RACHAGOUDA GURUSIDDAPPA PATIL Vs. KAMABAI

JUDGEMENT

(1.) I have had the advantage of perusing the learned, exhaustive and instructive judgments of my learned Brothers Hegde, J. and Kalagate, J., proposing the answer to the question referred to the Full Bench for opinion. While Hegde, J., has reached the conclusion that our answer to the question should be in the negative, Kalagate, J., is of the opinion that it should be in the affirmative. After carefully examining the reasoning on which the answer is based, I am in agreement with the conclusion arrived at by Hegde J., that the answer to the question referred to us should be in the negative. I wish only to add a few words and my remarks should, therefore, be very brief.

(2.) I do not propose to review the decided cases of the Bombay High Court on the subject since all those decisions and the principle de-ducible therefrom have all been elaborately dealt with by my learned Brothers in the course of their orders. The principle of law that if a statute purports to exclude the ordinary jurisdiction of Court, it must do so either by express terms or by the use of such words as would necessarily lead to the inference of such exclusion is enunciated by the Privy Council in Secy. of State v. Mask and Co., AIR 1940 PC 105 in these words:

(3.) There is another compelling reason which induces me to reach this conclusion and that is this. It is undisputed that the Civil Courts in India derive their power of making a declaratory decree under Section 42 of the Specific Relief Act. Courts have no power to give a decree independently of that section. The proviso to Section 42 is paramount and its effect cannot be avoided. The said proviso reads: