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Mahim Chandra Datta Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
Subject;Constitution
CourtGuwahati High Court
Decided On
Case NumberS.C.A. No. 2 of 1952
Judge
ActsConstitution of India - Articles 132(1), 133, 133(1) and 133(3); Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952
AppellantMahim Chandra Datta
RespondentUnion of India (Uoi)
Appellant AdvocateG.K. Deb, Adv.
Respondent AdvocateD.N. Medhi, G.A. (Sr.)
DispositionPetition allowed
Excerpt:
- ram labhaya, ag. c.j.1. this is an application for leave to appeal to the supreme court of india. leave is sought under the provisions contained in article 133, clause (1) (c), constitution of india read with section 109(c), civil p. c., and also under article 132 (1) of the constitution. 2. the order of this court sought to be appealed from was passed in an appeal from the order of the learned subordinate judge, u. a. d, at silchar in misc. case no. 5 of 1950. the learned subordinate judge had disallowed certain objections raised by the judgment-debtor (the union of india) to the execution of the decree. the judgment-debtor appealed to this court. this appeal succeeded, but not on the basis of the objections that were raised to the execution of the decree in the court of the learned.....
Judgment:

Ram Labhaya, Ag. C.J.

1. This is an application for leave to appeal to the Supreme Court of India. Leave is sought under the provisions contained in Article 133, Clause (1) (c), Constitution of India read with Section 109(c), Civil P. C., and also under Article 132 (1) of the Constitution.

2. The order of this Court sought to be appealed from was passed in an appeal from the order of the learned Subordinate Judge, U. A. D, at Silchar in Misc. case No. 5 of 1950. The learned Subordinate Judge had disallowed certain objections raised by the judgment-debtor (the Union of India) to the execution of the decree. The judgment-debtor appealed to this Court. This appeal succeeded, but not on the basis of the objections that were raised to the execution of the decree in the Court of the learned Subordinate Judge. During the pendency of the appeal in this Court, the Indian Independence Pakistan Courts (Pending Proceedings) Ordinance, 1951 (6 of 1951) was promulgated. Before the appeal could be heard, the Ordinance was substituted by the Indian Independence Pakistan Courts (Pending Proceedings) Act of 1952 (9 of 1952).

3. It was held, in view of the provisions contained in Section 3, Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952 that the decree in question could not be given effect to by any Court or authority in India.

4. On behalf of the decree, holder, two contentions were raised, namely,-(1) that the Act was not intended to have any retrospective effect, and that in any case, it could not be applied to pending proceedings; and (2) that the Act itself was ultra vires inasmuch as it offended against certain provisions contained in the Constitution. These contentions did not prevail for the reasons given in the order of this Court.

5. The learned counsel for the petitioner now urges that both the questions which were raised on behalf of the decree-holder at the hearing of the appeal were questions of great public importance. The decision of these questions by the Supreme Court would result in a precedent governing numerous cases. The learned counsel, therefore, contends that notwithstanding the fact that the subject-matter of the suit has a defined pecuniary value, it is a fit case for leave under Article 133, Clause (1) (c), Constitution of India. We think that the two questions raised are no doubt questions of considerable public importance. The Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952, rendered ineffective certain decrees and orders passed by Courts in Pakistan against a Government in India. It also provided an alternative remedy for persons who had secured such decrees or orders. The decrees and orders passed by Courts in Pakistan which are hit by the Act ought to be fairly numerous. This is indicated by the very need for the Act itself. The questions relating to the validity and the effect of the Act, therefore, do assume wide public importance. They are questions of law. They are also substantial questions in the sense that their decision was necessary for the disposal of the case. The case fulfils the test laid down in Hafiz Mahomed v. Shiamlal, A.I.R. 1944 ALL. 273 (F.B.), on which Mr. Medhi has relied. The questions raised had to be decided in order to dispose of the case. In fact the decision on the questions raised was unavoidable. They may also be regarded as debatable. These questions are not covered by any previous decisions or authority.

6. It is obvious that the subject-matter of the litigation has a defined pecuniary valuation. It is below Rs. 20,000. But it has not been contended that on that ground the case would be outside the ambit of Article 133(1)(c), Constitution of India. There are no doubt cases in which the view expressed has been that Clause (c) of Section 109, Civil P. C., is intended to meet special cases such as those in which the dispute is not measurable in money even though it may be of great public or private importance. This view is based on an interpretation of a decision of their Lordships of the Privy Council reported in Radhakrishna Aiyar v. Swaminatha Aiyar, A.I.R. 1921 P.C. 25. This case was considered in the F. B. decision of the Lahore High Court reported in Mt. Shankri v. Milkha Singh, A.I.R. 1947 Lah. 304. The learned Judges of the Lahore High Court expressed the view that the P. C. decision did not support this view and relying particularly on Udoy Ghand Pannalal v. P. E. Guzdar & Co., A.I.R. 1925 P.C. 159 held that the discretion which was vested in the Court by Section 109(c) could also be exercised in cases where the subject-matter of the dispute could be defined or valued in money. We are in respectful agreement with this view. We do not find anything in the language of Section 109, Clause (c), C. P. C., which should justify limiting its application to such cases alone in which the subject-matter of the dispute cannot be valued in money. No such restricted effect was contemplated. We do not consider it necessary to consider in detail the authorities in which the contrary view has been expressed. Mr. Medhi, the learned counsel for the opposite party, has not disputed the correctness of this view. A certificate for leave under Section 109, Clause (c), C. P. C., read with Article 133, Clause (1) (c) may not, therefore, be refused on the ground that the subject-matter of the dispute in this case has a defined pecuniary value,

7. Leave to appeal has also been prayed for under Article 132, Clause (1) of the Constitution on the ground that the case involves a substantial question of law as to the interpretation of the Constitution. As we have come to the conclusion that this is a fit case for leave to appeal to the Supreme Court under Article 133(1)(3), it is not necessary to grant leave also under Article 132 of the Constitution. Article 133, Clause (3) permits any party appealing to the Supreme Court under Clause (1) of Article 133 to urge as a ground in such appeal that a substantial question of law as to the interpretation of the Constitution has been wrongly decided.

8. By ground No. 10 of the petition for leave it is urged that the decree in question could form the basis of a suit and, therefore, the execution application ought to have been allowed to be treated as a suit. This contention was not raised at the hearing of the appeal and, therefore, cannot be considered as a ground for allowing leave, though for the reasons given above, we hold that this is a fit case for appeal to the Supreme Court of India under Section 109(c), C. P. C., read with Article 133(1)(c), Constitution of India. Allowing therefore, the application we direct that a certificate shall issue accordingly.

Deka J.

9. I agree.


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