UNITED INDUSTRIES Vs. DALWADI AND CO

JUDGEMENT

(1.) This revision application is directed against an order passed by the City Civil Court Ahmedabad granting leave to defend the suit on condition of depositing Rs. 4000/on or before 25th March 1965. The suit was filed by the plaintiffs against the defendants to recover a sum of Rs. 6 377.66 p. being the balance of the price in respect of bricks sold and delivered by the plaintiffs to the defendants together with interest at nine per cent per annum. Defendants Nos. 2 to 5 were admittedly partners of the first defendant at the relevant time when the bricks are alleged to have been sold and delivered by the plaintiffs but it was the case of the defendants in the affidavits in reply that the first defendant was dissolved prior to the filing of the suit. The plaintiffs alleged that diverse quantities of bricks were sold and delivered by the plaintiffs to the defendants from time to time between Samvat Year 2017 to 2019 and In respect of the said transactions an account was maintained in the name of the first defendant in the books of account of the plaintiffs. The price In respect of the bricks supplied by the plaintiffs to the defendants was debited in this account and the various amounts paid by the defendants to the plaintiffs in part payment of the price of the bricks were credited in this account. According to the plaintiffs a sum of Rs. 6 377 was due and payable by the defendants to the plaintiffs at the foot of this account at the date of the filing of the suit and since the defendants failed to pay the said amount the suit was filed by the plaintiffs to recover the same from the defendants. The plaintiffs filed the suit as a summary suit and after the defendants filed their respective appearances the plaintiffs took out a summons for judgment for a decree for the amount claimed in the suit. The defendants resisted the summons for judgment by filing two affidavits in reply one by defendants Nos. 2 3 and 4 and the other by defendant No. 5. The learned Judge hearing the summons for judgment after taking into account the plaint and the affidavits made an order granting conditional leave to the defendants to defend the suit on their depositing a sum of Rs. 4000/on or before 25th March 1965. Defendants Nos. 1 to 4 thereupon preferred the present revision application In this Court challenging the validity of the said order.

(2.) The revision application originally came up for hearing before A. D. Desai J. on 29th September 1967. Before that date a decision was given by Raju J. on 23rd August 1967 in Civil Revision Application No. 1116 of 1963 holding that sec. 122 of the Civil Procedure Code in so far as it empowered the High Court by rules to annual alter or add to all or any of the rules in the First Schedule was inconsistent with the Proviso to Article 227 and was therefore unconstitutional and ultra vires Article 372 of the Constitution. if this decision was correct rules 142 to 148 of the Ahmedabad City Civil Court Rules would be ultra vires since they were made under sec. 122 and were admittedly inconsistent with the amended rules of Order 37 though to a limited extent and it would not be competent to the learned Judge of the City Civil Court to impose a condition while granting leave to the defendants to defend the suit. A. D. Desai J. however found difficulty in agreeing with the view taken in this decision particularly since in his opinion this decision was directly in conflict with a decision given by a Division Bench of this Court on 2nd February 1967 in Civil Revision Application No. 1089 of 1966. (M/s Keshavlal v. Manubhai IX G.L.R 171). He therefore referred the revision application to a Division Bench and that is how the revision application comes before us. It may be pointed out that it does not appear from the record of Civil Revision Application No. 1116 of 1963 that notice to the Attorney General was issued by Raju J. before declaring a part of sec. 122 of the Civil Procedure Code unconstitutional and ultra vires. But since the question of vires of a part of sec. 122 of the Civil Procedure Code was Involved in this revision application A. D. Desai J. while referring the revision application to a Division Bench ordered notice to issue to the Attorney General. No one however appears on behalf of the Attorney General.

(3.) The first question which arises for consideration is whether sec. 122 of the Civil Procedure Code in so far as it empowers the High Court by rules to annul alter or add to all or any of the rules in the First Schedule is inconsistent with the Proviso to Article 227 and is therefore unconstitutional by reason of Article 372. Now Article 3 2 provides that notwithstanding the repeal by the Constitution of the enactments referred to in Article 395 but subject to the other provisions of the Constitution all the law in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. It can therefore hardly be disputed that if any part of sec. 122 of the civil Procedure Code is inconsistent with any provision of the Constitution it would cease to be in force by virtue of Article 322. The view taken by Raju J. in Civil Revision Application No. 1116 of 1963 was and is the view relied upon by Mr. S. K. Jhaveri learned advocate appearing on behalf of defendants Nos. 1 to 4 in support of the revision application-that the impugned part of sec. 122 empowering the High Court to make rules annulling altering or adding to all or any of the rules in the First Schedule was inconsistent with the Proviso to Article 227. The learned Judge observed:-