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Sajjan Singh Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberMisc. Case No. 6 of 1954
Judge
Reported inAIR1954Raj301
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 45, Rule 13; Supreme Court Rules, 1950 - Order 13, Rule 9; Rajasthan Land Reforms and Resumption of Jagirs Act, 1952
AppellantSajjan Singh
RespondentState of Rajasthan
Appellant Advocate S.K. Kapoor, Adv. assisted by; M.S. Gehlot, Adv.
Respondent Advocate Kan Singh, Deputy Govt. Adv.
DispositionApplication dismissed
Cases ReferredState of Orissa v. Madan Gopal
Excerpt:
..... as juvenile under the said act. - we are, therefore, clearly of the opinion that in a case like the present where the writ petition has been dismissed, and the particular law has been upheld, it is not open to us under section 151 to pass an order, simply because an application for leave to appeal to the supreme court has been filed, in the guise of giving interim relief when such order would be directly against the final order passed by this court. we could only do so if there was a specific provision like order 45, rule 13 authorising us in this behalf......pending final disposal of his application for special leave to appeal to the supreme court. the stay application purports to have been made under section 151, and order 45, rule 13 of the code of civil procedure.3. the application has been opposed on behalf of the state on various grounds. in the first place, it is contended that order 45, rule 13, and section 151 of the civil procedure code have no application to matters coming before this court under article 226 of the constitution. in the second place, it is contended that even if there are inherent powers in this court to pass stay orders in such eases, there is no order of this court which can be stayed except the order allowing costs to the state. lastly, it is urged that the balance of convenience is not in favour of the grant.....
Judgment:

Wanchoo, C.J.

1. This is an application for stay filed by Thakur Sajjan Singh in connection with his application for leave to appeal to the Supreme Court against the order of this Court dismissing the applicant's writ petition against the Rajasthan Land Reforms and Resumption of Jagirs Act (No. VI) of 1952 (hereinafter referred to as the Act).

2. The facts leading to this application may be briefly narrated. The applicant filed a writ petition in this Court challenging the validity of the Act. That writ petition was dismissed by this Court on the 23rd of August, 1954. Thereupon, the applicant has made an application for leave to appeal to the Supreme Court, which is pending in this Court, and notice of it has been issued to the State. The applicant prays (1) that pending the disposal of the application for leave to appeal this Court may be pleased to grant a stay order restraining the State from interfering in any manner with the possession of the applicant over his jagir, or from taking any steps under the Act, and (2) that, in case this Court is pleased to dismiss the application for leave to appeal, the applicant may be granted a stay order in the same terms pending final disposal of his application for special leave to appeal to the Supreme Court. The stay application purports to have been made under Section 151, and Order 45, Rule 13 of the Code of Civil Procedure.

3. The application has been opposed on behalf of the State on various grounds. In the first place, it is contended that Order 45, Rule 13, and Section 151 of the Civil Procedure Code have no application to matters coming before this Court under Article 226 of the Constitution. In the second place, it is contended that even if there are inherent powers in this Court to pass stay orders in such eases, there is no order of this Court which can be stayed except the order allowing costs to the State. Lastly, it is urged that the balance of convenience is not in favour of the grant of a stay order of the kind prayed for by the applicant.

4. We have heard learned counsel at some length on the questions of law raised in this connection. So far as Order 45, Rule 13 is concerned, its language makes it quite clear that it is not applicable in terms to this case. It only gives certain powers to the Court including stay of the execution of a decree. Learned counsel for the applicant, however, urges that though Order 45, Rule 13 does not apply in terms, this Court has power under Section 151 of the Code of Civil Procedure to pass the order which the applicant desires, and has relied on a number of cases in this connection, which we shall now briefly consider.

5. In -- Nanda Kishore Singh v. Ram Golam Sanu', 40 Cal 955 (A), it was held that the High Court was competent to make an order for stay of proceedings in execution of its decree in view of an application by the judgment-debtor to the Judicial Committee for special leave to appeal to His Majesty in Council. In this case, however, there was an executable decree and the High Court was of the view that it could stay the execution of the decree under Section 151 where Order 45, Rule 13 did not apply in terms.

6. In -- 'Sarat Kumar v. Official Assignee of Calcutta', AIR 1931 Cal 79 (B), there was an appeal to the Privy Council from an order of the High Court setting aside an ex parte decree, and ordering rehearing of a suit on the original side. Thereupon, there was an application to the High Court for staying the rehearing pending disposal of the appeal. It was held that High Court had power to stay the rehearing under Order 45, Rule 13, and in any case under Section 161, C. P. C. It is enough to point out in connection with this case that the suit was pending in the High Court, and an application was made for stay pending the disposal of the appeal before the Privy Council, and the High Court would have power to stay the hearing. These facts are, however, different from the facts of the matter before us, for the writ petition of the applicant has been dismissed, and there is nothing pending before us the hearing of which we can stay.

7. In -- 'Jewan Ram Gangaram & Co. v. Commrs. for Port of Calcutta', AIR 1939 Cal 308 (C), it was held that the High Court could stay execution under inherent powers, though the matter may not fall under Order 45, Rule 13. It is enough to say that in this case there was an executable decree, and the High Court took the view that it could stay the execution of that decree pending disposal of an application for special leave to appeal before the Privy Council.

