P L D 1964 Dacca 756 (PLP)

MURSHED, J.‑This revisional application is directed against an order passed by the District Judge of Khulna under section 40‑A of the Bengal Agricultural Debtors Act, 1935 (Bengal Act VII of 1936) (hereinafter called the Act). The predecessors of some of the petitioners before us applied to the Debt Settlement Board at Fingri in the district of Khulna for the Settlement of a debt on the 14th of January 1940. However, at a time when the said application was pending at the Fingri Debt Settlement Board, the predecessor‑in‑interest of some of the petitioners, called one Pagli, applied to the Special Debt Settlement Board at Satkhira for settlement of the same debt. The debt was in respect of a mortgage with regard to certain lands made on the 19th of May 1908. The Debt Settlement Board at Fingri, in the absence of the creditors, decided that the applicants were agricultural debtors. Thereafter on notice to the creditors the said Fingri Board decided that the petitioners were such agricultural debtors, that is to say, it was decided that there existed a debt. Obviously, this order passed by Fingri Board was one under section 20 of the Act. There is no other provision for that order and it should be remembered that section 20 of the Act makes it incumbent on the Board to decide the question as to the existence or non existence of a subsisting debt the existence of a debt being the foundation of the Board's jurisdiction to settle the said Debt. The application before the Fingri Board has had a rather eratic and chequered career. Sometimes the applicants were absent on the date fixed for hearing ; but in a substantial number of cases the creditors were absent. At one point of time it seems that all the parties were present before the Board which was apprised of the fact that there had been a negotiation for compromise between the parties. On behalf of the creditors the attention of the Board was drawn to a document, purporting to be a compromise‑decree, incorporating the terms of the compromise between the parties in respect of a suit for fore closure brought by the creditors with regard to the aforesaid mortgage which was made on the 19th of May 1908. The Fingri Board thereupon passed an order on the 2nd of February 1941, being Order No. 12, couched in a rather unhappy language. The essence and substance of the order so passed was, that in view of the aforesaid circumstances, the Board could not give any decision under section 18 (1) of the Act. No decision on the merits of the case was, in fact, given by the Fingri Board. However, in the meantime, the applicants before the Fingri Board made a similar application before the Satkhira Board where they joined their co‑debtors in applying for a settlement of the debt, with the result that the Satkhira Board was in seisin of the entire case at the instance of all the debtors concerned. In such a context, it seems that the applicant before the Fingri Board lost all interest in pressing their application before the Fingri Board and, ultimately, an order was passed on the 20th of February 1944, to the effect that the application was dismissed for non‑prosecution. It would thus be seen that the said application before the Fingri Board ended in a smoke with no result whatsoever. We now turn back to the Satkhira Board where, as we have seen above, all the said applications by the debtors were then pending. Those applications were, in these circumstances, vigorously pursued before that Board by all the debtors concerned. Eventually, the Satkhira Board came to a decision that there existed a debt in respect of the matter placed before it and an award was accordingly given by the said Board. Against the decision of the Satkhira Board and the award given by it, the creditors (opposite‑parties before us) preferred an appeal before the Appellate Officer under the provisions of section 40 of the Act. The said appeal was dismissed for default. Against such order of dismissal the creditors moved the District Judge of Khulna in revision under section 40‑A of the Act. The learned District Judge gave a decision to the effect that no debt existed and he set aside the award. The debtors thereupon moved this Court against the order passed by the District Judge in revision and this Court directed the District Judge to send back the case on remand to the Appellate Officer. Thus, the appeal came back to the Appellate Officer for re hearing and it was marked as Appeal No. 29 of 1944. The Appellate Officer, allowed the appeal and reversed the award given by the Satkhira Board, holding, inter alia, that there was no subsisting debt. Against this order passed in appeal by the Appellate Officer, the debtors moved the district Judge of Khulna by way of revision. The learned District Judge dismissed the application and affirmed the order passed by the Appellate Officer. Thereafter the said debtors, namely, the petitioners before us, moved this Court in revision and obtained the present Rule. At the hearing of this Rule we had the advantage of hearing full arguments from the learned lawyer appearing for both the parties before us. At the outset we would like to recapitulate that the mortgage debt relates to 1908 and, furthermore that a suit for foreclosure in respect thereof was disposed of in 1917. That application for the settlement of the debt was made in 1940. But the effective application, in this behalf, was made sub sequently in 1943. It would be seen from what we have stated above that the application had a somewhat extraordinary career being bandied about from Court to Court and from one Appellate Officer to another. We were, therefore, initially reluctant to interfere in a matter of such old origin. Mr. Moinul Huq, however, appearing on behalf of the petitioners, submitted the facts stated above and, on a considera tion of the points that were pressed before us, we have decided, as will be seen hereafter, to intervene in the interest of justice. On behalf of the petitioners it was submitted that the debtors' case was not properly considered by any of the Tribunals concerned in dealing with the applications made by them and, in that sense, it is claimed, that they never had a fair hearing. With this preface, learned Advocate has assailed the orders passed by the Appellate Officer on remand of the appeal and has also impeached the order passed by the District Judge in disposing of the revisional application against the decision of the Appellate Officer. The attack has been under several heads specified below: It was first contended that neither the Appellate Officer nor the District‑Judge gave any consideration or paid any attention to the, written representation made by the debtors before the Appellate Officer setting out their case. The said representation is a part of the record which has been transmitted to us. It appears that in respect of the issue as to the existence or non existence of a debt, the case of the debtors, broadly speaking, was that, although a compromise decree was obtained by the creditors in respect of the mortgage, the said compromise decree was itself a continuation of the old mortgage which was replaced by a mortgage of a different kind. It was emphasised that all along the line the relationship of debtor and creditor never ceased to exist between the parties It was argued that, in spite of unhappy language used in the terms which embodied the com promise, the substance thereof was that another mortgage came into being. In this connection, our attention was directed to a term in the said compromise decree by which, it appears, possession of the lands in question remained with the creditors subject to a condition that the land would be returned back to the debtors on payment of a stipulated sum of money. In the books of the landlords, however, the debtors continued to remain as tenants of the lands. Our specific attention was drawn to another term by which the debtors bound themselves to contest any suit for arrears of rent which might be instituted by the landlords. In this context, learned Advocate submitted that it was permissible for the debtors to lead extraneous evidence in order to explain the meaning of the provisions of the compromise decree. It has been contended that under the Evidence Act the debtors were entitled to do so. Furthermore, he pointed out that the Debt Settlement Board itself was unfettered by the Evidence Act. Oar attention was also drawn to the fact that, by legal definition, the connotation of "debt" was not merely confined to a debt, properly so called, but that any transaction which in the opinion of the Board was a "debt" would be a Debt within the meaning of the Act. From this point of view, it was urged that the Tribunals which were concerned with the disposal of the said application, were called upon to advert to and decide the case sought to be made out by the debtors. It is clear from the orders passed by the Appellate Officer as well as by the District Judge that no attention whatsoever was paid to this aspect of the case which the debtors wanted to establish. The Appellate Officer found that no debt existed because of the said compromise petition, but without considering the case of the debtors as set out above. Similarly, the District Judge also failed to consider the same. We, therefore, hold that this contention of the petitioners must be upheld. There can be no manner of doubt that the petitioners' case, as mentioned above, was not at all considered, either by the Appellate Officer or by the District Judge. We think that, on this ground alone, petitioners are entitled to have the impugned order set aside. The fact which stares us on the face is that the case of the petitioners was not given a fair considera tion at any stage after the award, which they had received in their favour, by the Satkhira Board. It was next contended that the Appellate Officer was not authorised by the provisions of section 40 of the Act to pass an order reversing a decision or award made by a Debt Settlement Board. It was submitted that the Appellate Officer could "modify" an award or pass certain other kinds of orders specified in section 20 of the Act, but could not "reverse" an award inas much as he was not vested with such power under the Act. In this connection, it would be useful to quote the terms of section 40, subsection (5) of the Act, which runs thus :‑

