P L D 1963 Supreme Court 191 (PLP)

HAMOODUR RAHMAN, J.‑‑This appeal, by special leave, is directed against the decision of a learned Single Judge of the High Court of East Pakistan in second appeal. The second appeal in the High Court arose out of a suit for setting aside an award made by the Debt Settlement Board of Bijoybag after declaring the same to be illegal, ultra vires and to have been obtained fraudulently. The property in dispute in the said suit appertained to a nim howla tenancy in the name of the principal defendants respondents before us. This tenancy was auctioned in execution of a rent decree in 1936. The appellants, who were the plaintiffs in the suit, purchased the property in the auction in November 1936. The tenants at first attempted to have the sale set aside in 1937 but failed. Then two of them filed a title suit claiming raiyati and under‑raiyati interests in the lands under the nim howls. This suit was also dismissed after contest. In 1941 the present appellants also filed a title suit for the declaration of their title by auction‑purchase and for khas possession of the homestead portion after dismantling the huts standing thereon and obtained a decree therein after contest against one of the defendants and ex parte against the rest. Failing in their attempts the tenants ultimately on the 8th of August 1942, went to the Debt Settlement Board and applied under section 37‑A of the Bengal Agricultural Debtors Act, 1936 (hereinafter referred to as "the Act'), for relief, alleging that the decree‑holder Nur Bux had auction‑purchased the lands in the benami of his brother Karamat Ali and one Fazler Rahman, the appellants herein, and that the lands had been all along in the possession of the said decree-holder auction‑purchaser. The Debt Settlement Board of Bijoybag assumed jurisdiction upon this petition and on the 24th of October 1942, made an ex parse award in favour of the tenants holding that the decree holder Nur Bux and the auction‑purchaser Karamat Ali being full brothers living in joint mess had auction‑purchased the property with their joint funds, although ostensibly the purchase had been made in the names of Karamat Ali and Fazler Rahman. Hence the decree‑holder Nur Bux was in possession of the property along with his brother Karamat Ali. So far as the other auction‑purchaser Fazler Rahman was concerned all that the Debt Settlement Board observed was that he too was a relation and a follower of the other two. Although the Board itself could not shut its eyes to the fact that it had been "sufficiently proved that after auction Fazlur Rahman cultivated the land", it did not find it necessary to say anything more apart from observing that "Nur Bux with his brother having been in the same mess are in the ejarati possession of the auction purchased land." This award, it appears, was challenged in revision before the District Judge and then again before the High Court but without success. Hence the auction‑purchasers filed the suit, out of which the present appeal arises in 1945 con tending that the Board had wrongly assumed jurisdiction in this case and that the notices had been fraudulently suppressed in collusion with the Chairman of the Board who had himself various litigations with the appellants. They denied that they were the benamdars of the decree‑holder and maintained that they had auction‑purchased the disputed property with their own money and for their own benefit. In this suit no further relief by way of recovery of possession was claimed, although admittedly the judgment‑debtors, namely, the defendants‑respondents in this appeal, had in pursuance of the award in their favour actually been restored to possession. The suit was contested by the defendants Yunus Haji and Yasin Mian. They denied that the award had been obtained by practicing any fraud on the Board or in collusion with its Chairman and reiterated that the appellants were the benamdars of the decree‑holder who was in actual possession of the land. The Debt Settlement Board, had, therefore, according to them, every jurisdiction to entertain the application under section 37‑A of the Act. Hence, they contended that it was the Civil Court, which had no jurisdiction to try a suit for setting aside an award. In any event, they maintained that the suit filed by the appellants herein was barred by the principles of res judicata since the award of the Debt Settlement Board had been upheld even by the High Court in revision. The trial Court took the view that the Debt Settlement Board had no jurisdiction at all to enter into the question of benami in a proceeding under section 37‑A of the Act and, as such, the suit was maintainable. It also found that the award had been obtained by fraudulently suppressing the notices and that the finding of the Board to the effect that the decree‑holder Nur Bux was in possession was clearly a fraudulent finding, for, even the tenants in their own application under section 37‑A of the Act had admitted that the appellant Fazlur Rahman was in possession. In support of this view it also referred to the finding of the Appellate Officer under the Act, who heard the appeal against the award, to the effect