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Faqir Chand Aggarwal Vs. Smt. Bhagwanti and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. No. 1068 of 1956
Judge
Reported inAIR1958P& H287
ActsConstitution of India - Article 228
AppellantFaqir Chand Aggarwal
RespondentSmt. Bhagwanti and ors.
Appellant Advocate H.L. Sibal, Adv.
Respondent Advocate D.R. Manchanda,; D.N. Awasthy and; I.D. Dua, Advs.,
DispositionPetition dismissed
Cases ReferredB) (B) and Hafiz Mohd v. Shiam Lal
Excerpt:
.....(fb) (c). 4. in the present case admittedly the suit can be disposed of effectively by the decision of various issues raised in the case. this being so, i am not satisfied that the determination of the constitutional issue is necessary for the disposal of the case as laid down in article 228 of the constitution......that it is not sufficient to say that the point is involved in the case or that it is an important point. the point raised must be so important in the case as to compel its decision before the case can be disposed of: vide emperor v. saver mannel dantes, air 1941 bom 245 (fb) (b) and hafiz mohd v. shiam lal, air 1944 all 273 (fb) (c).4. in the present case admittedly the suit can be disposed of effectively by the decision of various issues raised in the case. if the suit is barred by time, then this issue involving constitutional point need not be decided. similarly if the plea that the plaintiff is debarred from filing the suit is decided in defendant's favour, then also this constitutional issue need not be determined. the decision on some other issues may also make the determination.....
Judgment:
ORDER

Bishan Narain, J.

1. Faqir Chand Aggrawal had a decree for about Rs. 25,000/- against one Molua Bux. In execution of that decree machinerybelonging to the judgment-debtor was auctioned on 21-4-1948 and was purchased by FaqirChand and Mansa Singh jointly for Rs. 72,000/-. In their turn they sold this property to Mst. Bhagwanti on 15-7-1948 for Rs. 85,000/-. Thereafter the East Punjab Evacuees' (Administration of Property) (Second Amendment) Ordinance, 1948 (Ordinance No. XVI of 1948) was promulgated on 30-7-1948. The Custodian applied under Section 8(2) of the Ordinance to getthe sale set -aside.

The executing Court dismissed this application on 29-3-1950. The Custodian filed a revision petition in the High Court and during its pendency the Administration of Evacuee Property Act, 1950 (Act XXXI of 1950) came into force. Kapur J. decided the petition on 29-3-1951. Mst. Bhagwanti then filed a suit in 1954 for the refund of the price paid by her to Faqir Chand and Mansa Singh with interest thereon on the allegation that she had been dispossessed by the Custodian under orders of the High Court. In March, 1955, eighteen issues were framed in the suit including those relating to limitation and res judicata.

Issue No. 3 reads:

3. Whether the Punjab Ordinance No. XVI of 1948 and Central Act XXXI of 1950 are ultra vires so far as they relate to the setting aside of the sale of the movable property of evacuees. The present petition has been filed by Faqir Chand under Article 228 of the Constitution praying that the question of law contained in issue No. 3 should be decided by this Court on the ground that Section 8(2) of the Punjab Ordinance violated Section 299 of the Government of India Act, 1935, and that Section 17(2) of the Central Act XXXI of 1950 violated Article 31 of the Constitution.

2. Now Section 8(2) of the Ordinance and Section 17(2) of the Central Act lay down that any sale of evacuee property after 1-3-1947 in execution of a decree shall be set aside on the applicationof the Custodian provided he files the application within the time prescribed in these provisions. The issues raised in this case challenge the validity and the vires of this provision of law. This question obviously comes within the proviso to Section 113. Civil Procedure Code as was held by me on the application of Faqir Chand in Civil Revision No. 95 of 1955.

Reading Article 147 and Art 228 together, it is clear that the question involved in the present case is also a question as to the interpretation of the Constitution inasmuch as the validity of these sections is challenged on the groundthat they contravene constitutional provisions: vide Ganga Pratap Singh v. Allahabad BankLtd., AIR 1958 SC 293 (A).

3. All the conditions necessary excepting one condition for an order under Article 228 exist in the present case. The only point that requires determination is whether or not under Article 228 of the Constitution the decision of this issue is necessary for the disposal of the suit. This condition is specifically laid down in this Article. The use of this language in this Article can only mean that the question involv-ed must be such that it is not possible to dispose of the suit without determining the con-stitutional question raised.

In my opinion, where independent of the constitutional question there are questions which are sufficient in themselves to dispose of the case, then the High Court should not take any action under Article 228 of the Constitution. It appears that in America also no law is declared to be unconstitutional if the case can be disposed of in some other way. In Willoughby's Treatise on the Constitution of the United States the practice in America has been described as follows:

'In recognition of the fact that the substitution of the opinion of a Court for that of the enacting legislature as to the constitutionality of a questioned law is a serious matter: all American Courts guide themselves by the self-set rules that they will not declare a law unconstitutional if the case in which the question is raised can be properly disposed of in some other way.'

This self-set rule observed by the American Courts has been specifically incorporated in Article 228 of the Constitution. In another context the same principle has been applied in India. Article 132(1) of the Constitution corresponds to Section 205(1) of the Government of India Act. 1935. Neither in the said Article nor in Section 205(1) the words 'necessary for the disposal of the case' occur and yet it has been repeatedly held that there must be a pressing necessity for the decision of the point and that it is not sufficient to say that the point is involved in the case or that it is an important point. The point raised must be so important in the case as to compel its decision before the case can be disposed of: vide Emperor v. Saver Mannel Dantes, AIR 1941 Bom 245 (FB) (B) and Hafiz Mohd v. Shiam Lal, AIR 1944 All 273 (FB) (C).

4. In the present case admittedly the Suit can be disposed of effectively by the decision of various issues raised in the case. If the suit is barred by time, then this issue involving constitutional point need not be decided. Similarly if the plea that the plaintiff is debarred from filing the suit is decided in defendant's favour, then also this constitutional issue need not be determined. The decision on Some other issues may also make the determination of this issue unnecessary in the present case.This being so, I am not satisfied that the determination of the constitutional issue is necessary for the disposal of the case as laid down in Article 228 of the Constitution. This petition therefore fails and is accordingly dismissed with costs.

5. This case has been hanging fire since 1954. The trial Court should decide the issue expeditiously and without unnecessary delay.

The decision of this issue would materially affect the evidence that may be produced by the parties in this case. The parties have been directed to appear before the trial Court on 1-5-1958.


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