Judgment

HIDAYATULLAH, J. : This is an appeal by the plaintiff against the judgment and decree of the Judicial Commissioner, Ajmer confirming the decree of the trial Judge dismissing the suit. It comes before us on a certificate under Arts. 132 (1) and 133 (1) (c) of the Constitution granted by the High Court of Rajasthan after the reorganisation of the States.

2. The suit was filed by the appellant for recovery of Rs. 23,998-12-0 as price of goods supplied in the year 1947 to the Ruler of Jaipur State, (including interest) and damages suffered by the appellant due to the refusal of the defendants to take delivery of some other goods similarly ordered. In addition to the ex-Ruler of Jaipur, his Military Secretary and one Mohabat Singh, an employee of the ex-Ruler, were also joined as defendants, on the plea that they had placed the orders as agents of the ex-Ruler. The suit was filed on February 28, 1951. The ex-Ruler raised the plea that the suit was incompetent, as the consent of the Central Government under S. 87B of the Code of Civil Procedure was not obtained and asked that the suit be dismissed. The other defendants denied the claim and also their liability on various grounds, it may be mentioned the Military Secretary (second defendant) has since died and this appeal is now directed against the ex-Ruler and Mohabat Singh only.

3. The Subordinate Judge held that though the suit was filed prior to the enactment of S. 87B by S. 12 of the Code of Civil Procedure (Amendment) Act, 1951(II of 1951), it could not be continued against the ex-Ruler. He adjourned the hearing for four months to enable the appellant to obtain the necessary consent. The appellant applied to the Central Government for its consent, but it was refused. He also applied in revision to the Judicial Commissioner, contending that S. 87B of the Code of Civil Procedure offended the equality clause in Art. 14 of the Constitution and was thus void, but the Judicial Commissioner rejected the contention. He also refused a certificate on the ground that there was no final order as required by Art. 132 (1) of the Constitution. The suit was subsequently dismissed against all the three defendants. In regard to the exRuler, it was held that no suit lay against him without the consent of the Central Government, and in regard to the remaining defendants, it was held that they were protected by S. 230 of the Indian Contract Act. Sub-section (3) of that section was held inapplicable, inasmuch as a suit could be filed against the ex-Ruler with the consent of the Central Government. The appellant appealed to the Judicial Commissioner, Ajmer, but the appeal was dismissed. He obtained a certificate, as stated above, and this appeal has been filed.

4. Two main questions have been raised in this appeal. The first is that the dismissal of the suit against the ex-Ruler was erroneous. In support of this contention, it is urged that S. 87B of the Code of Civil Procedure is ultra vires the Constitution in view of Art. 14, and in the alternative, that S. 87B, even if valid, cannot apply to this suit, which was pending when the section was enacted. The right to continue the suit being a substantive right, cannot, it is submitted, be taken away except by a law which is made applicable to pending actions, either expressly or by necessary intendment. Against the other respondent, it is contended that he was liable as an agent or at least, as a sub-agent, in view of the provisions of S. 230 (3 ) of the Indian Contract Act. We are not concerned with the merits of the claim, and they have not been mentioned at the hearing.

5. We shall begin by considering whether S. 87B is ultra vires and void. It is said that it discriminates in favour of ex-Rulers of Indian States by creating an immunity from civil actions. Prior to the present Constitution, Part IV of the Code of Civil Procedure contained provisions in respect of suits in particular cases. This was divided into three parts. Sections 79 to 82 d