VIJAYRAJ Vs. VISHNU DATT

JUDGEMENT

(1.) THIS is an application by the plainiffs for leave to appeal to Ijlas-I-Khas against a judgment, dated the 24th of February, 1949, of the former High Court of the Covenanting State of Jodhpur.

(2.) THE petitioners sued the opposite party for possession of a house, situated at Jodhpur, of the value of Rs. 4100/-, and claimed Rs. 25o/-as mesne profits uptil the date of suit. THE District Judge decreed the suit for possession of the house, but dismissed the claim for mesne profits. THE defendants filed an appeal while the plaintiffs put in cross-objections. THE High Court of Jodhpur, by its judgment dated the 24th of February, 1949, accepted the defendants' appeal and dismissed the suit. THE cross-objections were automatically dismissed. THE plaintiffs filed this petition for leave to appeal on the 25 th of April, 1949, under the Ijlas-I-Khas Rules promulgated by His Highness the Maharaja Sahib Bahadur of Jodhpur on the 12th of December, 1945. An appeal lay to Ijlas-I-Khas in this case as the valuation of the subject matter in dispute in the Court of first instance and in the proposed appeal to His Highness is more than Rs. 4000/ -, and the decree of the High Court is one setting aside that of the trial Court so far as the claim for possession is concerned. It is, however, argued that under Section 49 of the Rajasthan High Court Ordinance of 12th August, 1949, the documents of the several Courts functioning as High Courts in the Covenanting States are to be treated as the documents of the Rajasthan High Court, and by virtue of Section 40 of the same Ordinance, the judgments of the Rajasthan High Court are to be treated as final, unless under Section 39 of the same Ordinance the Raj Pramukh constituted a Court to hear the appeals from the judgments of the High Court. THE contention has been exhaustively examined by me in a similar petition (D. B. Certificate case No. 5 of 1949, Shiv Dan Chand Vs. Kalyan Chand 1950 RLW 66), and it was held that under Ordinance No. I of 1949 (Rajasthan Administration Ordinance) all the laws in force in the Covenanting States immediately prior to the enforcement of that Ordinance were declared to continue to remain in force until altered, repealed or amended by a competent authority. On the date of the judgment of the Jodhpur High Court an appeal to Ijlas-I-Khas was competent and the petition for leave to appeal was also presented before the constitution of the Rajasthan High Court. It was also held that Section 49 of the High Court Ordinance purported, firstly, to abolish the several Courts functioning as High Courts in the Covenanting States, secondly, to authorise the transfer of pending cases from the previous High Courts in the Covenanting States to the Rajasthan High Court, and, thirdly, that it was in respect of the pending cases that the document of the former High Courts were to become the documents of the Rajasthan High Court. It was further held that the finality of the judgments of the Rajasthan High Court applied only to such decisions as were to be passed after the constitution of the Rajasthan High Court by that Court, and that the said section did not purport to make final the decisions of the former High Court of a Covenanting State for which applications for leave to appeal had already been presented. THE above view was taken on a consideration of the language of the various Sections of the Rajasthan High Court Ordinance as also 0; Ordinance No. 40 of 1949, (Appeals and Petitions (Discontinuance) (Ordinance ). This Ordinance, as explained in the judgment referred to, served a two-fold purpose, firstly, it declared that no appeals will lie from the decisions of the Rajasthan High Court, thereby declaring that the appellate authority referred to in Section 39 of the Rajasthan High Court Ordinance was not proposed to be constituted, and the other purpose was to make arrangements for the disposal of the appeals etc. already filed by the litigants against the decisions of the various High Courts in the Covenanting States. Ordinance No. 12 of 1950, which made certain amendments to the Appeals and Petitions (discontinuance) Ordinance purported to allow appeals in cases in which the petitions for leave to appeal already filed may be granted. It is unnecessary to reiterate the grounds arrived at for the above conclusions, which are referred to in detail in the said