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Bhairavasingh Malojirao Ghorpade and anr. Vs. Shankar Rao Bindu Rao Padaki and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1869 of 1973
Judge
Reported inAIR1976Kant164; ILR1976KAR1279; 1976(1)KarLJ418
ActsCode of Civil Procedure (CPC), 1908 - Sections 86, 86(1) and 87B; Specific Relief Act, 1963 - Sections 6
AppellantBhairavasingh Malojirao Ghorpade and anr.
RespondentShankar Rao Bindu Rao Padaki and ors.
Appellant AdvocateU.L. Narayana Rao, Adv.
Respondent AdvocateS.L. Benadikar, Adv.
Excerpt:
.....of the suit. but that was a case where the recognition of the ruler bad not been with drawn on the date of the institution of the suit as in the present case. balakrishna mahdeo) the suit bad been instituted without a certificate under the pensions act (xxiii. of 1871). it was held that the suit was not bad ab initio but that the court is only precluded by taking cognizance of it until the certificate is produced, following the decision of the privy council in (1881) 9 ind app 8 (pc) (nawab muham. , after 15-12-1970. it was open to the court to come to the conclusion that the suit became incompetent in the absence of the necessary certificate under section 87-b after 15-12-1970. but since the suit continued to be pending even on 29-7-1971, the date when the plaintiff applied for the..........filed by defendant-1 on 6-7-1971 under section 87-b read with sections 85 and 86 of the code of civil procedure, requesting the court to dismiss the plaintiff's suit in limine as being not maintainable. the application was dismissed by the civil judge.2. the first respondent brought the suit on 5-12-1970 under section 6 of the specific relief act, 1963 for possession of the suit immoveable properties. defendant-1 was the former ruler of mudhol state. defendant-2 (respondent-2) is his mother, defendant-3 is the general power of attorney-holder from defendants 1and 2. respondents 3 to 12 (defendants 4 to 13) are the relatives of defendants 1 and 2 in whose favour certain transfers in respect of the suit properties have been effected. the case of the plaintiff is that all the suit.....
Judgment:

Sadanandaswamy, J.

1. This revision petition has been referred to a Division Bench by Bhimiah, J. The revision petition is presented against the order dated 6-8-1973 passed on I. A. VI by the Civil judge, Bagalkot, in 0. S. 38/70. The petitioners are defendants 1 and 3 in the suit. I. A. Vl is an application filed by defendant-1 on 6-7-1971 under Section 87-B read with Sections 85 and 86 of the Code of Civil Procedure, requesting the Court to dismiss the plaintiff's suit in limine as being not maintainable. The application was dismissed by the Civil judge.

2. The first respondent brought the suit on 5-12-1970 under Section 6 of the Specific Relief Act, 1963 for possession of the suit immoveable properties. Defendant-1 was the former Ruler of Mudhol State. Defendant-2 (Respondent-2) is his mother, Defendant-3 is the General Power of Attorney-holder from defendants 1and 2. Respondents 3 to 12 (defendants 4 to 13) are the relatives of defendants 1 and 2 in whose favour certain transfers in respect of the suit properties have been effected. The case of the plaintiff is that all the suit properties which consist of lands in Shirol village, Mudhol taluk, belonged to defendants 1 and 2, defendants 1 and 2 agreed during the month of January 1960 to sell the suit properties to the plaintiff for Rupees six lakhs, the plaintiff paid a sum of Rupees one lakh as advance and paid another sum of Rupees one lakh during 1969, he was put in possession of the properties, there was an agreement between the plaintiff and defendants 1and 2 for payment of the balance of the consideration in five equal annual instalments and that in spite of the same plaintiff has been dispossessed of the suit 12 properties by defendants 1 to 3 and their 12 men on 18-8-1970. It is the further case of the plaintiff that defendants 1 and 2 have effected transfers of some of the suit proper ties in favour of defendants 4 to 13, but that those transfers are all bogus and are intend ed to save the Properties from the claim of the plaintiff.

