K.L. Bapna, J.
1. This is a revision by the defendantagainst an order of the Munsiff dated 14th ofNovember 1951.
2. The opposite party filed a suit for recovery of Rs. 500/- against the petitioner Maharaj Amar Singhji. Certain issues were framed and the defendant led his evidence first. The defendant made an application for issue of commission on the ground of illness but it was not accompanied by medical certificate. The commission was refused whereafter the defendant closed his evidence. The plaintiff while leading his evidence cited the defendant as his witness. The defendant again requested the court for issue of commission on the ground of illness, which request was accepted but the plaintiff did not examine the witness on the date fixed as he (the plaintiff) In the meanwhile had made an application for transfer of the case.
Later on, the order as to issue of commission was set aside on the representation by the plaintiff that the defendant was no longer ill. On behalf of the defendant, an application was then presented that he was exempted from attendance under the Notification of the Jodh-pur Government dated 20th March 1934, and therefore, a commission should be issued for his examination. This was opposed by the plaintiff and the learned Munsiff has held that the Notification of 20th March 1934, had exhausted itself and was no longer in force. The defendant has come in revision.
3. Various objections have been taken by the plaintiff who is a lawyer and appeared in person to argue the case. It was first argued that this petition is not maintainable as it was filed by Mr. Mag Raj who did not hold any power of attorney. It was conceded that he had appeared as a lawyer for the defendant in the lower court, and, therefore, this objection is not maintainable.
4. It was next urged that the order did not amount to a 'case decided' and that even if the order be erroneous, it can be taken as a ground of appeal if the decision of the lower court on the merits of the case goes against the defendant. This is not correct. We have recently held in -- 'Fyar Chand v. Doongar Singh', that the word 'case' in Section 115 means any set of facts juridically considered the decision of which relates to some matter in controversy affecting the rights of the parties. The order is therefore, a 'case decided,' within the meaning of Section 115 of Civil P. C. Now if the defendant obeyed the summons, came to court and gave evidence nothing was left to be agitated in appeal. If, however, he did not obey the summons, he would be liable to a fine under Order 16 Rule 12 read with Rule 21. Such an order was not open to a second appeal to the High Court and it could not be taken as a ground of appeal also under Section 105 of the Code as it did not affect the decision of the case on the merits. The order thus amounted to a 'case decided' in which no appeal lay to the High Court.
5. It was further argued that the order even if erroneous would not come under any of the Clauses (a), (b) and (c) of Section 115, C. P. C. This contention has no force, since, if the petitioner is exempted under the law, the court has no jurisdiction to compel his personal attendance.
6. It was argued that the Notification of 20th March 1934, had exhausted itself as it was under the Marwar Civil P. C. and at any rate, was inconsistent with Section 133, Indian Civil P. C., as adapted in Rajasthan by Ordinance V of 1950, In this connection, Section 14 of the Ordinance is important. That section reads as under: '14. Repeal and Saving:
(1) The Codes of Civil Procedure in force in all the Covenanting States are hereby repealed.
(2) The repeal shall not, however, affect anything done or action taken under any such Code or law before the commencement of this Ordinance.
(3) Notifications published, places ap- pointed, scales prescribed, appointments made and powers conferred under any such Code or law hereby repealed shall, so far as they are consistent with the provisions of the Indian Code as hereby adapted to Rajasthan have the same effect and force as if they had been respectively, published, made and conferred under or in pursuance of this Ordinance.
(4) In every instrument, enactment or notification made, passed or issued before the commencement of this Ordinance, in which reference is made to or to a provision of any Code or law hereby repealed, such reference shall, so far as may be practicable be taken to be made to or to the corresponding provision of the Indian Code as adapted to Rajasthan by this Ordinance.'
A perusal of this section makes it clear, firstly, that any action taken under the Code which was in force in any Covenanting State was not affected. Secondly, any notification published under the Code in force in the Covenanting State and repealed by the Ordinance has been declared to have the same effect as if published in pursuance of the provisions of the Ordinance so far as it was consistent with the provisions of the Indian Code. Thirdly, a reference to any provision of the repealed law in any notification is to be deemed to have been made to the corresponding provision of the Indian Code. The Notification of 20th March 1934, is published in the Jodhpur Government Gazette dated 24th March 1934 and the relevant portion is to the following effect:
'His Highness the Maharaja Sahib Bahadur has, vide C. R. No. 13/49 dated 6-2-1934, been pleased to approve of the following list of persons who are to be exempted from personal attendance in Civil Courts as provided under Section 133 of the M.C.P.C.....'
Then follows the list and so far as the present petition is concerned, it is only necessary to mention that in Class I, item No. 2, are mentioned Maharajas (including Chhutbhais). In items Nos. 4, 5, 6 and 7 are mentioned 'Tazimi Sardars' enjoying single or double Tazim'. The Notification is purported to have been issued under Section 133, Marwar Civil P. C., which was word for word adapted from the Indian Civil P. C., except that for 'the State Government' was to be read 'the Marwar Darbar' and for 'the High Court' was to be read 'the Chief Court of Marwar'. The Notification would, therefore, continue to have the same effect and force by virtue of Sub-sections (2), (3) and (4) of Section 14 ofOrdinance No. V of 1950 unless it could be shown that it was not consistent with the provisions of the Indian Civil P. C.
The respondent argued that Section 133, Civil P. C. contemplates exemption by individual names but the Notification purports to exempt not only by names but by rank and class of persons. In my opinion, that would not by itself amount to any inconsistency since the word used in Section 133 is 'person' and not 'individual'. Under General Clauses Act which is applicable for interpretation of Ordinance No. V of 1950, a 'person' has been declared to include any association or body of individuals whether incorporated or not, so that a class of persons is included in the word 'person' used in Section 133, Civil P. C.
7. The respondent urged that if this list was to be held valid, it would exempt a large number' of persons which may not be contemplated by Section 133, Indian Civil P. C. Section 133 empowers the State Governments to make out a list of persons who may be exempted, and until such list is made by the Rajasthan State, the previous lists made by the Governments of the Covenanting States under the law in force in those States will remain in force under the provisions of Section 14 of the Ordinance.
8. It was finally argued that exemption was claimed in the lower court on the ground that the defendant was a Tazimi Sardar but there was no proof of this fact on record. It is not clear whether this fact was contested in the lower court. At any rate, exemption from attendance in court was also allowed to Maharajas and it is not disputed that the defendant is a Maharaj. In fact he is so described in the plaint. The defendant is thus one of the persons who were exempted from attendance in court under Section 133, Civil P. C.
9. The revision is, therefore, allowed and the order of the learned Munsiff dated 14th of November 1951, rejecting the defendant's prayer for issue of commission is set aside. The learned Munsiff will proceed further according to law. The opposite party will pay the costs of this revision.