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Sri Mahadeb Jiew and anr. Vs. Dr. B.B. Sen - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Suit No. 4003 of 1950
Judge
Reported inAIR1951Cal563,55CWN453
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 25, Rule 1 and 1(3); ;Constitution of India - Article 15, 15(1) and 15(3)
AppellantSri Mahadeb Jiew and anr.
RespondentDr. B.B. Sen
Appellant AdvocateR. Goho, Adv.
Respondent AdvocateSubimal C. Roy, Adv.
DispositionApplication dismissed
Cases ReferredKhajah Assenoollajoo v. Soloman
Excerpt:
- orderp.b. mukharji, j.1. this is an application for security for costs against pltf. ratanbala dasi in the suit.2. there are two pltfs. in this suit. one is sri sri mahadeb jiew, a deity who is suing through ratanbala as his trustee or as shebait. the other pltf. is ratanbala dasi herself.3. mr. r. goho, who argued in support of this application, has put forward two main grounds: (1) pltf. ratanbala is a woman & therefore under order 25 rule 1 (3) i have the jurisdiction to order security for costs against the woman pltf., if i am otherwise satisfied. (2) pltf. ratanbala is merely a puppet in this suit & she is not the real litigant & therefore i should direct security for costs as against her. this power, mr. goho argues, is within the inherent powers and jurisdiction of this court.4. i.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an application for security for costs against pltf. Ratanbala Dasi in the suit.

2. There are two pltfs. in this suit. One is Sri Sri Mahadeb Jiew, a deity who is suing through Ratanbala as his trustee or as shebait. The other pltf. is Ratanbala Dasi herself.

3. Mr. R. Goho, who argued in support of this application, has put forward two main grounds: (1) Pltf. Ratanbala is a woman & therefore under Order 25 Rule 1 (3) I have the jurisdiction to order security for costs against the woman pltf., if I am otherwise satisfied. (2) Pltf. Ratanbala is merely a puppet in this suit & she is not the real litigant & therefore I should direct security for costs as against her. This power, Mr. Goho argues, is within the inherent powers and jurisdiction of this Court.

4. I will first deal with the ground put forward by Mr. Goho on the basis of Order 25 Rule 1, Civil P. C. In my opinion, before an order can be made under this provision of the Code, the applicant has to satisfy four tests. The first is that it must be a suit for money. I have carefully analysed the plaint in this suit & I find that there is no prayer or claim in this suit for any money whatsoever. It is a suit to set aside a consent decree & for certain declarations & injunction. Mr. Goho submits that in the last analysis these suits are really for money but I am not prepared to accept so commercial a view of suits. I have no hesitation in holding that the present suit before me is not a suit for money at all. It is quite true that when a suit is perhaps not exclusively for money but will result in a decree for money then such a suit may come within the rule on the basis of the decision in 'Sonabai v. Tribhowandas', (32 Bom 602). But I have no hesitation in holding that the main relief, at any rate, must be for money before a suit can come within the meaning of this provision. In my opinion, the applicant in this case has failed to pass this test.

5. The second test is that the woman pltf. should be the sole pltf. within the meaning of this rule. I find that the deity is a co-pltf. in this case. It is true that pltf. Ratanbala is the next friend of the deity but she is also a she-bait & a trustee under the terms of the Will of the Testatrix. If she cannot act as a shebait or the next friend, then she will be removed & somebody else will have to be appointed as next friend to carry on the suit on behalf of the pltf. deity. It is not the same thing as saying that it is one & the same pltf. & that is the woman pltf. Ratanbala. The deity is a separate pltf. in this suit.

6. This point did arise for decision in a Calcutta case which was decided by Panckridge, J. There it was held that where only one of several pltfs. is a woman, Order 25, Rule 1 (3) has no application. The case is reported as 'Victor Day v. Nissim Aaron (Judah)', (63 Cal 809). There also, there were two plfs., one a minor & the other his mother. Panckridge, J. at p. 811 of the report observes:

'In my opinion, Order XXV Imposes an exceptional disability upon pltfs. & therefore must be strictly construed. It is not to be applied if the circumstances do not clearly come within its purview. I do not think that a suit in which there is a male pltf. can properly be described a suit in which the pltf. is a woman.'

