JEETMAL Vs. NANDLAL

JUDGEMENT

(1.) THIS is a reference by the Civil Judge of Udaipur in a civil suit No. 147 of 2005 Smt. The suit was for pre-emption. An objection was raised by the defendant that in view of Art. 19 (1) (f) of the Constitution of India, read with Art. 13 (1), the right or custom of pre-emption was in-consistent with these provisions and the suit should be dismissed on this ground. The Civil Judge thereupon said in his order that he had read Art. 13 (1) and Art. 19 (1) (f) of the Constitution and was of the opinion that the question related to the interpretation of the Constitution and was of great public importance. Consequently, he sent the file to this court under s. 113 of the Civil Procedure Code. THIS order was passed on the 28th of August, 1950.

(2.) WE are of the opinion that this reference was completely incompetent on the date on which it was made. The learned Civil Judge who looked up sec. 113 of the Civil Procedure Code never cared to look up Order XLVI Rule 1 which provided the procedure for making reference to this Court. Order XLVI, Rule 1 reads as follows : - "where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court. "