that the notices bad been suppressed. This officer had actually on that ground set aside the award but on revision the District Judge had restored the award without going into the question of fraud. The trial Court was also of the view that a decision in a proceeding under the Act could not operate as res judicata in a civil suit. The appel lants' suit was, accordingly, decreed and the award declared void and inoperative With regard to the objection raised as to the maintainability of the suit under section 42 of the Specific Act the trial Court took the view that since the tenants had been restored to possession by the Court in implementation of the award the same Court could under section 151 of the Civil Procedure Code order restitution and, as such, it was not necessary to ask specifically for possession, On appeal the findings of the trial Court both with regard to the suppression of the notices and the collusion with the Chairman of the Board were upheld and it was affirmed that the Act did not preclude the Civil Courts from entertaining a suit for setting aside an award if the same had been obtained by fraud or had been made without jurisdiction The appeal was, accordingly, dismissed. In second appeal the High Court, however, took the view that the Courts below were wrong in their interpretation of the law. According to it under section 37‑A (2) since the Board was also charged with the duty to "first determine whether the application fulfils the conditions specified" in subsection (1) thereof and "whether it can be entertained", the Board had every jurisdiction to decide whether the conditions necessary for clothing it with jurisdiction existed. Thus, in ‑the present case, it was for it to ‑determine "if the property sold was in the possession of the decree‑holder on or after the 20th day of December 1939." This necessarily also gave it jurisdiction to decide all questions connected therewith including, if necessary, the question as to whether the ostensible auction‑purchaser was a benamdar of the decree‑holder. Again, since the award so made had been given a finality by the statute, subject to the right of revision given there under, that jurisdiction was its exclusive jurisdiction and no suit for challenging its correctness could be maintained. The concurrent findings of the Courts below with regard to the suppression of the notices and the fraud practiced in obtaining the award were also set aside by the High Court in second appeal on the ground that they were based upon conjectures and inadmissible evidence. In coming to the contrary conclusion that the notices had in fact been served on the appellants by the Debt Settlement Board the High Court appears to have relied upon the fact that neither in the appeal before the Appellate Officer nor in the revisions before the District Judge and the High Court had the ground of fraudulent suppression of the notices been taken. The High Court also found that the suit was barred under section 42 of the Specific Relief Act, as the appellants, who had admittedly been ousted from possession, had not also claimed for the consequential relief of possession to which they would be entitled in the event of the award being set aside. The appeal was, therefore, allowed and the appellants' suit was dismissed wit costs throughout. It is now contended before us on behalf of the appellants that the High Court was wrong in taking the view that an auction purchaser in an execution sale was bound by the decision of a Debt Settlement Board. Indeed, it is argued that upon a proper construction of the provisions of section 37‑A it will be found that besides the applicant the only other parties whose presence is necessary in a proceeding under the said section are the decree‑holder, the landlord and the mortgagee, if there is any subsisting mortgage on the property. The auction‑purchaser does not come into the picture at all and, as such, it is difficult to appreciate how questions of title between him and the decree- holder could come within the ambit of the jurisdiction of the Debt Settlement Board so as to prevent an auction purchaser from approaching the Civil Court to have his title declared. The High Court does not doubt the correctness of the principle enunciated by the Judicial Committee of the Privy Council in the case of the Collector of South Arcot v. Mask and Company (671A222), namely, that "the exclusion of the jurisdiction of Civil Courts must either be explicitly expressed or clearly implied and is not to be readily inferred. Even if jurisdiction be so excluded the Civil Courts have jurisdiction to examine into cases where the provisions of the Ac: have not been complied with or, the, statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure." But it seems to have taken the view that this was a case where a special statute had created a special liability and also provided a'" special remedy for enforcing it and, as such, that remedy alone was available and none other. The High Court has not drawn any distinction between a question, which the inferior Court, Tribunal or body is undoubtedly given the jurisdiction to decide and the determination of preliminary facts on which