no ambiguity in them; this is what the dictates of justice demand. The mistake which he describes in his order dated 2nd March 1962 to be due to inadvertence is, in my opinion, a serious mistake which is not expected from a careful and wide awake Judicial officer. One might reasonably ask whether the insertion of Order 41, Rule 23-A and the observations that the judgment and decree of the trial Court are reversed, were due to oversight, or the direction that the evidence on the additional issues and the findings should be returned to the appellate Court, was due to inadvertence and oversight. These two directions are apparently inconsistent and irreconcilable. No cogent or convincing ground is forthcoming on the record for holding the earlier insertion to be due to inadvertence and not the later. The consequences of a mistake like the present one may sometimes lead to serious complications. By way of illustration, if the, learned Senior Subordinate Judge had been transferred before the return of the remand report, his successor would perhaps have found himself in a somewhat embarrassing position, for it cannot be ascertained with certainty from the material on the record as to which portion of the order was due to oversight or inadvertence on the part of his predecessor. I feel in the circumstances that I would be failing in my duty if I do not point out to the learned Senior Subordinate Judge to be more careful in future in drawing up his orders because an ambiguously drawn up order containing contradictory directions may, at times, tend to defeat the very object which it seeks to serve and prejudicially affect the litigants for no fault of theirs.

But this apart, in my opinion, the learned Senior Subordinate Judge was again not quite right oh the facts and circumstances of this case in calling for a report on the additional issue No. 2. Absence of a certificate, it may be observed, does not necessarily mean that the suit should be dismissed; nor does it seem to prohibit the institution of the suit, and indeed at the bar it has not been contended that the absence of the necessary certificate would entail either of these two consequences. It is agreed that the only consequence which the absence of a valid registration certificate entails, on the language of section 22 of the Act, is that the suit is not to proceed until the Court is satisfied that the money-lender in question holds a valid registration certificate. If, therefore, the legal representatives of Ratti Ram were required to obtain the requisite certificate, then interests of justice demanded that the suit should be restored to its original number and proceedings stayed till the certificate was obtained. To achieve this end, the only proper course to adopt for the lower appellate Court in the circumstances was to reverse the judgment and decree of the trial Court and remand the case under Order 41, Rule 23-A, C.P.C. Assuming however, that to call for a report under Order 41, Rule 25 of the Code, was the correct procedure, even then if in the trial Court while evidence is being taken on the additional issues, one of which relates to the plea of limitation, a valid registration certificate is actually produced, it is not understood why this production should not be considered to be a substantial compliance with the provisions of section 22. The learned Senior Subordinate Judge was, in my opinion, being ultra-technical in observing that the trial Court''s decree having been passed on 13th October 1960 the production of the certificate before the trial Court during the remand proceedings was ineffective. The learned Judge appears to me to have ignored and lost sight of the real purpose and object of section 22.

It must not be forgotten that if the trial Court had in the first instance taken up the question of the existence or absence of a valid registration certificate in favour of Ratti Ram''s legal representatives, then it would have stayed the suit to enable them to produce the necessary certificate as was done in the case of Ratti Ram himself, and indeed it is not disputed before me that he could not have dismissed the suit on this account. The dismissal of the plaintiffs'' suit in the manner in which the learned Senior Subordinate Judge has done has, in my opinion, caused a substantial and manifest failure of justice on account of an ambiguous remand order which he later construed to be under Order 41, Rule 25, Civil Procedure Code. The act of the Court must it may be remembered do no injury to the suitors.

Had the case been held to have been remanded as it should have been under Order 41, Rule 23-A, CPC the production of the certificate in July 1961 would have been in order. While the proceedings after remand were going on in the trial Court, the certificate was actually produced and the trial Court, forwarded the report in December, 1961. Had the trial Court passed a decree on that date, there would have been no technical objection. It is not understood why this should not be construed to be a substantial compliance with the provisions of section 22. The trial Court having decreed the suit, it would perhaps also have been in order if the lower appellate Court had without remanding the case required the production of a certificate before it by Ratti Ram''s legal representatives, it being well-settled that appeal according to our law of procedure is a rehearing. Rules of procedure it is well to remember, are hand-maids and not mistress of justice and cause of justice should not normally be defeated on ultra-technical grounds which do not affect the merits of the controversy.

The impugned order of the learned Senior Subordinate Judge in so far as additional issue No. 2 is concerned is clearly tained with illegality and material irregularity and must be set aside and it must be held that the legal representatives of Ratti Ram had the requisite certificate during the suit proceedings in the trial Court and I hold accordingly. The decision on additional issue No. 1 is, however, maintained. Since several points arising in the controversy in the appeal have not been adjudicated upon by the lower appellate Court, the case must go back to it for disposing of the appeal finally on the merits in accordance with law and in the light of the observations made above. The parties are directed to appear in the Court of the learned Senior Subordinate Judge on 16th December, 1963 when another date would be fixed for further proceedings. There would be no order as to costs in this Court. Costs in the Courts below would be costs in the cause.