Judgment:
Civil revision petition preferred against the order dated 16.2.2012 passed by the X Asst.City Civil Court, Chennai, in E.P.No.3964 of 2010 in O.S.No.654 of 2004.
ORDER
1. Inveighing the order dated 3 16.2.2012 passed by the X Asst.City Civil Court, Chennai, in E.P.No.3964 of 2010 in O.S.No.654 of 2004, this civil revision is filed.
2. Heard both sides.
3. In a few broad strokes, the germane facts could be encapsulated thus:
The respondent herein filed the E.P. for arrest, by way of enforcing the recovery of the decreetal dues. After hearing both sides, the Executing Court ordered arrest.
4. Being aggrieved by and dissatisfied with the order of the Executing Court, this revision is focussed by the judgement debtor on various grounds.
5. The learned counsel for the revision petitioner/defendant/judgement debtor, by placing reliance on the grounds of revision would put forth and set forth his arguements, which could tersely and briefly be set out thus:
(i) The lower Court committed gross error in understanding the law as though even a sick man can be put in civil prison, in the process of recovering the dues, once it is found to the Court's satisfaction that he had means to discharge the debt.
(ii) Over and above that the lower Court also failed to analyse the facts to arrive at the conclusion that the revision petitioner herein/judgement debtor had sufficient means to discharge the decreetal dues. There should be clear finding to the effect that there was wilful negligence in discharging the dues on the part of the judgement debtor, despite he having had the means.
Accordingly, the learned counsel would pray for setting aside the order of the lower Court.
6. Per contra, the learned counsel for the respondent/plaintiff/decree holder would put forth and set forth his arguements, which could pithily and precisely be set out thus:
(a) The lower Court appropriately and appositely considered the document executed by the revision petitioner/judgement debtor and held that the document is nothing but a 'Will' and the judgement debtor is in possession and enjoyment of the house property and receiving the rents also. As such, the law does not enjoin the Executing Court to give any finding that there was wilful negligence on the part of the judgement debtor in paying the decreetal dues and it is enough if sufficient evidence is placed before the Executing Court to get itself satisfied about the means of the judgement debtor.
(b) There is nothing to indicate that the judgement debtor was suffering from any serious illness and it cannot be stated that he cannot withstand the civil prison life. In such a case, the order of the lower Court warrants no interference in revision.
7. The points for consideration are as under:
(i) Whether a person suffering from illness could be imprisoned in civil prison in the process of recovering the decreetal dues and whether in this case, the Executing Court was justified in ordering arrest of the judgement debtor, despite giving a finding that the judgement debtor was suffering from ill health?
(ii) Whether there is any perversity or illegality in the finding of the Executing Court that the judgement debtor had sufficient means to discharge the decreetal dues and despite that he did not discharge the same?
8. Both these points are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with each other.
9. At the outset, I would like to fumigate my mind with the following provisions of the law:
"Sec.59 of C.P.C. - Release on ground of illness (1) At any time after a warrant for the arrest of a judgement-debtor has been issued the Court may cancel it on the ground of his serious illness.
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10. The learned counsel for the respondent/decree holder, by citing the very same extracted provisions of the law, would develop his arguement to the effect that in the process of the judgement debtor undergoing imprisonment, if it is found that he is suffering from illness, he could be released, but the Executing Court is not enjoined to go into all those aspects at the time of ordering arrest. The learned counsel would also try to differentiate and distinguish between arrest and detention
11. Whereas, the learned counsel for the revision petitioner/judgement debtor would submit that there was a candid admission on the part of the decree holder during cross-examination, that the judgement debtor was suffering from ill-health and virtually even now he is suffering from Paralytic stroke. Those admitted facts are more than sufficient to buttress and fortify Exs.R1 to R4 filed by the judgement debtor to prove his ill-health. Accordingly, the learned counsel would pray for setting aside the order of arrest.
12. Absolutely there is no embargo on the part of the Executing Court to go into the question, even at the time of arrest itself, as to whether the judgement debtor had sufficient means or not, to discharge the decreetal dues. Similarly the Executing Court is expected to consider the plea of the judgement debtor that he is suffering from ill-health and that his health condition will not permit him to undergo imprisonment in the civil prison.
13. At this juncture, I recollect the maxim 'Verba genaralia generaliter sunt intelligenda General words are to be understood generally.
