Judgment

B. K. MUKHERJEA, J. : This appeal is on behalf of the plaintiffs and has come before us on a certificate granted by the High Court of Rajasthan, under Article 132(1) of the Constitution, on the ground that the case involves a substantial question of law as to the interpretation of the Constitution. The appellant has also put in a position praying for leave to urge other grounds on the merits of the case.

2. The suit, out of which this appeal arises, was brought by the appellants, as plaintiffs, on the 16th August 1946 in the District Court I at Jodhpur in Rajasthan against the defendant respondent, claiming to recover from the latter of sum of Rs. 10,342 annas odd together with interest and costs. The plaintiffs, at all material times, carried on the business of commission agents both at Indore and Jodhpur under the name and style of Kanmal Kishenmal and Kannal Surajmal respectively and their case is that between September and December 1945 the defendant entered into several forward contracts for the purchase and sale of bullion through the plaintiffs firm at Indore. These transactions proved unprofitable to the defendant and except a small profit of Rs. 103 annas odd which one of these transactions fetched every one of the rest ended in loss and the loss aggregated to a sum of Rs. 21,423-1-6pies. It is averred in the plaint that this entire amount was paid to third parties at Indore by the plaintiffs on behalf of the defendant and that the plaintiffs received, in all, a sum of Rs. 11,457-8-0, which the defendant paid from time to time, towards these losses, to the plaintiffs firm at Jodhpur. The plaintiffs were therefore entitled to the balance of Rs. 9,361 which together with interest came up to Rs. 10,342 and this was the claim laid in the plaint.

3. The suit was transferred from the District Court to the Original Side of the High Court at Jodhpur and the defendant filed his written statement in the High Court on the 27th October 1947. The defence was a complete denial of the plaintiffs claim and it was contended inter alia that the transactions in suit amounted to wagering contracts and according to the law prevalent in Marwar, as contained in the notification of the Marwar Government dated the 3rd June 1943, all forward business contracts in bullion, in which the date fixed for delivery exceeded 12 days, were illegal and were punishable as criminal offences. No suit was therefore maintainable on the basis of these transactions.

4. On these pleadings a number of issues were raised of which issue No. 5 stood thus :

"Are the transactions in dispute in the suit illegal and the present suit in respect of these transactions is not maintainable on account of the notification dated 3rd June 1943 ?"

5. The suit came up for hearing before a single Judge of the Jodhpur High Court sitting on the Original Side. No evidence was adduced by the parties and the case was heard only on issue No. 5 which was treated as an issue on a pure question of law. It was admitted by the plaintiffs that the contracts to which the suit related covered a period exceeding 12 days, they came within the prohibition of the notification referred to above and a suit based upon them was not maintainable in law. The judgment shows that a contention was raised on behalf of the plaintiffs that the notification was confined only to contracts made in Marwar or intended to be performed in that place, and as the contracts in suit were all entered into at Indore, they could not be hit by the notification. This argument was repelled by the learned trial Judge on a two-fold ground. It was said in the first place that an the suit was actually brought in the Jodhpur Court, the plaintiffs could not avoid facing the notification and the Jodhpur Court could not give them a relief in violation of its own laws. The other reason assigned was based upon section 13 of the Civil Procedure Code and it was said that if the plaintiffs could and did get a decree on the basi