SAHIDAN Vs. RAHMAT ALI

JUDGEMENT

(1.) The question that is sought to be agitated in this second appeal is as to the validity of the Bihar (Munsif's Proceedings) Valida- tion Act, 1945. Under Section 19(1) of the Bengal, Agra and Assam Civil Courts Act, 1887, the jurisdiction of a munsif extends to all original suits cognizable by Civil Courts of which the value does not exceed one thousand rupees. Sub-section (2) of Section 19, as it stood originally, empowered the Local Government, on the recommendation of the High Court, to direct by notification in the official gazette with respect to any munsif named therein that his jurisdiction should extend to all like suits of such value not exceeding two thousand rupees as might be specified in the notification. In 1914, by the Decentralisation Act, a proviso was added to this sub-section that the Provincial Government may, by notification in the official gazette, delegate to the High Court its powers under it. In 1916 the Local Government of Bihar and Orissa issued a notification delegating this power to the High Court. In 1922 Sub-section (2) of Section 19, was modified so as to enable power to be conferred on munsifs to try suits of a value not exceeding four thousand rupees. No further notification was, however, issued by the Local Government under the proviso to the sub-section. This omission was not realised until 1944 or thereabouts, and, in consequence, the Act, which is now sought to be challenged, was passed in order to remove any doubts as to the validity of decrees which had, in the interval, been passed by Munsifs. Mr. Mehdi Imam, for the appellants, has referred to a passage in Cooley's Constitutional Limitations, volume II, page 792, where it is stated that "if there was originally a failure of jurisdiction, no subsequent law can confer it". Whatever the position may be in the United States of America, legislation of this kind has been passed both in Great Britain and in India, and its validity has not previously been questioned. In 1921 in 'KEYES v. KEYES AND GRAY', 1921 Probate 204, the divorce Court in England held that a decree for dissolution of marriage passed by a High Court in India had been passed without jurisdiction. As, in similar circumstances, a number of such decrees has been passed by the High Courts in India acting in exercise of the jurisdiction conferred on them by the Indian Divorce Act of 1869, the British Parliament enacted the Indian Divorces (Validity) Act, 1921. The ground on which the validity of the decree in 'KEYES v. KEYES AND GRAY', had been successfully challenged was that the parties had not been domiciled in India, and the Indian Divorces (Validity) Act, 1921, provided that such a decree should "be as valid, and be deemed always to have been as valid, in all respects, as though the parties to the marriage had been domiciled in India". In or about 1936 the Judicial Commissioner of the Central Provinces held that for certain reasons, a decree passed by the High Court of Bombay was a nullity. The Indian Legislature thereafter passed the Decrees and Orders Validating Act, 1936. This Act was, presumably, introduced in the Central. Legislature as the object of it was to validate decrees passed by each of the High Courts in three presidency towns. I can see no reason myself to suppose that the provincial Legislature had no jurisdiction to enact the Bihar (Munsif's Proceedings) Validation Act, 1945, and that legislative jurisdiction to do so was possessed by the Indian Legislature alone. The subject-matter of the enactment appears to me to fall clearly under item 2 in the" Provincial Legislative List.

(2.) It is not, however, really necessary to decide the point raised by Mr. Syed Mehdi Imam. The value of the suit, out of which this second appeal arises, was under two thousand rupees. Now, as I have already said, in 1916 the Government of Bihar and Orissa had delegated to the High Court its power to confer on munsifs jurisdiction to try suits up to a value of Rs. 2,000/-. Under Section 24, read with Section 3 (17) of the General Clauses Act, the notification issued in 1916 continued in force. Whether or not under the notification, which was issued by the High Court, the learned munsif, who tried the suit, was legally entitled to try suits of a value exceeding Rs. 2000/-, there can be no doubt but that he had jurisdiction to try suits not exceeding Rs. 2,000/-, in value. Speaking for myself, I entertain some doubt as to whether it was really necessary, however advisable it may have been, for the Legislature to enact the Bihar (Munsifs' Proceedings) Validation Act, 1945. The intention of the Local Government of Bihar and Orissa in 1916 was to delegate to the High Court power to confer on munsifs jurisdiction to try suits of any value not exceeding the maximum value, and, if subsequently the maximum value was raised from Rs. 2,000/- to Rs. 4,000/-, it is, I think, arguable that no further notification was required to be issued by the Local Government. In my opinion, there is no merit in this appeal, and I would accordingly dismiss it with costs. Narayan, J.

(3.) I agree that the appeal should be dismissed. This appeal can be disposed of even without deciding the question whether the Bihar (Munsifs' Proceedings) Validation Act, 1945, was within the competence of the Provincial Legislature, because the suit out of which this second appeal arises was valued at Rs. 1932/- only. There is absolutely no force in the contention of Mr. Imam that because no further notification was issued by the Local Government under the proviso to Sub-section (2) of Section 19 the Munsif had no jurisdiction to try suits even up to the value of Rs. 2000/-. The notification of 1916 by which the Government delegated to the High Court its power to confer on Munsifs jurisdiction to try suite up to a value of Rs. 2000/- could not lose its force.