3. In the affidavit accompanying I. A. VI the third defendant has sworn to the fact that deferndant-1 was a Ruler of the former Mudhol State before its merger with the Indian Union, that defendant-1 thereafter agreed to merge the State with the Indian Union, that the Central Govern went has, by Notification dated 1-4-51, specified Mudhol State as a former Indian State for the purpose of Section 87-B of the Code of Civil Procedure, that defendant-1 is recognised by the President of the Indian Union as the Ruler of the former State of Mudhol, that the plaintiff has not obtained the consent of the Central Government to file the suit under Section 87-B of the Code of Civil Procedure and that therefore the suit is not maintainable.

4. In the objection statement filed on 2-3-1971, the plaintiff stated that the suit was filed when the privileges of the Rulers of the former Indian States had been extinguished by the Ordinance issued by the President of India, that the decision of the Supreme Court striking down the Ordinance : [1971]3SCR9 was rendered subsequent to the institution of the suit but that be has approached the Central Government for the necessary sanction.

5. The application I. A. VI was rejected by the Civil judge on 5-1-1973 as not maintainable and premature. Defendants 1 to 3 preferred Civil Revision Petition No. 1713/73 to this Court. The revision petition was allowed, the order of the lower court was set aside and the Civil judge was directed to dispose of the application on its merits. Further arguments were heard by the lower court on 26-7-1973.

6. The plaintiff filed an application to the Central Government on 29-7-1971 and obtained its sanction under Section 87-B of the Code of Civil Procedure under the Certificate dated, 10-10-1971. The certificate states that under the provisions of sub-section (1) of Section 86 read with Section 87-B of the Code of Civil Procedure the Central Government consents to a suit being instituted by the plaintiff in the Court of competent jurisdiction against the first defendant in respect of the matters specified in the application dated 29-7-1971, a copy of which is annexed to the certificate. Subsequently the Constitution (26th Amendment) Act, 1971, deprived the Rulers of former Indian States of their special privileges. Hence, according to the plaintiff the suit would be maintainable against defendant-1 even without the consent of the Central Government under Section 87-B of the Code of Civil Procedure.

7. The relevant dates for the purpose of the decision of this case are these. The plaintiff is alleged to have been dispossessed on 18-8-1970. The order of the President of India de-recognising defendant-1 as Ruler was issued on 6-9-1970 and notified in the Gazette of India of 19th September 1970. The plaintiff filed the suit on 5-12 1970. The judgment of the Supreme Court' in : [1971]3SCR9 (Madhav Rao Scindia v. Union of India) holding that the order of the President was illegal was pronounced on 15-12-1970. The plaintiff applied for the consent of the Central Government under Section 87-B of the Code of Civil Procedure on 29-7-1971. The certificate was granted by the Central Government on 10-10-1971. The Constitution (26th - Amendment) Act, 1971 came into effect on 29-12-1971. I. A. VI was filed on 7-6-1971.

8. The order of the Court in : [1971]3SCR9 (Madhav Rao Scindia v. Union of India) reads as follows: -

'In accordance with the opinion of the majority the petitions are allowed and writs will issue declaring that the orders made by the President on September 6, 1970 challenged here, were illegal and on that account inoperative and the petitioners will be entitled to all their pre-existing rights and privileges including the right to privy purses, as if the orders have not been made.'

It is therefore contended by Mr. U. L. Narayana Rao, appearing for the petitioners, that the order of the President de-recognizing defendant-1 must be deemed to have been not in existence at all even from the date it was promulgated and that consent of the Central Government was necessary for the institution of the suit even on 5-12-70. In ILR 41 Cal 1125 = (AIR 1914 Cal 806) (SB) (Gopeshwar Pal v. Jiban Chandra Chandra) a of the Calcutta High Court held that where the application of the provisions of an Amending Act makes it impossible to exercise a vested right of suit, the Act should be construed as not being applicable to such cases, and it was observed as follows: -

