Bapna, J. - (1.) THIS case has come up before the Full Bench of this Court, as there was a difference of opinion between two learned Judges of the old Rajasthan High Court, and under sec. 22 (2) (b) of the United State of Rajasthan High Court Ordinance, 1948, the case was referred by the learned Judges to a Full Bench. The case had been pending before the old Rajasthan High Court, and has come by transfer to this Court under sec. 49 of the Rajasthan High Court Ordinance (No. XV of 1949 ).
(2.) THE relevant facts are that there was a firm Ummaid Mal Dharam Chand carrying on money lending and other business at Udaipur, in which there were four partners, viz. , Roshanlal, Lakshmilal, Fatehlal and Omkarlal. THE first two had one-third share each and the last two had the remaining to share. . Disputes having arisen among the partners, they approached His Highness the Maharana of Udaipur for dissolution of partnership and winding up of its affairs. By an order dated Sawan Sud 9, Samwat 1993, four officers viz , Shri Jagannath Singh Mehta, Shri Balwant Singh Kothari, Shri Jawan Singh Ranawat, and Shri Dal Chand Agarwal, were appointed to settle the matter between the parties. Some of these officers were unable to act, and the matter was finally referred to Shri Jawan Singh Ranawat, Shri Gamer Singh, Shri Jagannath Singh Mehta, and Shri Moti Lal Bohara. THEse gentlemen, however, thought it proper to take an agreement from the parties that they would agree to whatever might be decided by these gentlemen as arbitrators. THE arbitrators gave a preliminary award on 22. 12. 1938, in which various objections of the parties were decided, and they submitted their opinion to the Mehkma Khas with a recommendation that three lots be made of the assets in accordance with the award, and as regards the liabilities, each of the partners should undertake to pay to such of the creditors as were related to him. THE arbitrators submitted their report to the Mehkma Khas of Mewar where the parties were directed to produce agreed lists of lots; but as the parties could not agree, the matter was referred again to His Highness who ordered Mehkma Khas to re-submit the papers with their opinion. THEreafter, four lists were prepared. Three of these lists related to the assets of the firm for distribution between the partners. THE fourth list contained the detail of the liabilities, and certain assets were reserved in it, which after realization, were to be utilised towards satisfaction of the liabilities. This list is known as list A, and the relevant recommendation, when translated, is as follows : - "our opinion with respect to list A is that because various persons had deposited amounts with the partnership firm, and if any partner does not repay the amount it would be contrary to the best tradition of Sahukars, therefore, it seems proper and convenient that the three partners should clear off the accounts of Lenden according to the list, and whatever may be left in balance may be distributed between the partners according to thier shares. " THE Mehkma Khas recommended on the 3rd of May, 1940, that if their report was acceptable to His Highness, Shri Jawan Singh Ranawat and Shri Moti Lal Bohara be directed to enforce the recommendations. THE aforesaid two gentlemen were appointed Commissioners to carry out the recommendations of the Mehkma Khas. Some time afterwards, Shri Bhagwat Singh Mehta and Shri Keshri Singh Ranawat were appointed Commissioners in place 'of the previous officers. THEse Commissioners proceeded to realize the assets reserved in list A, and to pay off creditors mentioned in that list: but it was found that the assets reserved, though nominally kept at a figure higher than the debts to be paid actually fetched a loss amount. THE Commissioners accordingly passed an order on the 19th of June, 1946, that as the assets of list A were not sufficient to pay off the creditors in full, each of the partners should produce certain amounts, and if he did not do so, the amounts would be realised by attachment and sale of his property. THE amounts fixed for each party were different, as certain adjustments were made by the Commissioners as became necessary among the partners according to the three lots, which had been approved by the parties and the Mehkma Khas. On the 28th June, 1947, Lakshmi Lal and Fateh Lal made a petition to the High Court of Udaipur, for a writ of the Certiorari, (a) declaring that the realisation of the assets mentioned in list A by the Commissioners was invalid, (b) prohibiting the Commissioners from making payments to creditors contrary to the preliminary award dated 22. 12. 1938, and the order of the Mehkma Khas dated 3. 5. 