"(5) If the Appellate Officer does not reject that appeal summarily, he shall hear the parties, if they appear, and consider any reasons which the Board may submit in regard to the grounds of such appeal, and may then either confirm or modify the decision or order of the Board or direct the Board to take such action as he, thinks fit." It was thus argued that the Appellate Officer could summarily reject an appeal and confirm a decision made by the Board or modify the same, but it could not "Reverse" the decision. Special emphasis was stressed on the word "modify" which, in the ordinary and general acceptation of the term, means an alteration, but not a total alteration, of an order or decision. It would appear that, prima facie, there is some force in the argument which has been canvassed before us. The word "modify" primarily means "to moderate or tone down something", that is, to make a partial or even a substantial alteration, but it does not connote the total wiping out of the decision. Ordinarily, that is so. But in a secondary sense the words "to modify" can mean "to change; to alter; to amend; to substitute." In 40 Corpus Juris, page 1487 (40 C J 1487) various shades of meaning which the expression "modify" has been judicially interpreted to mean, have been specified, and the term "modify" has been stated to mean, among other things, "to change the mode in which a subject is dealt with, sometimes importing an authority to amend, to enlarge to extend "to substitute". For that last‑quoted meaning, namely" to substitute", the authority is the case of Astor v. L.'Amor‑eaux (6 N Y Supar. 523, 524, 538). Thus in modifying a finding, it would be permissible to "reverse" such finding and to convert the same into a different finding as long as the reversal relates to the same subject‑matter. In the present case the decision to the effect that "there subsists a debt" could be modified by a finding that "no debt subsists", the subject‑matter being the same, namely, "a debt". Such a finding cannot be replaced, say, for example, by a finding to the effect that the transaction constitutes a charity‑charity being a totally different subject. Having regard to the scheme of the Act, read along with its relevant provisions, it seems that it was not the intention of the Legislature to use the word "modify" in a restricted sense. In this context, it will be noticed that under section 40 (1) of the Act a very wide jurisdiction had been conferred upon the Appellate Officer to hear an appeal on practically all matters which come up before a Debt Settlement Board, subsection (1) of section 40 runs thus :‑