7. The learned Judge proceeds to give further reasons on the basis of the consequence that would follow if this contention was upheld. On the same page he further observes:

'Under Rule 2 (1), if the security is not furnished within the time fixed, the Court shall make an order dismissing the suit, unless the pltf. or pltfs. are permitted to withdraw therefrom. The language on the face of it applies to the suit as a whole & the form of the summons bears this out because it asks that an order for security be made against both the pltfs. In his argument, however, the deft's counsel has conceded that no order can be made as against the male pltf., & he has also conceded that what he calls the female pltfs suit is the only suit that can be dismissed under Rule 2 (1). I see very great difficulty in making an order which would have the effect of dismissing the suit, in so far as it is the female pltf's suit & permitting it to continue, in so far as it is the male pltf's suit.'

8. I respectfully agree with these observations of Panckridge J. In my opinion in a suit where there are two pltfs. one a woman & the other a Hindu deity such a suit does not come within Order 25 Rule 1 (3), Civil P. C. Here, also, in the summons before me, it is being asked that In default of finding the security, the suit be dismissed with costs.

9. The third test is a test of discretion. The language under Order 25 Rule 1 (3) is permissive & the Court is given the discretion to order security for costs. I am unable, in this case, to exercise my discretion in favour of the applicant & direct security for costs. The main reason for so exercising my discretion will be found in the fourth test which I am presently going to mention.

10. The fourth test is that the Court is to be satisfied that the pltf. woman does not possess any sufficient immoveable property within India. Now, what is the affidavit in support of the summons. The affidavit is made by defendant Balkrishna Vyas. The only allegation to bring the application within the provisions of this rule is to be found in para. 8 of the said affidavit. It runs as follows :

'The pltf. Ratanbala is a woman of the town; she has no properties whatsoever either within or outside the jurisdiction of this Hon'ble Court.'

11. This, however, is not affirmed either to the knowledge of the applicant or to informations received & believed to be true. This statement in this particular para., which is the only allegation on the point, is only affirmed as being the applicant's submission to the Court, There is, therefore, no oath on the fact that the pltf. woman in this case has no sufficient immoveable property within India. I am, therefore, unable in this matter to exercise my discretion because I am not satisfied at all on the main fact of this case which is the very basis of ordering security for costs.

12. For these reasons I hold that there should be no order for security of costs under Order 25 Rule 1 (3), Civil P. C. against the pltf. woman in this suit.

13. The next point argued on behalf of the applicant is that although the application fails under the Code, I still have the power to exercise inherent jurisdiction to order security for costs. The argument is put in this way. Order 25 Rule 1 of the Code does not exhaust all the provisions for security for costs in all conceivable cases. It only particularises certain instances in which security for costs could be ordered as against the pltf. I, therefore, have still inherent jurisdiction to order security for costs against the woman pltf. in this suit independently of the provisions of Order 25 Rule 1 (3) of the Code.

14. This point raises a substantial question of great importance. Section 151, Civil P. C. preserves inherent jurisdiction of Courts, & provides that nothing in the Code limits or otherwise affects such inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Exercise of such inherent power, therefore, is dependant on one of two conditions. Either it must be necessary for the ends of justice or it must be to prevent the abuse of the process of the Court. I am not satisfied in this case, at this stage, that this suit is either an abuse of the process of the Court or that it is necessary for the ends of justice that the pltf. Ratanbala should be directed to secure for costs.

15. The affidavit of the applicant in support of the summons makes the allegation that the suit is an abuse of the process of the Court & sets out the reasons for saying so. The first reason put forward is that the deity is not a necessary party. I am not in a position to say here & now at this stage that it is so. I have before me the provisions of the Will of the Testatrix which certainly provides that all the three trustees, namely, the defts. Balkrishna Vyas, Pran Ballav Shaha & pltf. Ratanbala mentioned in the said Will shall carry on the sheba of the said deity. That arrangement of the Will has been supplanted by a consent decree which has been challenged in this suit & where the deity was not a party. At any rate, it is not such a fact at the present stage which entitles me to hold on the materials now before me that the deity was not a necessary party or the interest of the deity has not suffered by reason of the consent decree. The other reason why it is said to be an abuse of the process of the Court is that there was full opportunity to the pltf. Ratanbala to appreciate the terms she was agreeing to. My difficulty is that she has in this suit said in her plaint that she was prevailed upon to agree to these terms & that is the reason why she has challenged them. In para. 13 of the plaint she pleads that she is illiterate & purdanashin & that she was prevailed upon in Court by all concerned to give up her appointment as trustee in favour of the said Managing Trustees without giving her an opportunity to consider her position both as a trustee & shebait & also the position of the pltf. thakur. Then, again in para. 20 of the plaint she complains that her purported consent was not given out of her free will but the same was procured after taking advantage of her helpless position & by falsely holding out hopes of better management of the trust estate. She has also said that she has been tricked into consenting to such a decree. Now, these are serious allegations of fact which have to be tried on evidence. Then it is argued that because this is a suit to set aside a consent decree the consent is prima facie against her. That undoubtedly is so but the serious allegations that she had made deserve to be & should be tried on evidence. Many consent decrees have been attempted to be set aside in this manner & it would be extraordinary if it were taken as a rule of law that in such suits the pltf. should always have to secure for the costs of the suit if she was a woman. I do not know of any such rule of law. I, therefore, am pot in a position to hold at this state that this suit is an abuse of the process of the Court, nor do I think that security for costs against this woman pltf. is required for the ends of justice.