1940, (c) prohibiting the Commissioners from realizing the assets, or paying off the creditors, mentioned in list A without the consent of the petitioners, and (d) prohibiting the Commissioners from realising any amount from the petitioners in addition to the assests reserved in list A for payment to the creditors. It was mentioned in the petition that the petitioners had filed an appeal against the order of the Commissioners before the Prime Minister, as provided by sec. 6 of the Mewar Proceedings of the Special Commissions Validating Act (No. XVII of 1944), but it had been dismissed. The Commissioners, by their reply dated the 17th of July, 1947, raised a plea that under the Mewar Proceedings of the Special Commissions Validating Act, 1944, their proceedings could not be challenged in any court. They also pleaded that whatever directions had been given by them were in accordance with the order of the Mehkma Khas, dated the 3rd of May, 1940. The petition was also opposed by Roshan Lal who was later made a party. The petition came up for hearing before Dhanopiya Actg. C. J. He dismissed the petition holding inter alia that the Proceedings of the Special Commissions Validating Act was not ultra vires, the legislature, as contended for the petitioners, and that as the Commissioners were functioning in an executive capacity and not as a judicial tribunal, a writ could not be issued. On appeal to Division Bench, Gupta J. agreed with the opinion of Dhanopiya, Actg, C. J. , while Mehta J. was of opinion that although the Mewar Proceedings of the Special Commissions Validating Act was invalid, the Commissioners were acting in a judicial capacity, and they had acted in excess of their jurisdiction in so far as they had called upon the partners to contribute certain sums beyond the assets reserved in list A for payment to creditors. He was of opinion that a writ of prohibition should be issued calling upon the Commissioners not to ask the partners to pay any amount of money beyond what might be available in list A. Owing to the said difference of opinion, the case was to be laid before a Full Bench of the old Rajasthan High Court and it came to this Court by transfer under sec. 49 of Ordinance No. XV of 1949, as aforesaid. Learned counsel for Roshan Lal, and learned Government Advocate, who appeared for the Commissioners, raised certain preliminary objections, viz, (1) that certain important facts and intermediate proceedings had been concealed while making this petition, and on that ground alone this petition should be thrown out. (2) that the petitioners had filed a revision against the order of the Commissioners dated 9th June, 1946, which had been dismissed by the High Court of Udaipur. (3) that the petition for a writ under sec. 45 of the Specific Relief Act as adapted in Mewar, and the said petition had been dismissed. (4) that the petitioners had filed a civil suit claiming the same reliefs, and that suit was pending in a civil court. (5) that the proceedings by the Commissioners could not be called in question before any civil court under sec. 4 of the Proceedings of the Special Commissions Validating Act. On the merits, it was contended that the Commissioners had acted entirely in accordance with the order of the Mehkma Khas dated 3rd May, 1940, and that under the said order a duty had been cast on the Commissioners to pay off the creditors, and the direction to divide any balance of the assets remaining after payment of creditors evolved a corresponding direction that if the assets were insufficient, the Commissioners could call upon the partners to produce equal amounts for payment to the creditors. It was explained that the difference in the amounts called for from the parties was due to adjustment of accounts arising out of the distribution of the lots among the partners. Learned Government Advocate also raised an objection as to the maintainability of the petition on the grounds (1) that a certified copy of the order of the Commissioners dated 19th June, 1946, which was being challenged had not been produced along with the petition, and (2) that the order of the Prime Minister rejecting the appeal on the 4th of July, 1946, was final when passed, and could not be re-opened now. So far as the non-production of the copy of the order is concerned, it may be pointed out that the Commissioners, at any rate, could not claim any want of knowledge of that order, since it were they who had passed the order and it must appear on the file of the proceedings before the Commissioners. Learned Government Advocate, when questioned could produce the order from the file of the Commissioners which had been handed over to him by them along with the instructions in the case. The first preliminary objection was not raised before the single Judge, and it is too late now for the respondents to raise it. The important facts, which are alleged to have been concealed, are those which are the subject of preliminary objections Nos. 2 to 4, and since they have to be dealt with on the merits, it would be improper to throw out the petition on