"(1) An appeal may be made in the prescribed manner to an Appellate Officer to be appointed by the Provincial Government against‑ (a) any decision or order of a Board under this Act or of a Certificate Officer under subsection (2) of section 28 or section 29, (b) any award, (c) the grant of a certificate under section 21, or (d) any failure on the part of a Board to perform its functions under this Act or any abuse by a Board of its powers: Provided ." It is, therefore, clear that an aggrieved party can prefer an appeal in respect of all manner of grievances against a decision or order made by a Debt Settlement Board. Our attention was specifically drawn by Mr. Bhattacharjee to section 20 of the Act which reads as follows: "

20. If any question arises in connection with proceedings before a Board under this Act, whether a person is a debtor or not or whether a liability is a debt or not, the Board shall decide the matter." By this section a duty has been cast upon the Board to decide whether a person is a debtor or not or whether a liability is a debt or not

Under the provisions of subsection (1), clause (a) of the aforesaid section 40 of the Act, there is an appeal against any decision given by the Board under section

20. Let us suppose that the decision of the Board is (and it so happens that, in the present case, such is the decision) that no debt exists. Can it be said that the Appellate Officer cannot come to a contrary finding that a debt does not exist? Can it be further said that, although the Appellate Officer may find that the decision of the Board is clearly wrong, he cannot reverse that decision? Such a narrow view would lead, in this case, to a patent absurdity. It was contended by Mr. Moinul Huq that, although the Appellate Officer might find that the decision of the Board was wrong, he was only empowered to maintain the decision and to direct the Board to review the same. This does not make any sense. It is permissible for a Court of Law to presume that the Legislature did not intend such an absurdity. It was clearly the intention of the Legislature to invest the Appellate Officer with an effective power to dispose of the appeal. There are innumerable decisions to support this proposition. But, in this connection, it would be useful to refer to certain passages from Maxwell on "Interpretation of Statutes", 9th Edition. At page 236 of that Book the observations run thus:

"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest construction of the apparent purpose of the enactment, or to some incon venience or absurdity, hardships or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence." Mr. Moinul Huq has, however, drawn our attention to the provisions of section 40‑A, subsection (5) of the Act which confers certain revisional powers upon the District Judge. The said subsection is couched in the following terms :‑

`(5) If the District Judge, does not reject the application he may, if he is satisfied that there has been a substantial failure of justice by reason of any illegality or irregularity contained in the order of the Appellate Officer, or for any other sufficient cause either modify or reverse the order or any portion thereof." He has, therefore, argued that the Legislature was conscious of the difference between the terms "modify" and "reverse" and that when it intended to confer a power of reversal, it did so in express terms. The short answer to this is that on an examination of the scheme of the Act as a whole, there can be no manner of doubt that the power to "modify" within the meaning of section 40, connotes the power to reverse. It would be absurd to think that the appellate authority would be compelled to maintain what according to it, is a wrong decision and that it would merely direct the Board to review the same. It may well happen that the Board, upon such consideration, may again come to the same erroneous decision which it had reached. What would be the result in such a case? An erroneous decision as to the existence or non‑existence of a debt is incapable of any modification other than its reversal. We would like to answer this point in the language of Maxwell, at page 258, (9th Edition) which runs thus:‑