16. But I am of the view that my inherent jurisdiction cannot be applied to a case where either there is an express provision in the Code or a necessary implication from the Code. I am aware of the decisions which have expressed the contrary view that there is inherent jurisdiction in the Court to award a security for costs irrespective of the provisions contained in Order 25 Rule 1 (3). I propose to analyse, therefore, the position in law & the various decisions on the subject.

17. In the case of 'Gokul Mandar v. Pad-manund Singh', (29 I A 196), Lord Davey delivering the judgment of the Board at p. 202 observes :

'They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, & it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.'

The question was dealt with in some detail in the Calcutta decision of 'Bhairabendra Narain Deb v. Udai Narain Deb', (50 Cal 853). Cuming, J. came to the conclusion in this case that when one of the pltfs. is transferred to the category of defts., which was the problem before the Court in that case, the latter can in the absence of any special circumstance call upon the co-pltf. to furnish security for past costs only, but not for future costs, as it really is a case of amendment. The relevance of that decision for me in this case is that Cuming J., discussed at great length the question of the inherent power of the Court to order security for costs.

18. The first decision of the Privy Council on the point was 'Ram Coomar Coondoo v. Chunder Canto', (2 Cal 233). The decision was under old Code of 1859. Cuming J. at page 865 of the report of the case of 'Bhairabendra v. Udai Narain', (50 Cal 853), observes on this point :

'Their Lordships remark in the course of their judgment that it is' ordinarily the practice if the plaintiff is suing for another to require security for costs & to stay proceedings until it is given. In the old Code of 1859 there was no provision at all for giving security for costs by a pltf. & in the suit in question it does not appear that the particular point had to be decided. This authority has obviously no bearing therefore on the present case.'

19. Then further, in the judgment of Cuming, J., the following observations were made at pp. 865-66 :

'With great respect it seems to me that it is very doubtful if the inherent power of the Court can be called in aid in the present case. Had the Code been entirely silent on the point, then possibly the inherent power of the Court might have been invoked, but when the Code does make certain provisions for the taking of security for costs from 'the pltf. it seems to me that in those cases & those cases only may costs be taken from the pltf., & that for security for costs to be demanded from the pltf. the case must fall within the purview of Order XXV, Rule 1.

We find in other parts of the Code, as for instance, Order XLI, Rule 10, where provision is made for taking security for costs from the appellant, instances where the Code deals with the question of taking security from parties. In Order XXV the Legislature was dealing with the subject of security for costs by the pltf. & there set forth the cases in which security can be taken. Had the Legislature intended that in other cases also security for costs could be taken from the pltf. it would have, I presume, said so.

I do not think the inherent power of the Court can be invoked in matters for which the Code does actually provide. The Legislature possibly deliberately did not allow security to be asked for from a pltf. except in the exceptional cases given in Order XXV, Rule 1.'

20. I respectfully agree with the observations of Cuming J. Chatterjea J. who was presiding over that Bench did not express himself on this point & there is no observation of his whether Order XXV, Rule 1 at all affects the question of inherent jurisdiction of the Court if it awards security for costs against the pltf.

21. This view of Cuming J. has the support of the decision of the Allahabad High Court in 'Suraj Kuar v. Sant Singh' : AIR1941All219 . This is the decision of a single Judge, Collister J. The ratio of the decision of the Allahabad High Court in that case is that the Code is exhaustive on the matters in respect of which it declares the law & the effect of applying the provisions of Section 151, which no doubt are very wide, to matters in respect of which the Code declares the law would be to extend the scope of the section in a manner which was not intended by the Legislature. In fact, this decision further comes to the conclusion that when the Legislature has enacted specific provisions for the taking of security for a pltf. in certain cases & in certain set of circumstances, no discretion is left in the Court for taking such security in any case or in any set of circumstances other than those specifically provided for. The decision was supported by the application of the principle 'Inclusio unius exclusio alterius'. Collister J., at pp. 220-21 of that report dealt with a decision on the point & came to the conclusion :

'With respect I differ from the view taken in 'Chain Rai Valiram v. Sunday Times Ltd.' (AIR 19) 1932 Sind 33) & in 'Ramaswami Pillal v. Krishnammal' (A I R (22) 1935 Mad 230), & I agree with the view expressed by Cuming J. in '50 Cal 853'.'