'Here the plaintiff at the time when the amending Act was passed had a vested right of suit, and we see nothing in the Act as amended that demands the construction 'that the plaintiff was thereby deprived of a right of suit vested in him at the date of the passing of the Amending Act. It is Dot (in our opinion) even a fair reading of Section 184 and the third Schedule of the Bengal Tenancy Act, as amended, to hold that it was intended to impose an impossible condition under pain of the forfeiture of a vested right, and we can only construe the amendment as not applying to cases where its provisions cannot be obeyed. The law as amended may regulate the procedure in suits in which the plaintiff could comply with its provisions, but cannot (in our opinion) govern suits where such compliance was from the first impossible. The effect is to regulate not to confiscate. There are thus two positions; where in accordance with its provisions a suit could be brought after the passing of the amendment, it may be that the amendment would apply, but where it could not, then the amendment would have no application.' In (1877) 4 Ind App 127 (PC) (Delhi and London Bank v. Orchard) it was observed as follows: - 'It cannot be disputed that the construction put upon the Act by the High Court at Calcutta, if permissible, was equitable, and Prevented what must be admitted to be an inconvenience and injustice. Indeed, if the construction put upon the Act by the High Court at Bombay and by the Chief Court in the Punjab, is correct, a judgment creditor could not, after the three years, have enforced a judgment which was in force in the Regulation Provinces when Act XIV of 1859 was passed, or a judgment which was in force in the Punjab at the time when the Act was extended to that province, however diligent he might have been in endeavouring to enforce his judgment, and however unable, with the use of the utmost diligence, to get at the property of his debtor. Such a construction would cause great inconvenience and injustice, and give the Act an operation which would retrospectively deprive the creditor of a right which he had under the law as it existed in the Regulation Provinces at the time of the passing of the Act, and in the Punjab at the time of the introduction of it. Their Lordships are of opinion that such a construction would be contrary to the intention of the Legislature.'

In the present case, the President of India bad issued an Ordinance de-recognizing defendant-I prior to the date of the institution of the suit. Hence, even if the plaintiff had applied for a certificate under Section 87-B of the Code of Civil Procedure, it would not have been granted. The decision of the Supreme Court was rendered on 15-12-1070 striking down the President's Ordinance. The plaintiff could not anticipate that the Ordain, once issued by the President would be declared illegal when be instituted the suit. Hence, to require the plaintiff to have obtained the certificate before the institution of the suit on 5-12-1.970 would be asking the plaintiff to do the impossible. Hence, in the interests of justice the institution of the suit on 5-12-1970 must be held to be valid. It is no doubt true that according to the decision of the Supreme Court, the Ordinance issued by the President must be regarded as not having been in existence at all in the eye of law. But their Lordships were concerned in that case with the rights and privileges of the former Rulers. The decision of the Supreme Court cannot be construed as having the effect of invalidating the institution of the suit which had already been instituted prior to the date of the decision.

9. It is next contended by Mr. Narayana Rao that even if it is to be assumed that the Plaintiff need not have applied for consent of the Central Government on 5-121970 he was bound to apply for it after the decision of the Supreme Court on 15-12-1970 that he should have withdrawn the suit. applied for the grant of the certificate by the Central Government and to have filed the suit after obtaining the certificate. It is also urged that the suit abated on 15-12-1970 when the order of the President was declared to be illegal and the order must be deemed to have been not made at all according to the decision of the Supreme Court. it is therefore his contention that the suit could not be continued after 15-12-1970, that the court could not keep it pending till consent was obtained and that the suit did not get revived by the certificate subsequently obtained on 10-10-1971. But as there was no necessity to obtain the certificate of consent on 5-12-1970, the suit must be construed as having been validly instituted. The fact that the order of the President was declared illegal and not to have been made at all by the Supreme Court, cannot have the effect of rendering the institution of the suit invalid since the suit was instituted on a date earlier to the date of the decision. Since the suit was validly instituted on 5-12-1970, it cannot be said to have abated on 15-12-1970 in the absence of any provision of law which provides for such abatement. It may be that the suit was rendered incompetent after 15-12-1970 due to the absence of the consent under Section 87-B of the Code of Civil Procedure and the Court could either reject the plaint or dismiss the suit. But neither of these actions was taken by the court. The suit therefore must be deemed to have been pending in the lower court even after 15-12-1970 since it was not disposed of under any of the provisions of the Code of Civil Procedure.