"It has been asserted that no modification of the language of a statute is ever allowable in construction except to avoid an absurdity which appears to be so, not to the mind of the expositor merely, but to that of the Legislature, that is, when it takes the form of a repugnancy. But the authorities do not appear to support this restricted view. They would seem rather to establish that the judicial interpreter may deal with careless and inaccurate words and phrases in the same spirit as a critic deals with an obscure or corrupt text when satisfied, on solid grounds, from the context or history of the enactment, or from the injustice, inconvenience or absurdity of the consequences to which it would lead, that the language thus treated does not really express the intention and that this amendment probably does." The next point mooted before us is, that the learned District Judge as well as the Appellate Officer misdirected themselves when they held that the appeal preferred by the opposite‑parties before us was not barred by the provisions of subsection (2) of section 40 of the Act. The said subsection (2) runs thus:‑ "(2) An appeal under subsection (1) shall lie if made within thirty days of the date of the decision, order, award or certi ficate referred to in that subsection." Learned Advocate has contended that the appeal was preferred long after the award was made by the Board and that this delay in preferring this appeal cannot be condoned under section 5 of the Limitation Act which has no manner of application to a case like this. It was contended that the words of the aforesaid sub section (2) of section 40 are peremptory. That is so, and it has been rightly contended that section 5 of the Limitation Act is inapplicable to an appeal preferred under this section for the simple reason that the said section 5 of the Limitation Act has not been made applicable to such appeal. But the case of the appellants before the Appellate Officer was that they were kept in the dark about the proceedings of the Board by fraudulent suppression of the notices and other processes. Clearly, section 18 of the Limitation Act is applicable in such circum stances. It was urged that, in such an event, it was incumbent on the part of the creditors to specify the date when they had come to know about the award given by the Board. It seems that this point was not considered either by the learned District Judge or by the Appellate Officer. We, therefore, hold that this point can be re‑agitated by the parties on an appropriate occasion. It was further contended that the decision of the Appellate Officer as to whether the Satkhira Board was competent to hear the application cannot also be sustained. The Appellate Officer has taken the view that section 8, subsection (3) of the Act requires a transference of the case to the Fingri Board inasmuch as the earliest application in this behalf was made to the said Fingri Board. Section 8, subsection (3), runs thus:‑‑‑ "(3) If applications are made to more than one Board in respect of the debts of the same debtor, such applications shall, subject to rules made under this Act, be transferred to and dealt with by one Board." It is obvious that the Appellate Officer as also the District Judge, misdirected themselves on this point. It will be noticed, in the first place, that subsection (3), as quoted above, contemplates the transference of .all applications made by one particular debtor to one Board only, and not necessarily to the Board where such application was first made. It would also be seen that transference is in respect of various applications made by the same debtor to more than one Board. The transference is thus debtor‑wise. Secondly, it would be seen that the said sub section (3) does not specify which of the Boards the applications should be transferred to. It may well happen that the Fingri Board might have transferred the application made to it to the Satkhira Board. It could be done either way, that is, either the Satkhira Board might have transferred the application to the Fingri Board or the Fingri Board on its part could have transferred the application to the Fingri Board or the Fingri Board on its part could have transferred to the application to the Satkhira Board. In the present case, however, a large number of debtors had applied only to the Satkhira Board and not to the Fingri Board. To say that the Satkhira Board misused its power is not warranted by the provisions of the said Act. Finally, it has been argued that the Appellate Officer was wrong in holding that the applications submitted by the petitioners to the said Board was barred by the law of Limitation. Our attention was drawn to the provisions of subsection (1) of section 8 of the Act, which runs thus:‑

"(1) Subject to the provisions of section 9, a debtor may make an application for the settlement of his debts to a Boards established for the local area within which he originally resides within five years after the first Board is established under sub section (1) of section 3 for that local area." The Appellate Officer has held that inasmuch as the application filed by the petitioners was made more than five years after the constitution of the first Board for the district of Khulna, the application was barred by the provisions of the aforesaid section. It has been rightly contended before us that the period of five years has been specified with reference to the Board constituted for the local area, and not for the district. Mr. Bhattacharjee has contended that proper evidence in this behalf was not considered by the Appellate Officer. We hold that the decisions of the Appellate Officer as well as the District Judge on this point cannot be upheld. It is how ever, open to the parties to agitate this point again, For reasons stated above, we make the Rule absolute and direct that this case be sent back on remand to the District Judge of Khulna who is further directed to remand the applications to the Debt Settlement Board at Satkhira or any other body to which the work of the said Board has been assigned. Before parting with this case, we would like to observe that if we had been satisfied that the Appellate Officer or the District Judge had properly come to a finding that no debt existed with regard to these applications, we would not have interfered with the orders passed by them merely because of certain errors and irregularities committed by them in making the said orders. The question before us, however, is that the petitioners' case in this respect has not received any consideration whatsoever. We were thus constrained to make the aforesaid order. We, however, make no order as to costs of this application. A. S. CHOWDHURI, J.‑I agree. S. Q Rule made absolute.