DAYABHAI POONAMBHAI Vs. NATWARLAL SOMBHAI TALATI

JUDGEMENT

(1.) THESE two revision petitions submit for decision an interesting point as to the validity of a plaint in English in a suit instituted in a Civil Court located in the territory of the former Madhya Bharat. The facts are simple. Natwarlal filed a suit on 13th April, 1956, against Dayabhai, Chhotobhai and Purshottambhai in the court of the District Judge, Indore, for accounts or a dissolved partnership. The plaint was in English. After the service of the summons, the defendants without filing any written statement raised an objection that as the language of the Court was Hindi and the plaint was in English, the plaintiff be directed to file the plaint in hindi before calling upon the defendants to file their written statements. In reply, the plaintiff, while maintaining that the plaint in English was a valid one. filed a Hindi translation of the plaint. Thereupon the defendants raised further objections that as the plaint filed in English was invalid there was no suit at all; that the Hindi translation should be considered as a freshly Instituted plaint against the defendants on the date on which the translation had been filed; and that it required fresh court-fees. The learned Additional District Judge of Indore held that it was not permissible for the plaintiff to file the plaint In English. He further held that the English plaint would be treated as the plaint in the suit till the date of the filing of the Hindi translation thereof; that thereafter the plaint in hindi would be the plaint in the suit, and that the plaint in English would be used for reference as "authoritative". The learned Additional District Judge also held that no fresh court-fee was necessary. The plaintiff and the defendant Dayabhai both have now come up in revision to this Court against the said order of the additional District Judge, Indore. In Civil Revision No. 312 of 1956 filed by Dayabihai it is contended that the order of the lower Court treating the plaint in English as the plaint in the suit up to the date of the filing of the Hindi translation thereof is erroneous and that having found that every plaint was required by law to be in Hindi, the lower Court should have further held that the plaint in English against the defendants was non est. The defendant prays that the order of the lower Court be set aside and this Court be pleased to pass such order as may be thought just and proper. In his revision petition No. 361 of 1956 the plaintiff urges that the learned Additional District judge was wrong in holding that the plaint had to be in Hindi and prays that the order of the lowsr Court be set aside in toto.

(2.) BEFORE stating the contentions of the learned counsel appearing for the parties it seems to be necessary to refer to the relevant provisions of law. After the formation of Madhya Bharat in 194. g and until 23rd January, 1950, the Indore code of Civil Procedure, which was very similar to the Code of 1308, continued to be in force in that part of Madhya Bharat which was formerly Holkar State. Section 139 of the Indore Code of Civil Procedure was analogous to Section 137 of the indian Civil Procedure Code, 1908. and both English and Hindi were used as languages of subordinate Courts in that part of Madhya Bharat comprising of the former Holkar State. On 27th November, 1948, the Madhya Bharat Government issued a notification (published in Gazette dated 27th November, 1948. at page 158) declaring that all proceedings in and judgments of the subordinate Courts should be in Hindi language written in Devnagari script and directing that this shall be the language of all the subordinate Courts in Madhya Bharat after a period of six months. This notification did not In any way effect Sub-section (3) of Section 139 of Indore Civil procedure Code which permitted the use of English for purposes specified therein. The Indore Code of Civil Procedure, as well as the Codes of Civil Procedure in force in various covenanting states of Madhya Bharat, were repealed by Madhya Bharat act, No. 70 of 1949 which adopted the Indian Civil 'procedure Code, 1908, and made it operative throughout Madhya. Bharat. Section 137 of the adapted Civil procedure Code was in the same terms as Section 137 of the Indian Civil procedure Code, 1908. The Constitution then came into force. Article 345 of the constitution is as follows:

(3.) THE contention of Mr. Dubey, learned counsel appearing for Dayabhai was that by virtue of the notification issued by the Madhya Bharat Government on 27th november, 1948, Hindi written in Devnagari script was the official language of all subordinate Courts in Madhya Bharat for all purposes immediately before the commencement of the Constitution and not English; that, therefore, the proviso to article 345 of the Constitution had no applicability, that after the enactment of the madhya Bharat Official Language Act, 1950 (Act 67 of 1950), Hindi was adopted as the language to be used for all official purposes in the State of Madhya Bharat excepting those specified in the notification issued on 26th January 1952, under S, 2 of the Official Language Act; that under Sub-Sections (1) and (2) of Section 137 of the Code of Civil Procedure, Hindi language adopted and declared to be the language for all official purposes and by Act No. 67 of 1950 became the language of subordinate Courts in Madhya Bharat and that therefore, the plaint had to be in hindi in order to be a valid plaint. As to Sub-section (3) of Section 137 Civil Procedure Code, while admitting that it permitted the use of English for certain purposes subject to the condition of a translation being supplied to a party unacquainted with English, learned counsel submitted that this sub-section applied to those cases where after the institution of a suit something other than the recording of evidence was required or allowed by the Code to be done in writing by the Court or by a party or parties in the Court itself during and in the proceedings and that the drawing up of a plaint or its presentation was not a tiling required or allowed to be done in writing in the Court. It was further said that Sub-section (3) of Section 137 must not be construed so as to bring about an inconsistency between the sub-section and the provisions of section 2 of the Official Language Act and defeat the provisions of the Official language Act and that if there was any inconsistency, the provisions of the Official language Act must prevail over Sub-section (3) of Section 137 inasmuch as the official Language Act was a Law made by the Legislature under Article 345 of the constitution. In answer to this argument, Mr. Chitala, learned counsel for the plaintiff Natwarlal, contended that before the commencement of the Constitution, Hindi was no doubt made the language of subordinate Courts under the notification issued on 27th november 1948. but that was subject to the option given by Section 137 (3) of the Code of Civil Procedure, 1908, as adapted in Madhya Bharat by Act No. 70 of 1949 with regard to the use of English for purposes specified in the sub-section; that the notification of 1948 could not be and did not affect the option given by section 137 (3); and that, therefore, English was the optional language, which was being used immediately before the commencement of the Constitution for the purposes mentioned in Sub-section 3 of Section 137 of the adapted Civil Procedure code, and could therefore under the proviso to Article 345 of the Constitution be used for those purposes even after the coming into force of the Constitution. Learned counsel for the plaintiff proceeded to urge that the Madhya Bharat Official language Act simply adopted Hindi as the language to be used for ail official purposes in the State; of Madhya Bharat. It was not a law excluding the use of english altogether or for those official purposes in the State for which English was being used immediately before the commencement of the Constitution, and that, therefore, after the enactment of the Official Language Act, though Hindi became the official language of the subordinate Courts, the use of English was permissible to the extent allowed by Sub-section (3) of Section 137 of the adapted Code of civil Procedure and that this position continued even after the extension of the code of Civil Procedure, 1908, to Madhya Bharat on 1st April, 1951. It was further said that Sub-section (3) of Section 137 of Code of Civil Procedure, 1908, was not controlled by Sub-section (2) or by S, 2 of the Official Language act; that Sub-section (3) of Section 137 did not restrict the use of English only for proceedings after the institution of the suit or to things done by or in the Court itself; that the institution of a suit by a plaint which had to be done in writing was an act required to be done in writing in the Court and that, therefore, the plaint filed by the plaintiff in English was a valid plaint. Mr. Chitale maintained that there was no inconsistency between Section 2 of the official Language Act which simply adopted Hindi as the official language and did not exclude the use of English for purposes for which it was being used immediately before the commoncement of the Constitution, and the provision of section 137 (3) of Civil Procedure Code which continued the option as regards the use of English given by Section 137 (3) of the adapted Code of Civil Procedure which was in force before the commencement of the Constitution and until 1st april, 1951.