B. K. THAPPER Vs. VIJAY KUMAR

JUDGEMENT

(1.) THIS is an application under Articles 132 and 133 of the Constitution of India for leave to appeal to the Supreme Court against the judgment of this Court dt. 29.12.75. Reported in AIR 1976 J and K 51 (FB).

(2.) IN a suit for ejectment brought by the respondents against the petitioners the following agreed issue was framed by the learned Single Judge:

(3.) MR I.D. Grover appearing for the defendants has submitted that the question decided by the Full Bench has far-reaching implications and is going to affect a large number of pending cases and it also raises an important and substantial question of law of general importance as to the interpretation of the Constitution. He has further submitted that the learned Single Judge who made reference to the Full Court was himself of the opinion that the matter raised before him was of general importance which had bearing on a large number of cases. He has urged that the Presidential order or for the matter of that Article 14 of the Constitution makes no difference whether the right is sought to he enforced by way of claim or by way of defence. It is a right available to a citizen in appropriate proceedings. Even in the majority judgment, it is argued, there is divergence of view expressed on construction of the Order of the President. According to one view right under Article 14 could not be enforced at all during the operation of the order either by way of claim or defence and that the plea raised must be held as incompetent and suit tried minus the plea raised. The view has been enunciated on the principle that a party be he plaintiff or defendant loses locus standi to raise the plea in all proceedings he they fresh or pending. According to the other view the order affects only such pending proceedings in which right under Article14 is sought to be enforced only by way of claim and not by way of defence can be suspended. In other words tending proceeding in which right is sought to be enforced by way of claim will remain stayed but, i the right is claimed by way of defence that right will not survive and the plea raised in defence must be dismissed as incompetent. It is, therefore, all the more necessary that the matter should go to the Supreme Court for an authoritative pronouncement on the question, Leave, it is requested may, therefore, be granted.