BRAJDEO NARAIN SINGH Vs. DOMINION OF INDIA

JUDGEMENT

(1.) This petition is directed against an order of the Additional Subordinate Judge, Palamau, on what he describes as an application for substitution. It arises out of a title suit pending in the Court of the Subordinate Judge, the petitioner being one of the defendants in the suit. The suit was filed by the Government in 1933 with regard to certain underground rights. As provided by Section 79, Civil P. C., as it then stood, the plaintiff was described as the Secretary of State for India in Council. Under the provisions of the Government of India Act, 1935, Section 179, the Secretary of State for India must be deemed to have been substituted since 1937 for the Secretary of State for India in Council. A further change in the description of the plaintiff was necessitated by the Indian Independence Act, 1947, the relevant provisions of Section 15 of which are as follows :

(2.) Subject to the provisions of this sub-section, any legal proceedings which, but for the passing of this Act, could have been brought by or against the Secretary of State in respect of any right or liability of India, or any part of India, shall instead be brought. (a) in the case of proceedings in United Kingdom, by or against the High Commissioner, (b) in the case of other proceedings, by or against such person as may be designated by order of the Governor-General under the preceding provisions of this Act or otherwise by the law of the new Dominion concerned ; (c) and any legal proceedings by or against the Secretary of State in respect of any such right or liability as aforesaid which are pending immediately before the appointed day shall be continued by or against the High Commissioner, or, as the case may be, the person designated as aforesaid: Provided that, at any time after the appointed day, the right conferred by this sub-section to bring or continue proceedings may, whether the proceedings are by or against, the High Commissioner or person designated aa aforesaid, be withdrawn by a law of the Legislature of either of the new Dominions so far as that Dominion is concerned, and any such law may operate as respects proceedings pending at the date of the passing of the law."

(3.) Mr. Saran's first contention is that Ordinance No. XII [12] of 1948 is ultra vires of the Governor-General under Section 42, Government of India Act. This section, as it stands subsequent to adaptations made in pursuance of the Governor-General's powers under Section 9, Indian Independence Act, 1947, is as follows: