Aruna Kar Vs. Dr. Sarat Dash @ Nachhi - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - she also could not intimate her counsel regarding her absence, as she bad left on 29-10-1991. the case was dismissed for default on the ground of non-appearance of the applicant. a memorandum had been filed on that date that arrear maintenance as directed bad not been paid. this court bad the occasion to consider whether the original court dealing with an application under section 125 of the code has inherent powers. when beneficiaries are weaker rejections like destitution woman, spirit of article 15(3) of the constitution must be light meaning of section 125 and its sister clauses and provisions roust receive compassionate expansion of sense that the words used permit. true it ii, the court has to be satisfied about justifiable reason for non-appearance. ' he would however do well to dispose of the proceeding as expeditiously as practicable before 1993 acts in.a. pasayat, j.1. in this appeal under section 19 of the family courts act, 1984 (in short the 'act'), order of learned judge, family court. cuttack rejecting an application for restoration of petition under section 125 of the code of criminal procedure, 1973 (in short, the 'code') is assailed.a brief reference to the factual aspects is necessary for disposal of the appeal which involves a ticklish question of law, fact situation as described by the appellant runs as follows :the appellant filed an application under section 125 of the code claiming maintenance on the ground that she is the legally married wife of respondent who has sufficient means to maintain her, she is unable to maintain her, the respondent has neglected and refused to maintain her and she is not disqualified under any of the provisions enumerated in section 125 of the code. there appears to be long drawn series of litigations between parties, with which we are not presently concerned. on 26-11-1990 appellant filed an application under section 125 of the code before learned sub-divisional judicial magistrate, sadar, cuttack. subsequently it was transferred to the family court on 30-3-1991, and interim maintenance was allowed by the said court on being moved by the appellant. against the said order, respondent preferred civil revision no. 555 of 1991 in this court. after hearing the parties, this court was pleased by demand the matter to the family court for fresh adjudication. learned judge, family court directed payment of rs. 200/- per month as interim maintenance from the date of application. the matter was posted to 4-11-1991 for payment of arrear maintenance and hearing. on that day, appellant could not attend the court as she had gone to puri earlier for religious ceremonies. she also could not intimate her counsel regarding her absence, as she bad left on 29-10-1991. the case was dismissed for default on the ground of non-appearance of the applicant. a memorandum had been filed on that date that arrear maintenance as directed bad not been paid. an application was filed for restoration of the case. though the same was styled as under section 126(2) of the code, it is accepted that the petition was really for reiteration and provisions of sec(.ion 126(2) of the code have no application to the case.2. the application was resisted by respondent on the ground that reasons indicated for non-appearance are not factually correct. learned judge, family court rejected the application though he hold that he had power to restore the petition by exercise of inherent powers. reliance was placed for such view on a decision of this court in rekha jena v. manoranjan jena, ilr 1965 cutt. 556. learned counsel for appellant in support of appeal has submitted that the approach of learned judge, family court is erroneous. considering the fact that appellant has been ventilating her grievances since about two decades, the inference that there; was no justifiable reason for her absence or that she was not vigilant is not enable in law. learned counsel for respondent however, submitted that learned judge, family court had no power of restoration and he was not correct in his conclusion that he had power to restore. it is however, submitted that rejection has been rightly done.3. we shall first deal with the contention relating to the power of learned judge, family court to restore an application under section 125 of the code, which has been dismissed for default. as indicated above, learned judge, family court held that he had power to do so relying on the decision in rekha jena's case (supra). in that decision conclusion was to the effect that though there if no provision similar to order 9 of the code of civil procedure, 1908 (in short, the 'c.p.c.'), yet principles embodied therein are applicable and the court has inherent jurisdiction to remedy wrong under certain circumstances. it was held that there is no provision to deal with the case of default under section 488 of the code of criminal procedure, 1898 (in short, (he 'old code'). it was within the powers of magistrate to restore an application which has been dismissed for default. in essence, n was held that by exercise of inherent power the court could direct restoration. in bindeshwari v. kali, air 1977 sc 2432, it was observed by the apex court that (here is no provision in the code empowering a magistrate to