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Kishore Singh Vs. Paharh Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Civil
CourtRajasthan High Court
Decided On
Case NumberCertificate No. 23 of 1950
Judge
Reported inAIR1951Raj55
ActsConstitution of India - Article 133; Ijlas-i-Khas Rules, 1939; Rajasthan High Court Ordinance, 1949 - Sections 40; Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1940 - Sections 3
AppellantKishore Singh
RespondentPaharh Singh and ors.
Advocates: Hastimal, Adv.
DispositionPetition dismissed
Excerpt:
- - 6. this ordinance only referred to the decisions of the high courts of the covenanting states before their abolition under section 419, rajasthan high court ordinance and the right of appeal against the decision of the high court of covenanting states was clearly taken away......article 133 of the constitution, and the petition is pressed solely on the aforesaid ijlas-i-khas rules. the ijlas-i-khas rules of 1939 were repealed by the ijlas-i-khas rules of 1946 where it was further provided that even in the cases provided by the exception in rules of 1939, the appeal must involve a substantial question of law if the decision of the court affirms the decree of the lower court. the learned counsel for the appellants stated that be was prepared to show that a substantial question of law was involved but it is unnecessary to go into that question as the decision has not been given by the high court of the former covenanting state of jodhpur. the decision was given by the rajasthan high court established under the rajasthan high court ordinance 1949 (xv [15] of.....
Judgment:

Bapna, J.

1. This is a petition for leave to appeal to the Supreme Court against the decision of the High Court of Rajasthan dated 14-8-1950, The leave is claimed as a matter of right under exception to Clause (a) of Rule 17, Ijlas-i-khas, Rules, 1939.

2. Under the said provision, a decision of the High Court of the covenanting State of Jodhpur was open to appeal if the case related to land and either party pleaded that he held the laud in dispute otherwise than as a cultivating tenant of the opposite parts, and an issue was raised in the case regarding the tenure in which the land was held. It is conceded that the case is not appealable and no leave can he granted if the case fell within Article 133 of the Constitution, and the petition is pressed solely on the aforesaid Ijlas-i-Khas Rules. The Ijlas-i-Khas Rules of 1939 were repealed by the Ijlas-i-Khas Rules of 1946 where it was further provided that even in the cases provided by the exception in Rules of 1939, the appeal must involve a substantial question of Law if the decision of the Court affirms the decree of the lower Court. The learned counsel for the appellants stated that be was prepared to show that a substantial question of law was involved but it is unnecessary to go into that question as the decision has not been given by the High Court of the former Covenanting State of Jodhpur. The decision was given by the Rajasthan High Court established under the Rajasthan High Court Ordinance 1949 (XV [15] of 1949) and the provisions of that Ordinance are only relevant. Under Section 39 of the Ordinance, the Rajpramukh was empowered to constitute a Court to hear appeal against the decisions of the High Court and for that purpose to make such consequential or incidental provisions as may be necessary. Section 40, provided that until a Court referred to in Section 39, was constituted or a Court was constituted under any other law relating to the establishment of a Court superior to the High Court of Rajasthan to hear appeals therefrom, the Rajasthan High Court was to be the highest Court of appeal, reference and revision in the United State of Rajasthan, and no appeal was to lie from any judgment, decree or order of the said High Court.

3. Under Section 49, the High Courts of the various Covenanting States were abolished and the pending cases were directed to be transferred to the Rajasthan High Court. The present case was one of such cases.

4. It was argued that the right of appeal was a substantial right and could not be taken away except by express legislation. The statement of law is correct but it is clear that under Section 40, Rajasthan High Court Ordinance, a specific provision was made prohibiting appeals against the decision of the Rajasthan High Court and such decisions were to be final.

5. The Rajpramukh also promulgated another Ordinance viz. The Rajasthan Appeals and Petitions (Discontinuance) Ordinance 1949 (No. XL [40] of 1949) on 9-11-1949, and Section 3, thereof provided that notwithstanding anything contained in any law for the time being in force in any Covenanting State, no appeal, revision, reference or petition, which according to such law lay to the Ijlas-i-Khas, shall so lie or be so preferred, brought, made or presented after the commencement of the Ordinance, against the decision of the High Court of any Covenanting state.

6. This Ordinance only referred to the decisions of the High Courts of the Covenanting states before their abolition under Section 419, Rajasthan High Court Ordinance and the right of appeal against the decision of the High Court of Covenanting States was clearly taken away.

7. It was argued that with the enforcement of the Constitution, of India, an appeal against the decision of the Rajasthan High Court was provided by Article 133 of the Constitution, and therefore, while the right of appeal is created therein, the conditions under which the appeal could lie should be held to be those as given in the Ijles-i-khas Rules of 1939 which were applicable at the time of the institution of the suit.

8. The contention has no force. Whatever rights may have been in existence under the Ijlas-i-khas Rules in respect of appeals against decisions from the judgment of the High Court of the Covenanting State of Jodhpur, the rights were taken away expressly by Section 40, Rajasthan High Court Ordinance, as it was expressly provided therein that until a superior Court was constituted by the Rajpramukh or any other law, no appeal would lie from any judgment, decree or order of the High Court. With the creation of the Supreme Court under the Constitution of India, the judgment of the Rajasthan High Court no doubt became appealable but the conditions necessary for the appeal to lie are also mentioned in the Constitution itself. Unless a case fulfilled the conditions mentioned in the Constitution the judgment of the Rajasthan High Court could not be made a subject of appeal. The relevant article in the Constitution applicable to the present case is Article 133, and it is conceded that the present case does not fall within the conditions laid down in that Article.

9. Section 7, General Clauses Act, provides that if it is intended to revive any enactment wholly or partially repealed, it is necessary to expressly state that purpose in the subsequent enactment. The Constitution which gives a right of appeal does not re-enact the conditions of the Ijlas-i-khas Rules of Jodhpur, but lays down entirely different conditions and it is only as provided by the Constitution that an appeal can lie to the Supreme Court. Accordingly, the Ijlas-i-khas Rules of 1939 are no longer in force and no leave to appeal can be granted in pursuance thereof. The petition therefore fails and is dismissed.

Bhardwaj, J.

10. I agree.


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