Ramasamy vs Valliammal

K.P. Sivasubramaniam, J.—This appeal is filed by the appellant on a suit for redemption of the mortgage. It is pleaded by the appellant/plaintiff that on 7.7.1992 a registered othi was executed in favour of the defendant/respondent. The period of redemption arose subsequent to 7.7.1974 and by virtue of the benefits of the provisions of Tamil Nadu Act 13/80 the plaintiff did not have to pay any amount in view of the fact that his income was always less than Rs. 2,000/-. The plaintiff had sent a notice to the defendant on 22.7.1980 but the defendant chose to deny that he was entitled to the benefits of Act 13/80. The defendant contested the said claim and in the Written statement she contended that though the registered othi was true, the contention that till date the property was in the enjoyment of the defendant was unsustainable and that the plaintiff was preventing the defendant from enjoying the property and has caused damages to the defendant. This has been stated in the reply to the legal notice issued by the plaintiff and that therefore the claims of the plaintiff were unsustainable. The trial court decreed the suit after agreeing with the pleadings in the plaint. However, the lower appellate court even though sustained the plea of the plaintiff that he was entitled to the benefits of Tamil Nadu Act 13/80, however held that u/s 6 of the Act he should have approached the Tahsildar and that the civil court''s jurisdiction to exercise the powers of the Tahsildar will not be available in view of Section 6 (b) of the Act.

u/s 6 of Tamil Nadu Act 13/80 every debtor referred to in clause (f) of sub-section (1) of Section 4 shall make an application in such form containing such particulars as may be prescribed to the Tahsildar having jurisdiction over the area and that every such application shall be made on or before 1st day of December 1980. u/s 6 (2) on receipt of the application the Tahsildar after giving a reasonable opportunity to the creditors concerned and the debtor to make their representations, if he is satisfied that the debtor is entitled to relief u/s 4 shall pass an order releasing the mortgaged property and grant a certificate of redemption in the prescribed form which shall be admissible as evidence of such redemption in any proceeding before any court or other authority. On the basis of the said provisions, the lower appellate court has held that the plaintiff ought to have approached the Tahsildar and the suit as filed by him cannot be maintained.

Learned counsel Mr. AR. L. Sundaresan appearing for the appellant contends that Section 4 (1) (b) of the Act only disentitles the creditor from filing a suit before a civil court against any debtor and that there is no other provision in that Act which would take away the jurisdiction of the civil court to pray for appropriate reliefs. In this context he also submits that to the legal notice sent by the plaintiff, a reply was sent by the defendant disputing the entitlement of the benefits of the Act in favour of the plaintiff and that it was only the civil court which can go into the issue as to whether the plaintiff was a debtor or not. Learned counsel also contends that inasmuch as he has approached the civil court within the period of limitation as prescribed u/s 6, there can be no bar for maintaining the suit before the civil court. Learned counsel relies on a judgment of a Division Bench of mis Court in K. V.S.P. Subramainan Chettiar v. R.D.O., Arantangi (1982) 2 M.L.J. 375 = 95 L.W. 466). The following observations made by the Division Bench would be relevant

"Section 5 and 6 of the Act do not use a non-obstante clause giving the Tahsildar a power to over-ride the decision of the Civil Court as regards the question whether a party before the Civil Court is a person entitled to the benefits of the Act, and the Tahsildar acting u/s 5 or Section 6 of the Act cannot be expected to render a decision on the question as to whether the debtor is entitled to the benefits of the Act and call upon the Civil Court to abide by that decision."

Apart from the said decision relied upon by the learned counsel for the appellant, it is a settled proposition of law that the exclusion of the jurisdiction of a Civil Court will not be readily inferred or presumed and that the Act itself should contain a specific provision excluding the jurisdiction of the Civil Court and otherwise resort to Section 9 of C.P.C. cannot be prohibited. In this case it is also to be seen that the jurisdiction of the Tahsildar is only to issue a certificate and for any other relief the party has to approach only the Civil Court which is implied by Section 6 (2) (a) (i) of the Act. Therefore, the contention of the learned counsel for the respondent that the jurisdiction of the Civil Court is barred for any of or other relief available u/s 6, cannot be accepted. In my opinion Section 6 is only a beneficial provision intended to benefit the debtor to a cheaper remedy before the Tahsildar instead of requiring him to go before the Civil Court which necessarily requires the payment of heavy court fee. The said provision cannot therefore be taken to be a bar for the party approaching the Civil Court. The suit has also been filed within the prescribed period of limitation.

Learned counsel for the respondent however relies on the judgment of V. Ratnam, J. (as he then was) in Perumal v. Chinna Karupparnna Goundar ((1981) M.L.J. 1 =94 L.W. 317). That is a case in which relief u/s 4(1) (a) was invoked and that is not a case in which the powers of the Tahsildar vis-a-vis the powers of the Civil Court under Sec. 6 were considered by the learned judge.

Therefore, I am inclined to hold that the observation of the learned appellate Judge to the effect that the appellant should have approached the Tahsildar and that the suit was not maintainable, cannot be accepted and his finding to the said effect has to be set aside. In view of the circumstance that the appellate Judge has also concurrently found that the appellant was entitled to the benefits of Tamil Nadu Act 13/80, no further issue would arise for consideration and therefore, the appellant is entitled to succeed in the above Second appeal. The above Second Appeal is allowed. No costs.