the exercise of that jurisdiction itself depends. The question as to whether such an inferior Court, Tribunal or body can give itself jurisdiction by a wrong decision on preliminary facts does not appear to have received consideration.'" That the determination in respect of the above' questions do not stand on the same footing has been clearly brought out by Lord Esher M. R. in the case of Queen v. The Commissioners for Special Purposes of the Income‑tax (LR21 QBD 313 at p.319), wherein he observed as follows: ‑ "When' an inferior Court or Tribunal or bogy, which has to exercise the power of deciding facts, is first established by. Act of Parliament, the Legislature has to consider what powers it will `give that Tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such Tribunal or body before it proceeds to do certain things, it shall have Jurisdiction to do such things, but not otherwise There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things, which may exist. The Legislature may entrust the Tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more When the Legislature are establishing such a Tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the Tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction." Upon this principle the answer to the question must depend upon the language of the statute itself by which the jurisdiction is created. If the inferior body or tribunal has been given the jurisdiction to determine such preliminary facts also, without any appeal being given, then its decision is final whether the decision is right or wrong. It is necessary, therefore, to look at the language of section 37‑A of the Bengal Agricultural Debtors Act. Its provisions, so far as they are relevant for our present purposes, read thus‑-- "37‑A. (1) When any immovable property of any person has been sold after the twelfth day of August 1935, in execution of a decree of a Civil Court or a certificate under the Bengal Public Demands Recovery Act, 1913, relating to a debt, other than a certificate for the recovery of any amount payable under an award, such person or his heir, ward, executor, or administrator may, notwithstanding anything contained in this Act or in any other law for the time being in force or in any agreement, apply for relief under this section, if the following conditions are fulfilled, namely :‑ (a) * * * * * * (b) * * * * * * (c) If the property sold was in the possession of the decree holder on or after the twentieth day of December 1939, or was alienated by the decree‑holder before that date in any `'' manner otherwise than by. " (2) The application referred to in subsection (1) shall be made to the Board established for the local area within which the applicant ordinarily resides and within one year from the date of commencement of the Bengal Agricultural Debtors (Amendment) Act, 1942, or from the date on which possession of property was delivered to the decree‑holder, whichever is later, notwithstanding that on the date of such application the period of five years from the establishment of the first Board to such local area has already expired, and the Board shall first determine whether the application fulfill the conditions specified in that subsection and whether it can be entertained. (3) No Board shall entertain an application under sub section (2) if such application relates to a debt in respect of which a Civil Court has previously entertained a suit instituted or an application made under the provisions of the Bengal Money‑lenders Act, 1940; and no Civil Court shall entertain a suit instituted or an application made under the provisions of that Act if such suit or application relates to a debt in respect of which a Board has previously entertained an appli cation made under the provisions of this section. (4) If the Board decides that application made under sub section (2) fulfils the conditions specified in subsection (1) and can be entertained by it, and if after an opportunity has been allowed in the manner prescribed, the decree‑holder and the landlord of the applicant in respect of the property sold in the case where the decree‑holder is not such landlord, or where the Board finds that the property sold was subject to any bona fate mortgage executed by the decree‑holder before the twentieth day of December 1939, the applicant, the decree‑holder, such landlord and such mortgagee do not effect an amicable settle ment of the debt within such period as the Board may allow, the Board shall, in such manner as may be prescribed, estimate the average annual gross receipts deemed to have been derivable from the property sold during the period beginning on the first day of December 1934, and ending on the thirty‑first day of December 1938. (5) After making the estimate referred to in subsection (4) the Board shall make an award . . . . . (6) . . . . . . . . . (7) . . . . . . . . . (8) The debtor may present a copy of the award made under subsection (5) to the Civil Court or Certificate Officer at whose order the property was sold, and such Court or Certificate Officer shall thereupon direct that the sale be set aside, that the debtor together with any person who was in possession of the