10. The next contention of Mr Narayana Rao is that the consent obtained by the plaintiff is not for the continuation of the suit but only to sue defendant-1 and that therefore there is no compliance with the requirements of Section 87-B of the Code of Civil Procedure. The plaintiff applied to the Central Government for permission to continue the suit after stating in the application the circumstances under which the suit had been filed by him already. The certificate issued to the plaintiff reads as follows: -

'Government of India,

Ministry of Home Affairs,

New Delhi-1, the 10th October, 1971.

CERTIFICATE

This is to certify that under the provisions of sub-section (1) of Section 86, read with Section 87-B of the Code of Civil Procedure 1908 - (Act V of 1908) the Central Government consents to a suit being instituted by Sri Shankar Rao Bindurao Padaki in the court of competent jurisdiction against His Highness Raja Shrimant Bhairvasingh Malajirao Ghorpade, Raja of Mudhol in respect of the matters specified in the application dated 29th July 1971, a copy of which is hereto annexed.

BY ORDER AND IN THE NAME OF THE PRESIDENT

Sd/-

(Govinda Narain)

Secretary to the Government of India'

Since the certificate states that the Central Government consents to a suit being instituted against defeildant-1 and does Dot state that the Central Government consents to the continuation of the suit already instituted by the plaintiff, it is contended by Mr. Narayana Rao that it is not a valid consent for the continuation of the present suit. He has relied on the decision in : [1962]1SCR702 Mohanlal v. Sawai Man Singhji) in support of his contention that the consent of the Central Government is necessary under Sections 86 and 87-B of the Code of Civil Procedure for the continuation of the suit even if it is to be assumed that the present suit could be instituted on 5-12-1970 without such prior consent. In that case, the suit had been filed prior to the enactment of Section 87-B by Section 12 of the Code of Civil Procedure Alignment Act of 1951. The plaintiff applied to the Central Government for its consent but it was refused, It was contended on behalf of the plaintiff in that case that since the suit was filed before the enactment of Section 87-B the substantive right of the plaintiff to continue the suit could not be taken away in the absence of express language or plea of intendment and that only initiation of a suit and not the continuation of a suit already filed bef6re the section was enacted is covered by the words 'No Ruler of a foreign State may be sued in any Court......' in Section 86(1) of the Code of Civil Procedure. While rejecting the said contention it was observed as follows: -

'In our opinion these arguments cannot be accepted. The word 'sued' means not only the filing of a suit or a civil proceeding but also their pursuit through Courts. A person is sued not only when the plaint is filed, but is sued also when the suit remains pending against him. The word 'sued' covers the entire proceeding in an action, and the person proceeded against is sued throughout the duration of the action. It follows that consent is necessary not only for the filing of the suit against the ex-Ruler but also for its continuation from the time consent is required. In view of the amplitude of the word 'sued', it is not necessary to consider generally to what extent pending cases are affected by subsequent legislation or refer to the principles laid down in United Provinces v. Atiqa Begum Venugopala Reddy v. Krish Daswamy Reddiar , or Garikapati Veeraya v. N. Subbiah Chowdhury : [1957]1SCR488 . If the language of Section 86 read with Section 87-B were applicable only to the initiation of a civil suit, these cases might have been helpful; but since the words 'may sue' include not only the initiation of a suit but its continuation also, it is manifest that neither the suit could be filed nor maintained except with the consent of the Central Government. In Atiqa Begum's case , Varadachariar, J., referred to the two principles applicable to cases where the question of retrospectively, of law has to be considered. They are that vested rights should not be presumed to be affected, and that the rights of the parties to an action should ordinarily be determined in accordance with the law as it stood at the date of the commencement of the action. But the learned judge pointed out that the language of the enactment might be sufficient to rebut the first, and cited the case of the Privy Council in K. C. Mukerjee v. Ms. Ram Ratan Kuer . Here the matter can be resolved on the language of the enactment. The language employed is of sufficient width and certainty to include even pending actions, and the contrary rule applies, namely, that unless pending actions are saved from the operation of the new law, they must be taken to be affected. The word 'sued', as we have shown, denotes not only the start but also the continuation of a civil action, and the prohibition, therefore, affects not only a suit instituted after the enactment of Section 87-B but one which, though instituted before its enactment, is pending. In our judgment, the present suit was incompetent against the first defendant, the ex-Ruler of Jaipur.'