I respectfully agree with the Observations of Cuming J. as well as the observations of Collister J. in the cases just mentioned.

22. As against this, there are two decisions of the Bombay High Court. The first is of 'Bomanji Jamsetji v. Nusserwanji Rustomji', (27 Bom 100). This is the decision of a single Judge Russell J. The judgment is short & from the observations appearing at p. 103 it appears to be based on the ground that the security for costs was ordered because the first pltf. was thought to be trying to make money out of his daughter's engagement. Russell J. observes there: 'It appears to me that the first pltf. is added merely to get over the difficulty as to security, if possible.' Surely, the facts in this case do not entitle me to come to such conclusion. Again, I find the judgment does not refer to the argument made by counsel for the pltf. reported at p. 102, that such an order could not be made where the pltf. was not the sole woman pltf., an argument which was carefully considered by Panckridge J. in '63 Cal 809'. This Bombay decision again was under Section 380, Civil P. C. of 1892 & not under the inherent jurisdiction of the Court. The other decision of the Bombay High Court is of 'Hiralal Ramsukh v. Mongibai Chimanji', I L R 1938 Bom 743. This also is a decision of a single Judge, Rangnekar J. There the learned Judge held that though there was no provision of security for costs in the Code for revision applications, the Court had inherent jurisdiction to make an order for security of costs. At. p. 748 of the report, the learned Judge observes :

'It is well-known that the Code of Civil Procedure is not exhaustive. The Legislature could not be expected to provide for every order which may be necessary in the interests of justice or to prevent abuse of the process of the Court, or for the proper administration of real & substantial justice of the Courts, & it is for this purpose that Section 151 is enacted.' The case here before me is entirely different. This is an application in a suit where the provision is made by Order XXV, Rule 1, & not a revision application.

23. It is necessary to observe here that the older decisions are of very little help because formerly the law of security for costs against the pltf. was according to the English Rules of Practice. Then gradually came Section 380, Civil P. C of 1882. Thereafter in 1888, the Debtors' Act was passed being Act VI (6) of 1888 by Section 5 of which the present provisions of Order XXV, Rule 1 (3) were introduced for the first time & incidentally also the present Section 56 of the Code exempting women from civil arrest.

24. Some arguments were addressed to me on the liability of the puppet pltf. to secure for costs. The doctrine of puppet pltf. was enunciated first by Trevelyan J. The basis of the decisions that security for costs can & should be ordered against the puppet pltf. is that the Court discourages such litigations because they are not bona fide or genuine litigations at all & are therefore abuses of the process of the Court. As I am not of the view at the present moment & on the present materials before me in the case that the pltf. Ratanbala in this suit is a puppet, these decisions are of little use. It is quite possible that where the Court is satisfied that the real pltf. is not before the Court & some puppet is put forward, then that is an occasion for exercising the inherent jurisdiction of the Court to 'prevent abuse of the process of the Court' within the meaning of Section 151 of the Code. The decision in 'Hari Nath Singh v. Ramkumar Bagchi', (18 C W N 119), makes the following observations at pp. 120-21 :

'The order now before us was not made & cannot be supported under Order XXV but the question is whether the Court has inherent power to make it. That the Court has some such power seems to be certain. So in 'Ram Coomar Koondoo v. Chunder Canto', Mookherjee, Sir Montague Smith in delivering a judgment of the Privy Council, says: 'It is ordinary practice, if the pltf. is suing for another, to require security for costs, & to stay proceedings until it is given'.'

Further down at p. 121 of the judgment, the following observations appear :

'They no doubt however can be taken as a correct indication of the existing law & were so treated by Trevelyan J. in 'Khajah Assenoollajoo v. Soloman', (14 Cal 533), who after referring to that decision holds that the Court 'has power to require security for costs if it finds that the pltf. is not the real litigant, but that he is only a puppet in the hands of others'.'