this preliminary point. Learned counsel for the petitioners, when questioned, stated that he did not mention those facts in his petition as he did not consider them relevant to the petition. It may be pointed out that all relevant facts should be mentioned in a petition of this nature, and counsel should not pick and choose in a matter like this, since it may be that what learned counsel may think to be irrelevant may turn out to be very relevant in the case. In the case of U. C. Rekhi vs. The Income Tax Officer (A. I. R. 1951 Simla 1), it was observed that - "uberima fides is essential where an application is made for a rule nisi for a writ of prohibition and therefore, if there is a suppression of material facts in the applicant's affidavit the Court will refuse the writ without going into the merits. " As stated above, the! two courts having gone into the merits already, and this Full Bench having also heard the case at great length, it would be improper not to deal with the merits in this case.
(3.) AS to the second objection, the point was taken in the reply by Roshan Lai in para 7" of the additional pleas, but no date of the decision of the revision was mentioned nor was a copy of the judgment filed in this case. One would not be surprised if the High Court of Udaipur declined to interfere under sec, 115 of the Code of Civil Procedure, as the opening words of that section are that "the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court. " The Commissioners, even if they were acting as presiding officers of a Court, were not subordinate to the High Court, as under sec. 6 of Act No. XVII of 1944, an appeal was directed to lie from the order of the Commissioners to the Prime Minister whose decisions were declared to be final. The dismissal of the revision petition by the High Court of Udaipur, while it had no jurisdiction to interfere, cannot be a bar to the present petition. The third objection needs more consideration. It may be said that in this case also, while the objection has been taken in para 6 of the additional pleas by Roshan Lal, and para 6 of the reply of the Commissioners, a copy of the judgment was not produced. The Specific Relief Act was promulgated in Mewar as Act No. XVIII of 1942, and sec. 45 was so adapted as giving the High Court of Udaipur power to issue orders mentioned in sec, 45 of the Indian Specific Relief Act. This section empowered the High Court of Udaipur to issue writs of prohibitions or certiorary or mandamus within its territorial jurisdiction, and if such an application had been dismissed, the present petition would not lie. But it transpired during the course of arguments that that petition had been withdrawn after the coming into force of the Constitution of Mewar, and no decision was given on that petition on the merits. Learned counsel for the appellants stated that it was withdrawn on the 25th of June, 1947 and the present petition was filed three days later on the 28th June 1947, as it was considered that the powers of the High Court had been widened under the Constitution. It was not denied by the opposite party that the petition under sec. 45 of the Specific Relief Act had been withdrawn without decision on the merits. The fourth objection that the petitioners had instituted a suit for identical reliefs in a civil court was further augmented by an argument that if on the showing of the petitioners themselves they had an alternative remedy, the High Court should refuse to issue any kind of writ. The pleas taken in this connection by the two respondents are not identical. The Commissioners say in para 6 of their additional pleas that the suit, which had been filed by the petitioners in the District Judge's Court, had been dismissed, while para 6 of the reply of Roshan Lal is to the effect that the suit was pending in the Court of the District Judge, and the 15th of April, 1948, was the date of hearing. A copy of the plaint was again not produced in this case; but learned counsel for the respondents was allowed to read the para from his brief and it was stated that the prayer was that a declaration might be issued that the Commissioners to the Government had not been authorised to settle or adjust the dealings between the firm Ummaid Mal Dharam Chand and Rikhab Deo Factory at Fatehnagar, or to compel the plaintiffs to make payment for that purpose. This suit was said to have been filed some time in 1945. In the first place sec. 4 of Act No. XVII of 1944 appears to act as a bar to such a suit. The relevant portion of that section clearly says that "no proceedings conducted to order made by the Commissioners or the Government before or after the passing of this Act in cases specified in Schedule 1 (Ummaid Mal Dharam Chand's case being mentioned in the Schedule), shall be called in question in any proceedings before any Civil Court on the ground that the said Commissioners