8. In -- 'Ramendra Narayan v. Smt. Bibha-bati Debi', AIR 1942 Cal 488 (D), it was held that even though Order 45, Rule 13 was not applicable, the High Court had power to pass an interim order under Section 151 maintaining the status quo until the application for leave to appeal was presented. There also there was an executable decree, and the question was whether certain monies which were deposited should be allowed to be withdrawn or should remain where they were until the disposal of the application to be presented to the Privy Council for special leave.

9. In -- Sew Kissendas v. Ratan Lal', 52 Cal WN 209 (E), it was held that even if Order 45. Rule 13 was not applicable in terms, the High Court could order stay of a suit pending disposal of an appeal before the Privy Council under its inherent powers. Here again it may be noted that there was a suit pending, and the decision of the Privy Council would have had a material eSect on the suit.

10. A review of all these cases certainly establishes that the High Court has power in proper cases to pass an order of stay under Section 151, C. P. C., even though Order 45, Rule 13 may not in terms apply. But it will also be clear that in all these cases there was either an executable decree, the execution of which was ordered to be stayed, or there was a suit pending which the High Court thought fit to stay pending disposal of the application for leave to appeal to the Privy Council. These cases, therefore, are of a different types altogether from the facts of the case before us. Here the writ application has been dismissed and there is no executable order except for the order for costs, which the applicant does not want us to stay, nor is there any matter pending decision before this Court, which will be affected by the decision of the Supreme Court, and which it might be proper or convenient to stay.

11. The last case on which learned counsel relied is -- ' 'B' an Advocate of Benares v. Judges of High Court, Allahabad', AIR 1933 All 259 (PB) (P). In that case a pleader was suspended for three months by the High Court for unprofessional conduct. He applied for leave to appeal to the Privy Council, and prayed that the operation of the order should be kept in abeyance. Thereupon, the High Court ordered that the operation of the order be kept in abeyance, and held that it had the power to do so under Section 151 of the Code of Civil Procedure. Great stress is laid on behalf of the applicant on the principle laid down in this case, namely that the High Court has power under Section 151 to stay the operation of its own order pending appeal to the Supreme Court. Assuming, but not deciding, that this view is correct, it may be pointed out that even this principle does not apply to the facts of this case. In that case, there was a positive order of the High Court suspending the pleader from practice for a period of three months, and it was the operation of this positive order which was stayed pending the disposal of the application for leave to appeal; but in the case before us there is no positive order of this-Court.

12. All that this Court has done is to dismiss the writ petition of the applicant, by which he challenged the validity of the Act. A stay order was passed maintaining the status quo while the writ petition was pending in this Court. As soon as this Court decided that the Act was valid and dismissed the writ petition, the stay order came to an end, and the Act would take its course. The only positive order in this case which the court has made is the order for payment of Rs. 50/- as costs, and on the principle enunciated in the 'Allahabad case (P)', it may be possible for us to stay the realization of that amount. But the dismissal of the writ petition on the ground that the Act is valid means that the State can proceed to take such action under the Act as is allowed by it, and there is nothing for us to stay after we have dismissed the writ petition.

What the applicant really wants is that though we have held that the Act is valid and dismissed the writ petition, we should give him a kind of temporary writ restraining the State Government from putting the Act into effect. We could do this while the writ petition was pending, and we had still to decide whether the Act was valid or not. As was held in -- 'State of Orissa v. Madan Gopal', AIR 1952 SC 12 (G), an interim relief can only be granted in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in suit or proceeding.

So long as the writ petition was pending, we could, grant an interim relief to the applicant staying the application of the Act till we decided its validity; but once we have decided that the Act is valid, and have dismissed the petition, there is, in our opinion, no scope for grant of any interim relief by us on the ground that an application for leave to appeal to the Supreme Court has been filed. This Court having expressed the view that the Act is valid, and having dismissed the writ petition cannot now give any interim relief in aid of the main relief because no relief can be obtained from this Court. It is only the Supreme Court which can now grant any relief to the applicant, and it seems to us that it is only that court which may, if it so desires, grant interim relief in aid of the final relief. So far as this Court is concerned, the final relief having been refused, it is not possible for this Court to grant interim relief under Section 151 of the Code of Civil Procedure.

13. Our attention was drawn in this connection to Order 13, Rule 9 of the Supreme Court Rules. That rule provides that on receipt of the order of the Supreme Court granting special leave, the court or tribunal from whose order special leave has been granted shall act in accordance with the provisions contained in Order 45 of the Code so far as applicable. In the first place, this provision is not applicable to this case, because there is no order of the Supreme Court granting special leave. In the second place, rule 9 provides that the provisions of Order 45 shall be applicable as far as possible. It seems to us that if there is no decree or positive order the operation of which can be stayed, this provision cannot apply even after the Supreme Court has granted special leave to appeal.

We are, therefore, clearly of the opinion that in a case like the present where the writ petition has been dismissed, and the particular law has been upheld, it is not open to us under Section 151 to pass an order, simply because an application for leave to appeal to the Supreme Court has been filed, in the guise of giving interim relief when such order would be directly against the final order passed by this Court. We could only do so if there was a specific provision like Order 45, Rule 13 authorising us in this behalf. But as there is no specific provision which applies to cases of this kind, we do not think that we can use Section 151 to grant an interim relief when we have already refused that relief in our final order dismissing the writ petition. In this view of the matter, we are of opinion that we cannot grant any stay order of the nature desired By the applicant.

14. The application for stay is therefore dismissed.


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