Vasudevan Pillai v. Bhavani Amma — 1955 DIGILAW 80 (KER)

Judgment :- 1. The only question raised in this Second Appeal is whether the suit should have been dismissed for the plaintiff's failure to produce along with the plaint, an order of the Government permitting him to seek redress regarding Service Inam lands in respect of which the suit was instituted. The relevant statutory provision was contained in S. 8 of the Travancore Civil Procedure Code of 1100. The Section as it stood on 11.8.1123, the date of institution of the suit, was in these terms: "No Civil Court shall take cognizance of any suit relating to pensions, to Kandukrishi, Viruthi or Service Inam lands, or to any benefits arising out of such lands, unless the plaint is accompanied by an order of Our Government permitting the plaintiff to seek redress in Civil Courts". The plaintiff obtained such sanction during the pendency of the suit and produced the same in court on 11.7.1123. The suit was decided by the trial court only on 21.12.1123. The courts below held that such sanction having been produced during the pendency of the suit, a decree could be given to the plaintiff. It is this finding that is objected to in Second Appeal. 2. As the laws stood on the date of the institution of the suit, it was open for the court to dismiss the suit on the ground that the requisite permission of the Government had not been produced by the plaintiff and such a dismissal would not have been open to objection. The 1st defendant wanted this question to be decided first but the trial court ordered that the same would be heard after his examination. The first defendant does not appear to have pressed this question after his examination was over and by the time the case was finally heard, the plaintiff had obtained the permission necessary for the prosecution of the suit. It was contended by Shri M.P. Ramakrishna Pillai, learned counsel for the appellant, that the permission of the Government not having been produced along with the plaint, the suit should have been dismissed, in spite of the fact that such permission was obtained during the course of the trial. It was contended by Shri M.P. Ramakrishna Pillai, learned counsel for the appellant, that the permission of the Government not having been produced along with the plaint, the suit should have been dismissed, in spite of the fact that such permission was obtained during the course of the trial. The specific question whether production of such sanction during the pendency of the suit was sufficient compliance with S. 8 does not appear to have arisen for decision in any of the reported cases of this court or of the High Court of Travancore. However, in Lekshmi Pillai v. Bhagavathi Pillai (28 T.L.R. 250) reference is made to an unreported decision of the Travancore High Court in A.S. No. 405 of 1083 and A.S. No. 18 of 1084 wherein it was held that such sanction given either before or during the suit was sufficient compliance with S.7(a) of the Code of Civil Procedure, corresponding to S. 8 of the Code of 1100. One of the points that arose for decision in the unreported case was whether the lower court should have taken cognizance of the suit as the plaint was not accompanied by Government sanction as required by S. 7(a) of the Code. Ramachandra Row and Muthunayagom Pillai, JJ. held as follows: "On the second point, we are disposed to follow the ruling in 8 Cal. 422 and hold that the original defect did not prevent the suit from proceeding after the Government sanction required under S. 7 of the Civil Procedure Code was received. See also 17 Born. 169 where it was held that a suit filed without a certificate (as required by the Pensions Act, on the lines of which our S. 7(a) is drafted) could not be treated as bad ab initio. S.7(a) prevents only cognizance of the suit but not its entertainment. To "cognize" is to hear and determine - vide Century Dictionary - and not simply to entertain. As when the sanction Ext. K was produced the plaint had not already been rejected for mere "non-compliance with the provisions of S.7(a), there was an existing suit when the sanction was received in court and the same was, we think rightly proceeded with, heard and determined". The expression "take cognizance" has not been defined by the Code. According to Wharton's Law Lexicon, the meaning of the word "cognizance" is "the hearing of a thing judicially". 3. The expression "take cognizance" has not been defined by the Code. According to Wharton's Law Lexicon, the meaning of the word "cognizance" is "the hearing of a thing judicially". 3. I may here extract S. 4 of the Pensions Act XXIII of 1871 which has come up for consideration in several decisions of the Indian High Courts: "Except as hereinafter provided, no Civil Court shall entertain any suit relating to any pension or grant of money or land revenue conferred or made by the Government or any former Government, whatever may have been the consideration for any such pension or grant, and, whatever may have been the nature of the payment, claim or right for which such pension or grant, may have been substituted". In the decision of the Bombay High Court referred to in the unreported judgment, Sargent, C.J. held: "But the District Judge is wrong in treating the suit as bad ab initio by reason of its having been filed without a certificate. The remarks of the Privy Council in Nawab Mohamed Azmat Ali Khan v. Mussumat Lalli Begum (L.R. 9 I.A. 20) show that this is not so and that the court is only precluded from taking cognizance of it until the certificate is produced". This view was adopted by the Lahore High Court in Jagat Singh v. Mohan Bir Singh (A.I.R. 1928 Lah. 713). The Allahabad High Court has also held that the failure to produce the certificate along with the plaint was not a fatal defect and that the production of the same during the course of the trial was sufficient compliance of the