or the Government had no jurisdiction to conduct such proceeding or to make such order". That section, therefore, clearly barred the jurisdiction of a Civil Court to question the order of the Commissioners or the Government on the ground that they had no jurisdiction to make the order. It was conceded by learned counsel for the respondents that in their written statement before the District Judge a plea had been taken that the court had no jurisdiction to entertain that suit. We are of opinion that the alternative remedy of a suit was not open to the petitioners in this case. Even in cases where an alternative remedy exists the jurisdiction of this Court to issue a writ of prohibition in a proper case is not bared. The statement of law on this subject appears in para 1397 of Halsbury's Laws of England, Hailsham Second Edition, Volume 9, as follows: "the Court, in deciding whether or not to grant a writ of prohibition, will not be fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction, or an appeal lies against such absence or excess. Similarly the fact that an appeal on the merits of the case has already failed or that the party applying for the prohibition has himself initiated the proceedings in the inferior court, is not material to the decision of the Court to grant or to refuse the writ. " On the merits, the jurisdiction of the Commissioners to issue the order of the 19th of June, 1946, was challenged on two grounds, viz. , (1) that the very appointment of the Commissioners had been invalidated by the coming into force of the Mewar Constitution on the 23rd of May, 1947, and (2) that the order of the Commissioners in so far as it called upon the partners of the firm Ummaid Mal Dharam Chand to make contributions from their pockets in addition to what had been reserved in list A for the payment of creditors was in excess of the jurisdiction with which they had been vested by competent authority. It was contended that the dispute between the parties related to the dissolution of the partnership firm and winding up of its affairs, and the suit, if filed by any of the parties, was cognizable by a Civil Court, and that action of His Highness the Maharana of Mewar in appointing a commission was an executive act unauthorized by any law, and with the dawn of democratic era, the appointment and proceedings of such commissions were sought to be validated by Act No. XVII of 1944, but that Act also became inconsistent with the Mewar Constitution, and lost its force. Reference was made to Art. 1, XIII, and XVIII of the Mewar Constitution. Art. 1, Constitution of Cl. (1) of the Mewar declared the Constitution to be the Supreme Law of Mewar, which would over ride all laws whether constitutional or otherwise as were inconsistent with it. Under Art. XIII, Cl. (1), it was provided that "no person shall be deprived of his life or property without due process of law, nor shall any person be denied equality before the law within the territories of Mewar. " Art. XVIII, Cl. (1), declared that "the judicial power of the State shall be vested in the High Court of Udaipur and in such subordinate courts as the Legislature may, from time to time, establish. It was contended that the provisions of Act No. XVII of 1944 were inconsistent with the Constitution in so far as, while Act. XVIII of the Constitution of Mewar declared the judicial power of the State to be vested in the High Court of Udaipur, sec. 6 of Act No. XVII of 1944 made the orders of the Commissioners appealable to the Prime Minister whose decision was to be final, and this was clearly inconsistent with the Constitution more so as the Commissioners were declared to possess all the powers of a civil court under Cl. (2) of sec. 6 of Act No. XVII of 1944. It was also contended that in asking the petitioners to deposit certain amount of money amounted to depriving them of their property without due process of law, as Act. No. XVII of 1944 went so far as to say in the later part of sec. 4 that the orders of the Government or Commissioners made before the passing of the Act could not be challenged in a civil court on the ground that such proceedings or orders were opposed to the provisions of any law, custom or usage for the time being in force. It was urged that the proceedings up to the passing of the award on 22. 12-1938 were by consent of the parties as being by arbitrators who had been appointed by the parties; but that the subsequent proceedings, including the order of the Mehkma Khas dated 3rd May, 1950, which was confirmed by His Highness, were invalid as the Mehkma Khas purported to pass orders in a judicial matter which should have gone to a court of law. It was also urged that the provision as to equality before the law in Art. XIII of the Constitution of Mewar was also infringed, as their case alone was to be dealt with under Act. No. XVII of 1944 by the Commissioners. ;