Bombay Dyri!SQ <b

MtJ/nujar.Mdinq .co.1W.

\".

The State o/ Bum.bay umd Ol/u:r8

VnkaWama

Aiytn' J.

JanVGry 22.

SUPREME COURT REPORTS [1958]

stated above. The appeal succeeds in part, but as it is stated that "unpaid accumulations" form by far the most substantial portion of the claim, we direct the respondents to pay half the costs of the appellant here and in the Court below.

Appeal allowed in part.

RAJA GANGA PRATAP SINGH

THE ALLAHABAD BANK LTD., LUCKNOW

\S. R. DAS C. J., VENKATARAMA AIYAll, B. P. SINHA,

J. L. KAPUR and A. K. SARXAll JI.)

Statute, Constitutional validity of-Whether a question of inteTPretation of the Conltitution-Severabilitl/, if 1hottld be considered before deciding question of validitv-Dutii of Court

-Code of Civil Procedure (V of 1908), s. 113 proviso-Con1Utution of India, An. 228.

The respondent, a scheduled bank, sued the appellant for recovery of money under a mortgage. The appellant claimed reduction of the debt under the Uttar Pradesh Zamlndari Debt Reduction Act, 1953. An advance or debt due to a scheduled bank was excluded from the definition of "debt" lliven In the Act. The appellant contended that the definition In so far as It excluded certain debts offended Art. 14 of the Constitution as it made an arbitrary distinction between several cluses of debton.

The appellant applied to the court under the proviso to 1. 113 of the Code of Civil Procedure prayinc that a case be stated for the opinion of the High Court as to the validity of the impugned portion of the definition. The Court rejected the application. The appellant made an application in revision to the High Court and also an application under Art. 22.8 of the Constitution for withdrawing the case for a decision of the question of the validity of the definition. The Higb Court dismiased the aPplications. The Courts below held that in eitber view of the question as to the validity of the impu&ned portion of the definition, the appellant would be left without the remedy which he sought, because that portion of the definition was not severable from the rest and the whole definition would have to be excluded and therefore it was not necessary to decide that question to dispose of the case :

S.C.R.

SUPREME coun:r REPORTS 1151

Held, that the question raised by the appellant came both 1968 within the proviso to s. 113 of the Code and Art. 228 of the Con- . - stitution. The question whether the impugned part of the defini-8".111 8 . alt:lp tion contravened Art. 14 was a question as to the interpretation """ of the Constitution and that question must be decided first. The PT.e.Ji.kabad question of severability could arise only after that question had Bank Lt<l been decided and the impugned part field invalid, Luolma111 .,

CIVJL APPELLATE JuRJSDJCTTON: Civil Appeal No. 357 of 1957.

Appeal by special leave from the judgment and order dated February 28, 1956, of the Allahabad High Court (Lucknow Bench) in Misc. Case No. 4 of 1955 and Civil Revision No. 189 of 1955, arising out of the order dated August 6, 1955 of the Civil Judge, Sitapur in Suit No. 16 of 1953.

Vidya Sagar. for the appellant.

Iqbal Ahmad, S. N. Andley and Rameshwar Nath, for the respondent.

1958, January 22. The following Judgment of the Court was delivered by

SARKAR J.-The respondent, a scheduled bank, sued the SarkGr J. appellant in the court of the Civil Judge, Sitapur m Uttar Pradesh, for the recovery of money due under an instrument of mortgage. The appellant contested the suit on several grounds one of which was that he was entitled to relief under the Uttar Pradesh Zamindar's Debt Reduction Act (U.P.

XV of 1953) which reduced the amount recoverable on a debt as defined in it. Now a debt was defined in the Act in these terms:

2(f) : "debt" means an advance in cash or in kind and includes any transaction which is in substance a debt but does not include an advance as aforesaid made on or after the first day of July, 1952 or a debt due to-

'U) the Central Government or Government of any

State;

(ii) a local authority;

(iii) a scheduled bank;

(iv) a co-operative society; and

Raj" f)anga Pralap

Singh

The .1lllahabwl &•nk Ltd.,

Lucknow

SUPHEME COURT REPORTS [1958]

(v) a waqf, trust or endowment for a charitable or religious purpose only.

(vi) a person, where the debt was advanced on his behalf by the Court of Wards to a ward.

As the respondent was a scheduled bank the debt due to it from the appellant was not a debt within this definition and consequently, no relief would appear to be available to . the appellant under the Act in respect of that debt. The appellant, however, contended that the definition in so far as it excluded certain debts offended Art. 14 of the Constitution in as much as it made an arbitrary distinction between several classes of debtors and denied the excluded debtors, the equal protection of the law and that hence that portion of the definition which excluded certain debts was invalid and should be struck out and the rest of the definition should be left as operative. If the appellant\ contention was justified, the definition would have to run as follows:

"debt" means an advance in cash CJr in coin and includes any transaction which is in substance a debt, and would then include the debt due by the appellant to tte respondent. If this was the correct position, then the appellant would be entitled to all the reliefs granted by the Act.

