Mumtajuddin and Others vs Fatima Begum

Palnitkar, C.J.—This is a reference by the Second Judge of the City Civil Court. The reference is worded as follows:

The point in issue is whether the provisions of Section 13 of Act X of 1952 preclude the Court from entertaining the suit or not and whether the Atiyat Enquiries Act No. X of 1952 is invalid or inoperative.

2.We have heard the arguments of the parties at length. Shri Shankarrao Borgaonkar, the learned Counsel on behalf of the Plaintiffs, states that the question of the validity or otherwise of Section 13 of the said Act does not arise at all in this case. His contention is mainly that oven conceding that Section 13 is valid, is not applkublo to the facts of this case. Raja Bahadur Bishweshwarnath, the learned Advocate on behalf of the Defendant argues and submits that Section 13 has been held valid in Kamal Yar Jung''s case, vide Ahmedunissa Begum v. State of Hyderabad ILR 1952 Hyd 595 FB. In view of these statements of the learned Counsel of the parties, we have to consider whether the reference in question has been properly made, especially after the amended Section 113 of the Civil Procedure Code, as amended by Act No. 24 of 1951, has come into force. The wording of the proviso to Section 113 of the CPC is as follows:

Provided that where the court is satisfied that a case pending before it involves 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 or Regulation or provision is invalid or inoperative, has not been so declared by the High Court, to which the court is subordinate, or by the Supreme Court, the court shall state a case, setting out its opinion and the reasons therefore and refer the same for the opinion of the High Court.

In view of the proviso, several questions arise. The first question to be determined is whether the determination of the validity of the Act in question or the Section thereof in question is necessary for the disposal of the case. In view of the statements of the parties, above referred to, it is clear that the determination of the question is not necessary. This reference is, therefore, infructuous. Moreover under the said Section of CPC the Court should also, express its opinion on the question whether in the opinion of the Court, the Act in question is invalid or inoperative. We find from the reference that the lower court has not expressed any opinion in this regard. We are, therefore, of the view that the reference has not been properly made, it does not arise and that it should be rejected. The reference is rejected as above. We make no order as to costs.