property sold or any part thereof at the time of delivery of possession of such property to the decree‑holder as an under- raiyat of the debtor and who has been ejected there from by reason of such sale be restored to possession of the property with effect from the first day of Baisakh next following or the first day of kartic next, whichever is earlier, and that any person who is in possession of the property other than a person the property or part thereof as an under-raiyat of the debtor at the time of delivery of possession of such property to the decree-holder shall be ejected therefrom with effect from that date: (9) . . . . . . . . . . . (10) . . . . . . . . . . . (11) . . . . . . . . . . . (12) In this section the expression `decree‑holder' includes the certificate‑holder and any person to whom any interest in the decree or certificate is transferred by assignment in writing or law." Section 33 of the Act which bars the jurisdiction of the Civil and Revenue Courts reads as follows :‑, "

33. Except as provided in this Act, no Civil or Revenue Court shall entertain a suit, application the debtor in respect of‑ (a) any debt included in an application under section 8 or section 37‑A or in a statement under subsection (1) of section 13, proceedings in connection with which are pending before a Board or an Appellate Officer or a District Judge or an Additional District Judge ; (b) any debt for which any amount is payable under an award, except in accordance with the provisions of sub section (5) of section 29." It will thus be seen from the words which have been italicized above in subsection (2) of section 37‑A that the Board has been giver, the jurisdiction to determine whether the conditions mentioned in subsection (1) are fulfilled and whether it can entertain the application. One of such conditions is that the property sold is in the possession of the decree‑holder on or after the 20th day of December 1939, And subsection (6) of section 40, which is in these terms

"40 (6) Subject to the provisions of section 40‑A the orders of the Appellate Officer shall be final." gives finality to the orders of the Appellate Officer subject to the revision allowed by section 40‑A of the said Act. It would thus seem that upon the language of the Bengal Agricultural Debtors Act a decision of an Appellate Officer under the Act becomes final subject to the right of revision given by the Act itself and the jurisdiction of Civil Courts to entertain any suit, application or proceeding against a debtor in respect of a debt included, inter alia, in an application under section 37‑A has been completely taken away. Since the Board has been expressly given the jurisdiction to decide whether the conditions specified have been fulfilled, it must necessarily also have jurisdiction to adjudicate upon disputes raised as to the existence of those conditions, but the question is whether it was the intention of the statute also to give finality to the decision of the Board even in respect of any and every question raised in such dispute. The Act under consideration, it may be pointed out, specifies the preliminary facts which the Board has jurisdiction to enquire into. The decision of the Board on those preliminary points alone may acquire a finality and they may not be re‑agitated in a Civil Court, but does this finality extend to even matters incidental thereto or to other facts upon which the existence of those specified conditions may itself be dependent? Looking at the provisions of section 37‑A as a whole we are unable to answer this question in the affirmative. The scheme of this section appears to be that before an award is made the parties concerned should be given an opportunity to come to an amicable settlement. Thus if under subsection (4) of section 37‑A in proceedings before the Board under subsection (2) the only persons who are to be afforded this opportunity are the debtor, the decree‑holder the landlord of the debtor and a mortgagee, if there be any subsisting mortgage and none else, then how can an auction purchaser be given this opportunity to come to such an amicable settlement and how can the Board make the award without giving him this opportunity. Similarly, the ouster of jurisdiction of the Civil Courts is limited to proceedings relating to debts investigated into or settled by the Board. The Civil Courts are not debarred from entertaining suits or proceed ings with regard to other questions wholly unconnected with the debt. The learned Judge in the High Court has himself relied upon certain observations in a decision of the Calcutta High Court in the case of Tara Prasanna Choudhury and others v. Adwaita Charan Samanta and another (A I R 1948 Cal. 329), for the proposition that a Debt Settlement Board may for the purposes of determining the character of the possession of the decree‑holder go into the question of benami also, though only incidentally, but has over looked that in this very decision the Calcutta High Court also pointed out that "the auction‑purchaser qua auction‑purchaser is neither a proper nor a necessary party to the proceeding and obviously any question of title as between him and the decree holder is