This defence, therefore, raised a question as to the vali-· <lity of a provision in the Act. So the appellant made an applicatibn to the Civil Judge, Sitapur, under the proviso to s. 113 of the Code of Civil Procedure asking him to state a case for the opinion of the High Court at Allahabad to which he was subordinate as to the invalidity of the impugned portion of the definition. That proviso is in these terms:

Provided that where the Court is satisfied that a case pending before it involyes a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which .is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to

S.C.R.

SUPRFJl\IE COUR'f REPORTS 1153

Ganga Prnla7 Sing!,

which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons Baja therefor, and refer the same for the opinion of the High Court.

The learned Civil Judge took the view that the impugned ponion of the definition infringed art. 14 of the Constitution

The .t1.Zlal1"bw

Bank L~I ..

JA,,; k/,,.·.;·

a~ it made an <irbitrary distinction between several classes of debtors and was therefore invalid, but he held that it was not ne&ssary for the disposal of the case to decide such question

t~ invalidity because even if it was decided in favour of the appellant, the result would be to exclude the entire definition from the Act as the offending portion was not severable from the rest and the appellant would, therefore, be in any event left without the protection of the Act. In this view of the matter he held that the proviso to s. 113 of the Code did no't apply and dismissed the application under it.

The appellant then made an application to the High Court at Allahabad for a revision of the order of the learned CiviLJudge. He at the same time made another application to the High Court under Art. 228 of the Constitution. That Mticle is in these terms:

If the High Court is satisfied that a case pending in a court subordinak to it' involves a substantial question of law as to the interpretation of this Constitution the determination nf which is necessary for the disposal of the case. it shall withdraw the case and may-

(a) either dispose of the case itself, or

(b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with <i copy of its judgment on such question, and the

.~<iid court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.

The appeilant in the latter application prayed that the High Court might be pleased to withdraw the case and either dispose it of itself, or determine the question of the validity of the definition of debt in the Act and return the case to the court

Sa'rl:nr .1.

1968 of the Civil Judge, Sitapur, for final disposal in accordance &; a c;,,.,.. P""°I' with such determination .

• 'liftflh Th< ; ilnM•~ The High Court disposed of both the applications by one f::.!'4" judgment. It held that there was no dispute as to the constitutional principle which was clear, namely, that every citizen was entitled to the equal protection of the laws and that any enactment which infringed that principle, is to that extent void, and that the only dispute was whether the impugned portion of the definition of a "debt" in the Act was severable from the rest and that was not a question of the interpretation of any provision of the Constitution but one of the construction of the Act itself. The High Court also held that even if any question of the interpretation of the Cons.titution arose, a determination of that question was not necessary for the disposal of the case. In this view of the matter the High Court dismissed the application in revision and also that under Art.

228. From this judgment the present appeal has been filed.

Sar/car J.

It seems clear to us that the question raised by the appellant in this case comes within the proviso to s. 113 of the Code . as also art. 228 of the Constitution. The question contemplated by the proviso to s. 113 of the Code is as to the validity of an Act or of a provision in it while Art. 228 of the Constitution has in view a question as to the interpretation of the Constitution. Now the question raised in the present case is as to the validity of a provision in the Zamindar's Debt Reduction Act This question is, however, also a question as to the interpretation of the Constitution, for the validity of the provision is challenged on the ground that it contravenes an article of the Constitution.

The point that really arises in this appeal is whether it is necessary for the disposal of the case to decide the question of the validity of a portion of the definition of a debt in the Act. All other conditions necessary for an order being made under the proviso to s. 113 of the Code or Art. 228 of the Constitution exist and as to this there is no serious dispute. It is l9S8 not necessary for us therefore to discuss these conditions.

Raja Ganga Pratap

Singh The courts below held that in either view of the question v.

The .AUaliabad of the validity of the impugned portion of the difinition of a Bank Ltd., debt, the appellant would be without the remedy which he Lucknoto sought, because that portion of the definition was not sever Sarkar J. able from the rest, and therefore it was not necessary to decide that question to dispose of the case. We are unable to agree with this view. The question of the validity of the defini

tion in so far as it excluded certain debts having been raised .and pressed by the appellant, it had . to be decided by the court. Without a decision of that question the case could not be disposed of. The fact that in the view of the court the impugned part of the definition was not severable from the rest and therefore in any view of the questioo as to the validity of the impugned part, the appellant would not get any relief, did not alter the position. The question a.s to the severability of the impuped part of the definition from the rest would arise only after it had been decided that the impugned part was invalid and so to be able to say that the impugne'd part of the definition was not severable from the rest, it had first to be held that that part was invalid. It could not be said that as the impugned part wa~ not severable from the rest it was not necessary for the disposal of the case to decide the question of the validity of the impugned part. We, therefore, bold that it is necessary to decide the question of the validity of the impugned part of the definition to dispose of the case.

This appeal is hence allowed. The High Court will withdraw the case and either dispose it of itself or determine 'the question o~ the validity of the definition of a debt in the Zamindar's Debt Reduction Act and return the case to the Civil Judge, Sitapur, for disposal in accordance with its deter- . mination of the question. The appellant wilf get the costs of

this appeal.

Appeal allowed.