14. I would like to refer to the famous treatise 'Maxwell on the interpretation of Statutes 12th Edition'. Certain excerpts from it would run thus:
"The mischief rule:
In Heydon's Case, in 1584, it was resolved by the Barons of the Exchequer (at p.7b) "that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1st). What was the common law before the making of the Act. (2nd). What was the mischief and defect for which the common law did not provide. (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, (4th). The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono public." In 1898, Lindley M.R.said: "In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon's Case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief." Although judges are unlikely to propound formally in their judgements the four questions in Heydon's Case, consideration of the "mischief" or object of the enactment is common, and will often provide the solution to a problem of interpretation.
In the well-known case of Smith v. Hughes, for example, it was held that prostitutes who attracted the attention of passers-by from balconies or windows were soliciting "in a street" within section 1(1) of the Street Offences Act 1959. "For my part," said Lord Parker C.J. (at p.832), "I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes." Viewed in that way, the precise place from which a prostitute addressed her solicitations to somebody walking in the street became irrelevant."
"The golden rule:
The so-called "golden rule" is really a modification of the literal rule. It was stated in this way by Parke B.: "It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further." "If," said Brett L.J., "the inconvenience is not only great, but what I may call an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if you read it in a manner in which it is capable, though note its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning." The application of this rule, and its limits, will be seen in the parts of this work devoted to construction with reference to the consequences, and construction to avoid inconvenience and injustice, and to prevent evasion. Here, a few recent examples of the application of the golden rule will be given.
Construction of words "in Bonam Partem":
Words are prima facie to be taken in their lawful and rightful sense. Where an Act, for instance, gave a certain efficacy to a fine levied on land, it referred only to a fine lawfully levied. The landlord's claim to recover arrears of rent out of goods seized in execution by the bailiff of a county court under section 160 of the County Courts Act 1888 depended upon whether the seizure was lawful: if the goods did not belong to the debtor, and the seizure was consequently unlawful, the claim under the section could not arise. A similar principle was applied to the construction of a covenant by a tenant to pay all parliamentary taxes: it included only such as he might lawfully pay, and not the landlord's property tax which it would have been illegal for him to agree to pay."
15. The golden principle of interpretation of law on this issue would warrant the Court to construe S.59(1) of C.P.C. that the law enjoins the Court not only to release a person from civil prison, if he is suffering from ill-health, but also not to order his arrest if he is suffering from ill-health. Wherefore it is to be understood that even before imprisonment or ordering arrest, if he is found suffering from ill-health, he should not be imprisoned in civil jail and the authority, before ordering arrest or detention can very well consider the plea of the judgement debtor concerned and give a finding thereon and accordingly pass orders.
16. In this connection, the learned counsel for the respondent herein/decree holder would cite the decision of this Court reported in 1996-1-LW-90 SARAVANAN AND 4 OTHERS V ANNAMALAI and canvass the case to the effect that the question of considering the ill-health of the judgement debtor would arise only after issuing the warrant.
17. A bare perusal of the said judgement cited would reveal that factually the said case was different from this case. There, the plea was that at one point of time, the judgement debtor was taking treatment for six months in view of the injury sustained by him in the Bangladesh War and the Court in those circumstances held that before issuing the warrant the Court was not expected to go into the illness or otherwise of the judgement debtor.
18. However, the learned counsel for the revision petitioner/judgement debtor would cite the following decision of the Honourable Apex Court:
1969 K.L.T.927 XAVIER V. CANARA BANK LTD, certain excerpts from it would run thus:
Civil P.C.(1908), S.59 Inhibition on arrest of a judgement debtor who is seriously ill Provision must be liberally construed Scope of the Section.
Section 59 CPC inhibits arrest of a judgement debtor who is seriously ill. The humanitarian impulse of the section must not be lost sight of when applying it to the concrete facts of a particular case. S.59 reasons justice with mercy and justice is a co-efficient of law. The beneficent provision of S.59 should be construed in a liberal and not in a narrow way.
Evidence Medical Certificate Doctor who issued it not examined Evidence is written hearsay Whether such certificates can be acted upon Regour of the rule of hearsay Relaxation called for.
