UCO BANK Vs. ROOPA RAM

JUDGEMENT

(1.) This special appeal is directed against the judgment of the learned Single Judge dated 3-1-2003 (reported in 2003 AIHC 1273) affirming the judgment and decree dated 20-4-1995 passed by the Additional District Judge No. 2, Jodhpur in Civil Original Suit No. 263/1994.

(2.) Mr. L. R. Mehta, learned counsel appearing for the respondent has raised preliminary objection with respect to the maintainability of the special appeal in view of the prohibition provided by S. 100-A of the Code of Civil Procedure as amended by C.P.C. (Amendment) Act, 1999 and C.P.C. (Amendment) Act, 2002 read with Section 32 of the C.P.C. (Amendment) Act, 1999. In view of the importance of the question raised a general notice inviting assistance of the lawyers whosoever desires of throwing light on the aforesaid issue about the maintainability of appeal with respect to the orders passed by the learned Single Judge in exercise of ordinary civil jurisdiction in the matters arising under the Code of Civil Procedure before and after 1-7-2002 was given. On the request of the learned counsel for the parties, D. B. Civil Special Appeal No. 75/2002 M/s. Dataram Ramesh Kumar v. DIG, BSF and D. B. Civil Special Appeal No. 85/2002 Ramesh Kumar v. R.S.R.T.C. and others in which the same controversy is involved, have also been taken up for hearing.

(3.) A brief resume of relevant facts will help in focusing the attention dealing with the preliminary objection. The fact drawn from D. B. Civil Special Appeal No. 27/2003 UCD Bank v. Roopa Ram are that respondent plaintiff Roopa Ram filed a suit for ejectment against the appellant Bank in respect of the property situated on the High Court Road in the city of Jodhpur on the ground of reasonable and bona fide necessity. The suit was decreed by the judgment dated 20-4-1995 by the Additional District Judge No. 2, Jodhpur. The defendant appellant filed a regular first appeal under Section 96 of the Code of Civil Procedure before this Court. The learned Single Judge dismissed the appeal by judgment dated 3-1-2003 affirming the judgment and decree passed by the trial Court. The Bank has filed special appeal under Article 225 of the Constitution of India. It is relevant to mention that special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is provided against the judgment of the learned Single Judge with certain limitations. The Ordinance, 1949 came to be repealed by Judicial Administration Law (Repeal) Act, 2001. The Full Bench of this Court, in State of Rajasthan v. R. C. Misra, reported in (2003) 1 Raj LW 155 held that repeal of High Court Ordinance, 1949 by the Act of 2002 will have no effect whatsoever on the exercise of power of jurisdictional Bench in the matter of hearing of appeals against the judgments of the learned Single Judge as it will continue to exercise such jurisdiction vested by virtue of Article 225 of the Constitution of India and thereafter, under Article 52 of the State Re-Organisation Act, 1956. The Court held that the effect of Article 225 was akin to incorporation of such provisions in relation to subject dealt with under it, as were in parent legislature or instrument under which respective High Courts were set up in the first instance before commencement of Constitution or as per the practice or procedure followed by existing High Courts. Thus, Section 18 of the Rajasthan High Court Ordinance, 1949 in spite of repeal survives under Article 225 of the Constitution of India by virtue of incorporation. In Ram Sarup v. Munshi, reported in AIR 1963 SC 553, the Apex Court held that where provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. Therefore, there should not be any obsession in reading Section 18 of the Rajasthan High Court Ordinance, 1949 simply because it has been repealed by the Judicial Administration Law (Repeal) Act, 2001. Much hounded Section 18 of the Rajasthan High Court Ordinance, 1949 is extracted as follows:-