25. Here the facts are entirely different. Undoubtedly the pltf. Ratanbala has an interest in the estate of the testatrix. By the terms of the Will, she has not only a right to be maintained & also a right to reside, but she has also the right of deva seva. She is appointed with the two others, Pranballav Saha & Balkrishna Vyas as the executrix &/ or trustees. Such a case is far from coming within the range of the decision which proceeds on the basis when the real pltf. is not before the Court but some puppet is put forward & who is manipulated like a marionette by pulling from behind the chains in the hands of some one else.

26. I therefore hold that in this case, there is no scope for invoking & applying the inherent jurisdiction of this Court to order security for costs against the woman pltf. in suit.

27. It has been argued before me that the provisions of Order 25, Rule 1, Sub-rule 3, Civil P. C. are 'ultra vires' the Constitution. The gist of the argument is that this particular provision in the Civil Procedure Code is a discrimination on the ground of sex alone. Therefore, it is said to infringe Article 15(1) of the Constitution & is void under Article 13(1) of the Constitation. The point is of considerable practical significance & of great constitutional importance.

28. Article 15(1) of the Constitution pro-vides, inter alia, -- The State shall not discriminate against any citizen on grounds only of sex. The word 'only' in this Article is of great importance & significance which should not be missed. The impugned law must be shown to discriminate because of sex alone. If other factors in addition to sex come into play in making the discriminatory law, then such discrimination does not, in my judgment, come within the provision of Article 15(1) of the Constitution. Equality of sex as embodied in the constitutional guarantee of Article 15(1) of the Constitution draws only this limit that sex by itself alone will not be a ground of discrimination by the State. Superadded to sex, if there are proprietary considerations, then the discrimination cannot be said to be on the ground of sex alone. What is the provision in Order 25, Rule 1, Sub-rule 3, Civil P. C.? It provides :

'On the application of any deft. in a suit for the payment of money, in which the pltf. is a woman, the Court may at any stage of the suit make a like order if it is satisfied that such pltf. does not possess any sufficient immoveable property in India.'

29. The important consideration is 'sufficient immoveable property in India'. I do not read this provision in the Civil P. C. that security of costs is to be ordered only on the ground of sex & only because the pltf. is a woman. The Court has to be satisfied, in addition, that the pltf. woman does not possess sufficient immoveable property in India. Possession of sufficient immoveable property in India is not a consideration bearing on sex at all. The rationale of law under which security for costs can be demanded or ordered is to ensure that the successful litigant is compensated in costs which can be realised. The basic criterion is therefore that the person who is ordered to secure for costs is one who has not sufficient property out of which to pay the successful litigant's costs. That is clearly recognised in the provision contained in Order 25, Rule 1 (3), Civil P. C. It is therefore, in my judgment, not a discrimination on the ground 'alone' of sex so as to violate Article 15(1) of the Constitution.

30. Then again, it must be a discrimination before any question of infringement of the fundamental right under Article 15(1) of the Constitution can arise. What is discrimination? Discrimination is comparative in its connotation. Discrimination on the ground of sex alone must mean that one sex is discriminated as against the other. Discrimination is double-edged. To discriminate against one sex is to discriminate in favour of the other, but inherent in the very notion of every discrimination is a measure of comparison. The language used in Article 15(1) of the Constitution 'discriminate against' should, in my view, be understood in the above light. There cannot be any discrimination 'against' without a resulting & corresponding discrimination in favour of some one else which would be commonly known as preference for that some one else. Discrimination & preference are, twin & inseparable ideas. Etymologically the word 'discriminate' comes from the Latin origin 'discriminare' which means to divide, separate or distinguish. James Murray's New English Dictionary published by Oxford Clarendon Press (1897), Vol. III p. 436 gives the meaning of the expression 'to discriminate against' as 'to make an adverse distinction with regard to or to distinguish unfavourably from others.'

31. A reference to Sub-article 3 of Article 15 of the Constitution will be appropriate & useful at this stage. It provides :

'Nothing in this article shall prevent the State from making any special provision for women & children.'

32. My own reading of this Sub-article (3) is that it only refers to future provision that is made after the coming of the Constitution & does not affect the existing law at the commencement of the Constitution such as Order 25 Rule 1 (3) of the Code.

33. But I am also of the opinion that this Sub-article (3) of Article 15 of the Constitution does not protect discrimination against women or children.