While it is right that a mere medical certificate is perhaps written hearsay, it is true that many courts, for example, in applications for adjournments in criminal cases, do act on such certificates on occasions. The rule of hearsay has had its day and if applied to day, in all its amplitude, may even harm the very object of discovering the truth. In England, legislative inroads into the rule of hearsay have been made. Parliament in India too may, one may hope, modify the rigour of the law of evidence which totally excludes even written hearsay, so as to suit the conditions of our country and to help the quest for truth by courts.(emphasis supplied)
19. There is one other decision of the Honourable apex Court cited on the side of the revision petitioner/judgement debtor reported in AIR 1980 SUPREME COURT 470 JOLLY GEORGE VARGHESE AND ANOTHER V. THE BANK OF COCHIN, certain excerpts from it would run thus:
"10. Equally meaningful is the import of Art.21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Art.21 read with Arts.14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi's case (1978) 1 SCC 248 as developed further in Sunil Batra v. Delhi Administration (1978) 4 SCC 494, Sita Ram v. State of U.P.(1979)2 SCR 1085 and Sunil Batra v. Delhi Administration, W.P.No.1009 of 1979. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of Daridra Narayan h(land of poverty) is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Art.21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Art.11 of the Covenant. But this is precisely the interpretation we have put on the proviso to S.51, C.P.C.and the lethal blow of Art.21 cannot strike down the provision, as now interpreted.
11. The words which hurt are "or has had since the date of the decree, the means to pay the amount of the decree". This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at the later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Art.11 (of the Covenant) and Art.21 (of the constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate of recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishones disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and straitened circumstances will pay prominently. We would have, by this.'(emphasis supplied)
20. A cumulative reading of the above precedents of the Honourable Apex Court would enlighten the Courts to the effect that in the process of recovering the decreetal dues, the Court cannot mechanically order for arrest. Any distinction attempted to be made relating to the stage at which enquiry relating to illness has to be made, so to say before issuing warrant and after issuing warrant, or before detention and after detention, would amount to making distinction between tweedle-dum and tweedle-dee, six of the one and half of a dozen of the other.
21. The learned counsel for the respondent/decree holder would submit that due opportunity was not given to the decree holder to establish that the judgement debtor was in a fit state of health for being imprisoned.
22. Whereas, the learned counsel for the revision petitioner/judgement debtor would submit that as many as four documents were marked on the side of judgement debtor and the decree holder herself admitted that the judgement debtor was suffering from ill-health and in such a case, the Executing Court, after giving a finding that the judgement debtor was suffering from ill-health, was not justified in simply ordering arrest.
23. A plain reading of the order of the lower Court would amply make the point clear that the lower Court was under the wrong impression that it was enjoined to look into the means of the judgement debtor and not any other aspect and that was why the Executing Court itself lightly viewed its own finding relating to ill-health and consequently ignoring its own finding, simply ordered arrest.
24. I could see considerable force in the submission made by the learned counsel for the decree holder that due opportunity also has to be given to the decree holder to rebut the evidence, which the judgement debtor adduced and in that connection, the matter has to be remitted back to the Executing Court for considering the issue relating to illness, after giving due opportunity of being heard to both sides.
25. Regarding the means enquiry is concerned, the lower Court correctly approached the matter and gave a finding that the judgement debtor was in receipt of rental income. A decree holder cannot be expected to prove the financial sources of the judgement debtor, when the latter tries all his level best to keep the evidence relating to his source of income away from the knowledge of the decree holder. As such, I could see no perversity or illegality in the finding of the Executing Court relating to the means is concerned.
26. The contention on the side of the learned counsel for the judgement debtor that there is no specific finding relating to the wilful default fails to carry conviction with this Court for the reason that when facts are available, adverse inference has to be drawn.
27. The E.P. is of the year 2010 and the order was passed in 2011. In the meanwhile, there is nothing to indicate on the side of the judgement debtor as to what steps he had taken to raise funds or what steps he had taken to discharge the dues and no accounts was produced on the judgement debtor's side.
28. No doubt, the defendant/judgement debtor might be pleading about his ill-health, but he is not living in isolation. He is living with his children and family members. As such, in these factual circumstances, I am of the view that the finding relating to the means of the defendant/judgement debtor to discharge the debt, warrants no interference. But the approach of the lower Court in simply ordering arrest, ignoring the ill-health of the defendant warrants interference.
29. Accordingly, the order of arrest is set aside and the matter is remitted back to the Executing Court, so as to give due opportunity to both sides to adduce oral as well as documentary evidence relating to the illness or otherwise of the judgement debtor and the Court is expected to give its specific finding thereon. In the event of finding that the judgement debtor is suffering from illness of such a nature that he would not be able to withstand the prison life in the civil prison, then the Court will not be justified in issuing arrest warrant and detaining him. But on the other hand, if his ill-health is not so serious enough then in that case arrest and detention could follow.
30. With the above observation, the civil revision petition is disposed of. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.