//
you're reading...
legal issues

Whether an appeal is maintainable against ad-interim ex-parte injunction was granted by the Subordinate District Council Court

       On  30th
September, 2009, an  ad-interim  ex-parte  injunction  was  granted  by  the
Subordinate District Council Court
By an order dated 29th  October,  2009,  the  District  Council  Court
admitted an appeal against the said order  and  stayed  it.   By  a  further
order dated 9th March, 2010, the  ad-interim  ex-parte  injunction  was  set
aside as the District Council Court allowed the  appeal
A  Civil  Revision
Petition was filed against the said order, and by the impugned  order  dated
27th April, 2012, the revision was allowed stating that since an appeal  had
been filed within 30 days of the ad-interim ex-parte order, it would not  be
maintainable  under  the  Code  of  Civil  Procedure  and,  therefore,   the
appellate order was set aside.
The Division Bench has unfortunately failed to refer  to  Rule  28
of the 1953 Rules and has applied the letter of Order 39 Rule 3A  read  with
Order 43 of the Code of Civil Procedure.  This is the  basic  error  in  the
judgment.  On the facts  of  this  case,  the  appeal  becomes  maintainable
because Rule 28 of the 1953 Rules  provides  for  such  appeal  without  any
requirement that ordinarily it should be filed only  after  30  days.   Even
otherwise, the judgments relied upon  by  the  respondent  state  that  such
appeal is maintainable under the Code of Civil Procedure, but the court  may
relegate the appellant to the alternative remedy provided –  an  application
to vacate the stay within  30  days.  This  in  turn  does  not  go  to  the
maintainability of the appeal but only goes to whether discretion  ought  to
be exercised against the appellant if the provisions of  Order  39  Rule  3A
have been  followed.   We,  therefore,  allow  the  appeal,  set  aside  the
judgment dated 27th April, 2012 of the High Court and restore  the  judgment
dated 9th March, 2010 of the District Council Court.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1232 OF 2015
[Arising out of SLP (Civil) No.16099 of 2012]

Shri Westarly Dkhar & Ors. …….Appellants

Versus

Shri Sehekaya Lyngdoh
……..Respondent

J U D G M E N T

R.F.Nariman, J.

Special leave granted.

2. The instant appeal by way of a Special Leave to Appeal has been filed
against the judgment and final order dated April 27, 2012 passed by the
High Court of Gauhati, Shillong Bench at Shillong in Civil Revision
Petition No. 18 (SH) of 2010 filed by the Respondent.

3. The appeal arises out of an ex-parte ad-interim injunction passed by
the Subordinate District Council Court in a suit instituted by the
Respondent, which is registered as Title Suit No. 16 of 2009. On 30th
September, 2009, an ad-interim ex-parte injunction was granted by the
Subordinate District Council Court, in the following terms:

“On careful perusal of the same, I am satisfied that there is an urgency in
the matter for restraining the opposite parties from entering into the suit
land.

I am also satisfied that the petitioner shall suffer irreparable loss
and injury if the ad-interim injunction is not granted as it can be
evaluated from the materials available on the record, without giving into
the merits of the case, hence the ad-interim injunction is granted as
prayed for.

Therefore, the ad-interim injunction is granted to the petitioner
whereby the opposite parties No.1-4 or their agents or any persons acting
on their behalf or instruction from the opposite parties No. 1-4 are hereby
restrained from entering or working in the suit land as per schedule
mentioned in the plaint.”

4. By an order dated 29th October, 2009, the District Council Court
admitted an appeal against the said order and stayed it. By a further
order dated 9th March, 2010, the ad-interim ex-parte injunction was set
aside as the District Council Court allowed the appeal. A Civil Revision
Petition was filed against the said order, and by the impugned order dated
27th April, 2012, the revision was allowed stating that since an appeal had
been filed within 30 days of the ad-interim ex-parte order, it would not be
maintainable under the Code of Civil Procedure and, therefore, the
appellate order was set aside.