requirements of S. 4 of the Pensions Act. In Ihtisham Ali v. Shyam Sunder (I.L.R. 25 All. 73), time to produce the certificate was given by the High Court, in appeal from a suit which was dismissed by the trial court on the ground that the certificate had not been produced. Ganpat Rao v. Ananda Rao (I.L.R. 28 All. 104) is another case in which the certificate was allowed to be produced at the appellate stage. In Hafiuddin v. Mohammed Amin (A.I.R. 1950 All. 371), Bhargava, J. after reviewing the decisions of the various High Courts adopted the view that the defect due to non-production of the certificate along with the plaint was only a technical defect which could be cured at any time before the claim became barred. In Hafiuddin v. Mohammed Amin (A.I.R. 1950 All. 371), Bhargava, J. after reviewing the decisions of the various High Courts adopted the view that the defect due to non-production of the certificate along with the plaint was only a technical defect which could be cured at any time before the claim became barred. Desai, J. observed that the matter might go to the root of the jurisdiction but that he was not called upon to decide the question whether the production of the certificate at any stage of the suit before the claim became barred, was sufficient compliance with the requirements of the section. It was held in that case that the claim was barred on the date the certificate was produced and that the suit had to be dismissed in respect of that item of property which required the certificate. In Mohammed Ata Hussain v. Nawab Baqar Mirza (A.I.R. 1937 Oudh 484) the Chief Court of Oudh allowed the plaintiff to produce such certificate in appeal. Thus it is seen that the view held by the Travancore High Court in the unreported decision referred to above is well-supported by authority. I respectfully follow the same. Even if the court could not proceed with the trial of the suit before production of the sanction, and even if the suit be deemed to have been properly instituted only on 12.7.1123 when the sanction was produced in court, no question of limitation would arise. In the circumstances of the case, the courts below correctly held that the suit should not be dismissed on the ground that sanction under S. 8 of the Code was not filed along with the plaint. 4. There is also another ground on which the appellant should fail. During the pendency of the suit in the lower appellate court, the Travancore Code of Civil Procedure was repealed and the Indian Code was made applicable to this State by Act II of 1951 (Central). There is no provision corresponding to S.8, in the Indian Code. 4. There is also another ground on which the appellant should fail. During the pendency of the suit in the lower appellate court, the Travancore Code of Civil Procedure was repealed and the Indian Code was made applicable to this State by Act II of 1951 (Central). There is no provision corresponding to S.8, in the Indian Code. Clause.(1) of S.20 of Act II (1951) is as follows: "If immediately before the date on which the said Code comes into force in any Part B State, there is in force in that State any law corresponding to the said Code, the law shall on that date stand repealed; Provided that the repeal shall not affect - (a) the previous operation of any law so repealed or anything duly done or suffered thereunder, or (b) any right, previlege, obligation or liability acquired, accrued, or incurred under any law so repealed, or (c) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed". Shri. M.P. Ramakrishna Pillai, learned counsel for the appellant, contended for the position that S. 8 of the Travancore Act was not a mere matter of procedure but of substantive right and that under Cl. (b) of the proviso to S. 20 extracted above the rights should be deemed to have been left intact when the Travancore Code was repealed. I am unable to accept this argument. It was by the Royal Proclamation promulgated by the Maharaja of Travancore in the year 1061 that Civil Courts in the State were prohibited from trying suits relating to such properties. The Proclamation imposed an absolute bar but the rigour of the rule was relaxed when the Travancore Code of Civil Procedure (1065) was amended by Act II of 1070 which introduced a new section as S.7(a) corresponding to S.8 of the Code of 1100. The object of S.7(a) was to remove the prohibition on the trial of such suits and prescribe the procedure for the same. It cannot be argued that a right was conferred on defendants by S.8 of the Code and that such right was left intact by the repeal of the Code of 1100. The object of S.7(a) was to remove the prohibition on the trial of such suits and prescribe the procedure for the same. It cannot be argued that a right was conferred on defendants by S.8 of the Code and that such right was left intact by the repeal of the Code of 1100. The effect of the repeal of the Travancore Code of Civil Procedure is that the said Code must be considered as having never existed except for the purpose of those actions which were commenced, prosecuted and concluded while the said Code was in force. If the suit had been dismissed under S.8 before the date of the repeal, such dismissal could have been pleaded as a right acquired under the repealed law, as provided by Cl. (b) of the proviso to S.20. The procedure prescribed for such suits having been repealed during the trial of a suit, retrospective effect must be given to the present Code so far as actions pending on the date it came into force are concerned. It must therefore be held that the failure to produce the permission of the Government under S.8 of the repealed Code cannot entail dismissal of the suit. The concurrent finding of the courts below on this question is therefore confirmed. 5. No other question arises for decision in this Second Appeal. It is therefore dismissed. Both sides will bear their costs in this court. Dismissed.