review and recall an order passed by him and the coda did not contain a provision for exercise of inherent powers by lower courts which section 561-a of the old code similar to section 482, conferred on the high court alone. in stale of orissa v. ram chandra agarwala, air 1979 sc 87, it was held (bat sections 369 and 424 of the old code did not restrict prohibition contained under section 369 to the trial court alone, it applied even to the high court and the said court could not invoke the provisions of section 561-a of the old code for exercising a power which has been specifically prohibited by the code. this court bad the occasion to consider whether the original court dealing with an application under section 125 of the code has inherent powers. in srimati sabita sahoo v. captain khirod kumar sahoo, (1990) 3 ocr 315 : 71 (1991) clt (notes-2) 1 and dr. p.p. wilson v. k. sundaramma and anr., (1991) 4 ocr 324 : 72(1991) clt 359, it was held that no court except high court can exercise inherent powers. the first case related to an application for amendment and the second case related to an application for stay during tendency of an application under section 126(2) of the code. in the aforesaid premises, the inevitable conclusion is that no court other than the high court has inherent powers. observations in rekha jena's cue (supra) to the contrary are not correct. question however, arises whether the family court could exercise its ancillary or incidental powers for restoration. there is no specific power for dismissed of an application for non-prosecution. obviously, the court in exercise of its implies powers can direct dismissed for non-prosecution. it is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective, (sutherland's statutory construction, third edition. articles 5401 and 5402). in domat's civil law (cushing's edition) volums 1 at page 88, it has been stated :'it is the duty of (he judges as apply the laws, not only to what appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.'maxwell on interpretation of statutes, eleventh edition, contains a statement at page 350 that where an act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are necessary to its execution. a somewhat similar situations in a proceeding under orissa home rent control act, 1967 came under scrutiny in kandula prabhakar rao v. tumulu lakshmanamurty and anr., 64 (1987) clt 713 : 1987 (ii)olr 498. it was held that notwithstanding absence of inherent powers, restoration can be directed by exercise of implied .powers. therefore, it stands to reason that the court in exercise of 'ancillary and incidental power can direct restoration even though there is no specific provision in the code. the situation may be viewed in the background of section 126(2) which permits a husband to seek setting aside of an ex pane order against him.4. keeping in view the benign provisions in section 125 enacted to ameliorate economic condition of neglected wife and discarded divorces and to save enumerated persons from vagrancy and destitution, welfare laws must be so read as to be effective delivery systems of salutary objects sought to be served by the legislature. when beneficiaries are weaker rejections like destitution woman, spirit of article 15(3) of the constitution must be light meaning of section 125 and its sister clauses and provisions roust receive compassionate expansion of sense that the words used permit. similar sentiment was expressed by the appex court in bai tahira v. ali hussein fidsalli chothia and anr., air 1979 sc 362.5. coming to the factual backgrounds, we find that two decades of litigation has not been sufficient to weaken the spirit with which parties have been litigating. the fact that interim maintenance was granted by the learned judge, family court, shows existence of prima facie material regarding entitlement of the appellant during tendency of the proceeding. the reason advanced by the appellant to justify her non-appearance does cot appear to be so absurd and unreasonable as to warrant outright; rejection. a party does not gain by not attending the court on the dates fixed. unless a callous and negligent attitude is borne out from record, a liberal attitude has to be adopted when a party shows cause for non-appearance. a rigidistic approach while dealing with cause of non-appearance in a case for maintenance under section 125 of the code is likely to frustrate the very purpose for which the provision was enacted. any hair splitting of facts situation would not further ends of justice. true it ii, the court has to be satisfied about justifiable reason for non-appearance. but such matters cannot be weighed in golden scales. on the scales of justice and equity, the balance lean heavily in favour of the appellant. therefore, we set aside the order of learned judge, family court rejecting the application for restoration. there is substance in the submission of the learned counsel for appellant that a proceeding under section 125 of the code needs expeditious disposal. we direct chat parties shall appear before learned judge, family court without any further notice on 17-9-1992 when matter shall either be taken up by him or be adjourned to such date as deemed fit and expedient.' he would however do well to dispose of the proceeding as expeditiously as practicable before 1993 acts in.