outside the purview of this section." Furthermore, that in a case where the Board is satisfied that the decree‑holder is in possession of the property not on behalf of the ostensible purchaser but as a purchaser himself, then the ostensible purchaser if made a party to the proceeding before the Board should be dismissed from it altogether as an unnecessary party, as "his rights would not be affected in any way by the decision that might be given in this case." The award made in such a case would not bind the auction‑purchaser and "it would be open to him to set up his title in any appropriate proceeding that might eventually be started." This conclusion could not, in our opinion, have been reached if the decision on the question of benami was a decision within the ambit of the jurisdiction of the Debt Settlement Board to which finality had been granted by the provisions of the Act. Thus it appears to us that the decision in the above‑mentioned case also proceeds upon the basis that a question which may be gone into only incidentally for the purposes of determining as to whether the conditions specified in subsection (A I R 1948 Cal. 329) of section 37‑A have been fulfilled or not is a preliminary question upon which would depend the jurisdiction of the Board to determine whether the said conditions have been fulfilled or not and that the decision of the Board on such a preliminary question has not been made final. The learned Judge in the High Court of East Pakistan, it seems to us, has not attached any significance to the words of subsection (4) of section 37‑A in coming to the conclusion that an ostensible auction‑purchaser is also a necessary or a proper party in a proceeding under the said section. The power given by subsection (8) of the said section, on which reliance has been placed by the High Court to direct the setting aside of the sale in execution and the restoration of the property sold to the judgment‑debtor, is obviously limited to those cases in which the decree‑holder is in fact in possession or the other conditions mentioned in subsection (1) of that section have been fulfilled. The provision in the said subsection (8) for the eviction from the land of any person who may be in possession thereof does not also make all such persons parties who are to be bound by the award. For instance, if the land in dispute is in possession of a bona fide purchaser for value from a decree‑holder auction purchaser under a registered instrument, can the tenant judgment -debtor merely by alleging that the transaction is a colour-able transaction make an application under section 37‑A and obtain an award? Can it be said that such an alienation, although expressly saved by sub‑clause (iv) of clause (c) of subsection (1) of section 37‑A can, nevertheless, be set aside without any remedy being available to the purchaser of having his exemption established? We are unable to agree that such a construction follows from the provisions of subsection (8) of section 37‑A. All that the latter subsection provides is that persons on the land would be liable to be evicted if they have no better title to it or cannot in a competent Court establish their title. In this view of the matter we are of the opinion that the High Court was wrong in holding that the suit of the appellants was not maintain able. The next question that arises for consideration is whether the High Court had jurisdiction in second appeal to reverse concurrent findings of fact. The High Court has claimed the right to do so on the ground that those findings were based on conjectures and inadmissible evidence. It is pointed out to us that the High Court has itself fallen into error in taking this view due to its misreading of the judgments of the Courts below and the documents on the record. We have been unable to understand how the finding that there had been interpolation in the date given in the original of the notice purported to have been issued by the Board is based on inadmissible evidence merely because a certified copy of the original of the notice has been marked as an exhibit, namely, Exh.3. The original evidently was before the trial Court and after seeing it, it permitted a certified copy to be placed on the record. The notice was a public document under section 74 of the Evidence Act being a part of the record of the proceeding before the B Debt Settlement Board and, as such, it could be proved under section 65 of the Evidence Act by a certified copy thereof. There was no illegality, therefore, committed by the trial Court in admitting a certified copy only of the notice. The weight to be attached to such evidence was, however, a different matter. In the absence of the original it is true that the existence of the interpolation could not have been established with any degree of certainty but the High Court in second appeal had no jurisdiction to go into the question relating to the weight to be attached to a particular item of evidence. Its conclusion, furthermore, that "the present plaintiff in his anxiety to prove fraud has done this overwriting, writing 25 over 22, through the instrumentality of someone in the office of the Board before taking certified