The words 'may be sued' in Section 86(1) of the Code of Civil Procedure have been held to include the continuation of a suit already The Certificate in the present case shows that consent to a suit being instituted has been given by the Central Government. It is not disputed that if consent had been given prior to the institution of the suit no fresh consent would have been necessary for the continuation of the suit. The consent to a 'suit being instituted' is equivalent to a consent stating that a former Ruler 'may be sued' under Section 86(1) and therefore the consent given in the present case includes consent to the continuation of the suit as held by the Supreme Court. Hence, the certificate must be understood to mean that consent has been given to the continuation of the present suit which was pending in the lower court on the date the certificate was granted.

11. On behalf of the Respondent plaintiff it is urged by Mr. Benadikar that the consent of the Central Government, though granted subsequent to the institution of the suit, relates back to the date of the institution of the suit. But it is not necessary to consider this contention since, in our opinion, the constitution of the suit on 5-12-1970 was valid even though no consent had been obtained on that date. By virtue of the Con stitution (26th Amendment) Act under which the privileges of the former Indian Rulers were abolished, it became no longer necessary to obtain the consent of the Central Government under Section 87-B of the Code of Civil Procedure. Hence, after 29-12-1971, it could not be said that the suit instituted by the plaintiff was in6ompetent for want of consent of the Central Government. Since the suit was pending on the date of the Constitution (26th Amendment) Act coming into force the Plaintiff was entitled to continue the suit against defendant-1 after 29-12-1971.

12. Mr. Narayana Rao relied on : AIR1967Ori160 (Orissa Cement Ltd. V. Union of India) wherein it is held that the terms of Section 80 of the Code of Civil Procedure are imperative and admit of no exceptions or implications. In : AIR1964AP172 (Union of India v. Eastern Match Co.) it has been held that the terms of Section 80 C. P. C. are imperative and that a suit not complying with its provision cannot be entertained by any court and if instituted, must be rejected under Order VII Rule 11 C .P .C But in the present case, it was not necessary for the plaintiff to obtain the consent under Section 87-B C. P. C. on the date of the institution of the suit.

13. Mr. Narayana Rao next relied on the decision in (1897) ILR 21 Born 351 (Cbandulal v Awad). In that case the consent of the Governor General in Council under Section 433 of the Civil Procedure Code (Act XIV of 1882) had not been obtained or applied for when the suit was filed, but it was given more than a year afterwards. It was held that a consent not to the suit being instituted, but to its being proceeded with is not a sufficient consent, and if consent has not been obtained before the commencement of the suit, the Court should dismiss the suit or allow the plaintiff to withdraw it with liberty to bring a fresh suit. But in that case, consent was necessary on the date of the institution of the suit. Moreover, consent given in that case was to continue the suit. But in the present case, we have already held that consent was not necessary on the date the suit was filed. Hence, these decisions do not apply to the facts of the present case.

14. It is contended by Mr. Benadikar that by virtue of the Constitution (26th Amendment) Act 1971 the recognition accorded to defendant-1 by the President of India was withdrawn and that therefore the de-recognition relates back to the date of the institution of the suit and no consent was necessary prior to the institution of the suit. But the wording of Article 363-A (a) makes it clear that de-recognition is to take effect on add from the commencement of the Constitution (26th Amendment) Act 1971. Hence, this contention has to be rejected. But since the suit was validly instituted and was pending on the date when the recognition of defendant-1 by the President of India ceased, the suit could be continued against defendant-1 after the Constitution (26th Amendment) Act 1971 came into force without obtaining the consent of the Central Government for the continuation of the suit. Mr. Narayana Rao relied on the decision in : AIR1958Bom30 (Bai Shakri v. Babusinghji Takhatsinghji) wherein it is held that the provisions contained in Section 86 of Code of Civil Procedure are imperative and a decree passed by the Court without the requisite certificate would be by a court which has no jurisdiction at all to entertain the suit, it would be a case of total absence of competence the decree would be a nullity and would not operate as res judicata. But that was a case where the recognition of the Ruler bad not been with drawn on the date of the institution of the suit as in the present case. Hence, that decision also has. no application to the present case.

