Bilal Nazki, J.

This is a matter, which is a sad reflection on certain aspects of the judicial system of this country. Coming up this matter before us was a very sad experience in our long association with the judiciary as we must admit that we were not aware as to what abuse judicial prosecution can be put and to what extent the system would fail in checking the abuse of process of law.

2. The original suit being Suit No. 284 of 1966 was filed before the High Court in the year 1966. It remained pending with the High Court till the year 1970. On 10th April, 1970 the High Court (Mr. Justice Kantawala, as His Lordship then was) transferred the suit to the Bombay City Civil Court in view of the provisions of Section 6(2)(ii) of the Maharashtra Act, 1970 known as Bombay Court Fees Act. The suit was renumbered in the Bombay City Civil Court and then trial started. Now this matter has come back to the High Court after 42 years on a reference made by the Judge of the Bombay City Civil Court in terms of Section 113 of the Code of Civil Procedure.

3. Onthe first flush one could see the dispute itself was not maintainable. But for 42 years the unscrupulous elements were not only able to continue with the suit but were also able to enjoy a blanket stay of the prosecution of hundreds of members of the Plaintiffs enjoying complete immunity from prosecution for violation of the provisions of Prevention of Food Adulteration Act. The number of these persons, who are enjoying this benefit, is 140. Originally, the High Court passed order on 31st March, 1967. This order was continued by the Bombay City Court. Then it appears that the appeal was filed being Civil Appeal No. 2825 of 1975, which was disposed of by the High Court on 19th April, 1976 continuing the earlier order of staying the prosecution in cases under the Prevention of Food Adulteration Act.

4. Now coming to the suit, the suit only is for a declaration to declare certain clauses of Section 2, amendment to Sections 14, 16 and 16A of the Prevention of Food Adulteration Act as unconstitutional. Besides these sections being challenged, more than 20 Rules framed under the Prevention of Food Adulteration Act were also challenged as ultra vires. There was no other relief claimed. The trial Court on the basis of the pleadings framed 29 Issues. All Issues except 5 issues relate to constitutionality of each of the provisions, which means whether the particular provision was ultra vires or not. A separate issue was framed for each of the provisions of the Act or the Rule. The first five issues were framed as under:

.(1) Whether this Court has got no jurisdiction to entertain and try this suit by reason of Section 113 of the Civil Procedure Code and/or Article 228 of the Constitution of India?

.(2) Whether the suit for declaration and injunction as framed for in the plaint is not maintainable as contended in para 1 of the written statement?

.(3) Whether the leave obtained by the Plaintiffs under Order 1 rule 8 of the Code of Civil Procedure is liable to be quashed as contended in para 2 of the Written Statement?

.(4) Whether the Plaint suffers from misjoinder of the Plaintiffs and causes of action?

.(5) Whether the suit is barred by limitation as contended in para 4 of the Written Statement?

These issues were treated to have been preliminary issues and were decided by an order dated 5th March, 1984. By this order the Court held that it had jurisdiction to try the suit inspite of Section 113 of the Code of Civil Procedure and Article 228 of the Constitution of India. It also held first two issues in favour of the Plaintiff and the issues which had been framed like Issue Nos.3,4 and 5 over which the onus was with the defendants were decided against the defendants. When the suit came for final decision, after leading of evidence by the parties, the trial court passed the judgment on 21st April, 2001 and the trial court referred the matter under Section 113 of the Code of Civil Pr