copy of it" is based on no evidence at all. The learned Judge in the High Court has himself, we regret to say, fallen into the same error of drawing upon conjectures for which he has found fault with the trial Court. On a perusal of the judgments of the Courts below and the evidence in this case we are not in a position to agree with the High Court that their findings were based purely on conjectures or surmises. The High Court also, it appears to us, was wrong in taking the view that the ground of fraud was not taken before the Appellate Officer. It would appear from the judgment of the trial Court that the Appellate Officer had in fact set aside the award on the ground that notices had been suppressed but in revision the District Judge restored the award without going into this question of suppression of the notices. The findings of fact of the Courts below the High Court should, in the circumstances, be restored, as they appear to us neither to be based upon conjectures nor upon inadmissible evidence nor to have been arrived at by any "error in the procedure provided by law." The question as to whether the suit was barred under section 42 of the Specific Relief Act now remains to be considered. It is admitted that the tenant judgment‑debtor had succeeded in getting possession restored under subsection (8) of section 37‑A of the Act before the appellants instituted the suit out of which the present appeal arises. In the circumstances, the seeking of the relief by way of delivery of possession had become a necessary consequential relief, which should have been claimed in their suit. Evidently this was not done to avoid the payment of ad valorem court‑fee. Learned counsel appearing for the appellants, however, contends that his appeal should not fall on that ground alone if it succeeds on the other grounds, for, even this Court can permit him to amend his plaint and pay the necessary court‑fees. The land consisting of some 3JJ acres, it is said, is a valuable piece of property and the appellants' claim thereto should not be defeated mainly on this technical ground, particularly, since both the Courts below the High Court had come to a clear finding that the appellants were not the benamdars of the decree holders but had actually auction‑purchased the property with their own money and in their own name. That this Court has the power to grant leave to amend even at the stage in which the matter is in the present case is not denied by the learned counsel appearing on behalf of the respondents, but it is contended that this power should not be exercised where its effect would be to take away a legal right which has accrued by lapse of time. It is pointed out that on the admission of the appellant Keramat Ali himself the respondents took possession of all but the homestead portion after the decision of the District Judge in the revision filed against the order of the Appellate Officer. This was sometime in 1944‑45 and, as such the claim of the appellants to possession has clearly become barred by limitation. The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where a legal right had ac‑rued by lapse of time if the special circumstances of the case outweighed such considerations. Vide: Md. Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer (11 MIA468) and Charan Das and others v. Amir Khan and others (AIR 1921PC50). That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power, no doubt, this Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Md. Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer. The present, in our view, is a case, which comes within this exception. The amendment prayed for does not seek to alter the nature of the suit. It only brings in an additional claim, which the appellants should have asked for in the suit. Ever since 1937, when they auction‑purchased the properties in dispute they have consistently, been endeavoring to assert their own right in these properties and it would now be a great hardship to defeat that right merely on this technical ground: We are, accordingly disposed to grant them leave to amend their plaint by adding a prayer for khas possession and to pay the additional court‑fees as in a suit for possession but upon the condition that they should pay to the respondents appearing in this appeal their costs both to this Court as well as in the Courts below as a condition precedent. For this purpose we remand the suit to the trial Court for enabling the appellants to make the necessary amendments to the plaint and thereafter for disposal of the suit in accordance with law and in the light of the observations made above. If the respondents wish to put in any additional written statement and to contest the suit on this question ‑of possession alone they will also be at liberty to apply to the trial Court for permission to do so. Additional evidence on this issue alone may also be led, if the respondents seek to challenge the right of the appellants to claim possession even on the date of the institution of the suit. For the reasons given above we allow this appeal, set aside the judgment and decree of the Courts below and remand the suit to the trial Court. A. H. Appeal allowed.