15. It is next urged by Mr. Narayana Rao. That the suit is barred by Limitaion. The alleged dispossession is on 18-8-1970. The plaintiff would be entitled to deduct the time taken for obtaining the certificate under Section 15(2) of the Limitation Act, i. e., the period between 29-7-1971, the date on which he applied for a certificate, and 10-10-1971, the date on which the certificate was granted. It is urged that since the suit is under Section 6 of the Specific Relief Act 1963, the certificate should have been obtained within six months from the date of dispossession, namely, on or before 18-2-1971. Since the plaintiff chose to apply for the certificate only on 29-7-1971, it is urged that even assuming that the defect in the institution of the suit could be cured by the certificate issued subsequent to the suit, such certificate should have been obtained before 18-2-1971. According to him, limitation under Section 6 of the Specific Relief Act begins to run from the date of dispossession i.e., from 18-8-1970 and since no certificate was obtained even subsequent to the institution of the suit within the period of six months, the certificate obtained on 10-10-1971 does not prevent the suit being barred under that section. In (1893) ILR 17 Bom 169 (Jilaji Pratapji Raje v. Balakrishna Mahdeo) the suit bad been instituted without a certificate under the Pensions Act (XXIII. of 1871). It was held that the suit was not bad ab initio but that the court is only precluded by taking cognizance of it until the certificate is produced, following the decision of the Privy Council in (1881) 9 Ind App 8 (PC) (Nawab Muham. mad Azmat Ali Khan v. Mt. Lalli Begum). In 36 Bom LR 84 = (AIR 1934 Bom 91) (Ramgopal v. Ramsarup) the plaint was resented to an officer in the Prothonotary's office on the last day of limitation. The plaint showed on its face that leave to sue was required under clause 12 of the Letters Patent, which could be given only by a judge. On a consideration of Explanation to Section 3 of the Indian imitation Act 1908, wherein, it is provided that a suit is instituted when the plaint is presented to the proper officer, it was held that there was a difference between the 'presentation of the plaint' and 'the admission or receipt of the suit ' Considering the terms of Order TV Rules 1 and 2 of the Code of Civil Procedure, it was held that the requirements as to obtaining of the leave of the Chamber judge and the admission of the plaint do not affect in any way the Presentation of the plaint for the purposes of the Indian Limitation Act and that the suit was not barred under Section 3 of the Limitation Act. Since in the present case the institution of the suit on 5-12-1970 was valid, the suit must be said to have been instituted with in the period of limitation under section 6 of the Specific Relief Act, 1963.

16. The next question is whether the suit became barred by limitation subsequent to 15-12-1970 and before 29-7-1971. In AIR 1956 Mad 15 (Thayammal v. Ranga Swarni it has been observed as follows: -

'......... it is obvious that the question whether a suit is barred by limitation should be decided on the facts as they stood on the date of the presentation of the plaint. There is no provision in the limitation Act under which a suit, which was in time on the date of the institution, could subsequently become barred by time. We are, of course not referring to the case of an additional party coming on record.'

It can be said that the suit could not be continued without the certificate under Section 87-B after the decision of the Supreme Court i. e., after 15-12-1970. It was open to the Court to come to the conclusion that the suit became incompetent in the absence of the necessary certificate under Section 87-B after 15-12-1970. But since the suit continued to be pending even on 29-7-1971, the date when the plaintiff applied for the grant of a certificate under Section 87-B, as well as thereafter even after 10-10-1971 when the certificate was actually granted, it cannot be said that the suit became barred by limitation.

17. The suit was pending even on the date the Constitution (26th Amendment) Act, 1971 came into force when the privileges of defendant-1 ceased to exist Hence, though it was necessary for the plaintiff to obtain the certificate for the continuation of the suit after the decision of the Supreme Court, no such certificate became necessary for the continuation of the suit after 29-12-1971. Hence, it cannot be said that the suit is barred by limitation.

18. There is no reason to interfere with the order of the lower court. This revision petition is accordingly dismissed with costs of Respondent-1.

19. Petition dismissed.


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