34. It has been urged before me that 'special provision' for women may discriminate against women & such discrimination will be protected by Sub-article 3 of Article 15 of the Constitution. I am unable to accept this argument. It is ordinarily a salutary & wholesome principle of construction that difference in language used should mean a difference in meaning. It is not an absolute rule but a general principle to be deviated from only in exceptional circum-stances. By using therefore the language 'special provision', the framers of the Constitution did not, in my view, intend to convey the same idea as 'discriminate against' used in Sub-article 1 of Article 15. If that were so, the same language would have been used. I am, therefore, of the opinion that the expression 'discriminate against' in Sub-article 1 & 'special provision for' in Sub-article 3 of Article 15 of the Constitution should not be so construed as to mean directly the same idea & to be directly overlapping. The expression 'special provision for' denotes provisions especially for women & children as distinguished from the general which is applicable to all alike & that such special provision is 'for' i.e. in favour of women or children. The idea is to enable the State to make special provision in favour of women & children to protect their interest which the framers of the Constitution thought in their wisdom demand protection in the present context of social well-being in this country. But the moment you make special provisions for women or children, you have to discriminate against those who are not women or children & those discriminated against would have been entitled to challenge the validity of such special provision on the ground of violating Sub-article 1 of Article 15. That is why Sub-article 3 begins with the language 'Nothing in this article shall prevent the State', & thus protects discrimination in favour of women or children which otherwise could have been impugned by those not being women or children. The construction therefore that appears to me sensible & logical & as expressing & reflecting the true intention of the Constitution is that the State can make special provisions for women or children which although may mean preference for them or discrimination against those who are not women or children & that in spite of Sub-article 1 of Article 15 of the Constitution.

35. A careful analysis of the various provisions in Rule 1 of Order XXV, Civil P. C. does not lead me to the conclusion that they at all discriminate against the female sex. Sub-rule 1 makes a male pltf. liable for security of costs if he is outside India & does not possess 'sufficient immoveable property in India'. Sub-rule 2 only extends the scope of a person who will be deemed to be residing out of India. Sub-rule 3 uses the significant words 'a like order'. Going through these different sub-rules in Rule 1 Order 25, one finds the dominant note of proprietary & not sex consideration & they come into force in appropriate circumstances mentioned therein whether the pltf. is a male or a female & to make the 'like order' for security of costs, whether against the male pltf. or the female pltf. On this view of the provisions of Rule 1 of Order 25, Civil P. C., I am of the opinion that they do not represent any discrimination in fact apart from the views I have expressed that it certainly is not 'on ground only' of sex. But there is yet on this branch, another consideration which should be noticed. Reading together these different sub-rules in Rule 1 of Order 25, Civil P. C. one result is that a non-resident male pltf. without sufficient immoveable property in India is put on the same level as a resident woman pltf. without sufficient immoveable property in India. But a difference has resulted between a resident woman pltf. & a resident male pltf. although they are both without sufficient immoveable property. In the former case the law provides for taking security for costs but in the latter the law does not do so. Lack of property & residence in India being the common features the provision in the law for security for costs against the woman pltf. & not against the male pltf. is said to be a discrimination which can only be explained on the ground of sex alone. To my mind such argument suffers from a fallacy. Order 25 Rule 1 (3) of the Code is not. a law that can be said to discriminate against women on the ground of sex alone. The discrimination is made on the combined grounds of sex & property & as such is outside the bar of Article 15 of the Constitution, & the law providing it is not repugnant to Article 15 & is therefore permissible law within the competence & power of the lawmaking authorities. While therefore on a comparison between the case of a property-less woman pltf. with the case of a property-less man pltf. the difference can only be explained on the ground of sex only the fact remains that the impugned law itself does not proceed to make the discrimination on the ground of sex alone. The point is that not all discriminations on the ground of sex are within the bar provided by Article 15 of the Constitution but only those discriminations on the ground of sex alone & on no other grounds.

36. In my judgment, therefore, the provisions contained in Order 25 Rule 1 (3), Civil P. C. are not 'ultra vires' the Constitution & do not infringe the fundamental right guaranteed under Article 15(1) of the Constitution.

37. I refuse to be guided in this case by the American precedents. The 19th Amendment of the American Constitution provides that

'The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.'

Both the language & the theme of the 19th Amendment of the American Constitution are different from those of Article 15 of the Constitution of India. The craze for American precedents can soon become a snare. A blind & uncritical adherence to American precedents must be avoided or else there will soon be a perverted American Constitution operating in this land under the delusive garb of the Indian Constitution. We are interpreting & expounding our own Constitution.

38. In my judgment this application must fail & is dismissed with costs. Certified for counsel.


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