5. Learned counsel for the appellants argued that the Civil Procedure
Code does not apply in these areas but only the spirit thereof applies.
The appeal was very much maintainable as it was granted by Rule 28 of The
United Khasi-Jaintia Hills Autonomous District (Administration of Justice)
Rules, 1953.

6. Learned counsel for the respondent, on the other hand, supported the
judgment under appeal and stated that this Court’s judgment in A.
Venkatasubbiah Naidu v. S. Chellappan & Ors., (2000) 7 SCC 695 fully
supported the case of the respondent inasmuch as an aggrieved party cannot
approach the Appellate Court during the pendency of the application for
vacation of a temporary injunction. An appeal can only be entertained
under an extraordinary circumstance – namely, the failure or omission of
the Subordinate Court to comply with the provisions of Order 39 Rule 3A.
Further, the learned counsel relied upon the judgment in Innovative Pharma
Surgicals v. Pigeon Medical Devices Pvt. Ltd. & Ors., AIR 2004 AP 310,
stating the same thing.

7. The United Khasi-Jaintia Hills Autonomous District (Administration of
Justice) Rules, 1953 (hereinafter referred to as “1953 Rules”) have been
made under Paragraph 4 of the Sixth Schedule to the Constitution of India.
Rules 28, 29 and 47 are quoted hereinbelow, as they are applicable to the
facts of this case:

“28. Appeal to District Council Court – An appeal shall lie to the District
Council Court from the decisions of a Subordinate District Council Court in
any case, Civil or Criminal. The District Council Court may hear the
appeal itself or may endorse it for hearing to the Additional District
Council Court:

Provided that when the District Council Court is not sitting by
reason of its Presiding Officer being on leave or otherwise, the appeal
shall lie to the Additional District Court.

Provided further that such appeals are, accompanied by a copy of the order
appealed against and a clear statement of the ground of appeal, and are
filed within sixty days from the date of the order, excluding the time
required for obtaining a copy of the order appealed against.]

29. District Council Court to be a Court of Appeal – Subject to the
provision of rules 30 and 32, the District Council Court shall be a Court
of appeal in respect of all suits and cases triable by Additional
Subordinate District Council Court. The District Council Court may hear the
appeal itself or may endorse it for hearing to the Additional District
Council Court:

Provided that when the District Council Court is not sitting by reason of
its Presiding Officer being on leave or otherwise the appeal shall lie to
the Additional District Council Court.

Provided further that such appeal are accompanied ‘by a certified copy of
the order appealed against and a clear statement of the ground of appeal
and are filed within sixty days from the date of the order excluding the
time required for entertaining a copy of the order appealed against.

47. Procedure in civil cases – In civil cases, the procedure of the
District Council Court, [the Additional District Council Court] the
Subordinate District Council Court [and the Additional Subordinate District
Council Courts] shall be guided by the spirit but not bound by the letter
of the [Code of Civil Procedure, 1908 as amended up to date] in all matters
not covered by recognized customary laws or usages of the District.”

8. It is clear from the reading of these Rules that an appeal is
provided as a matter of right from all “decisions” of a Subordinate
District Council Court to the District Council Court. That an interim
order is a “decision” for the purpose of these Rules is not disputed before
us. Further, under Rule 47, in civil cases, these courts shall be guided
by the spirit but not bound by the letter of the Code of Civil Procedure in
all matters not covered by customary laws. In State of Nagaland v. Ratan
Singh Etc., (1966) 3 SCR 830, this Court, when confronted with a challenge
to these Rules, repelled the challenge in the following terms:
“In order to avoid this implication, the Rules are attacked as ultra
vires Arts. 21 and 14. Article 21 is used because it is contended that
these Rules do not amount to law as we understand it, particularly where
the Rules say that not the Criminal Procedure Code but its spirit is to
govern the administration of justice. It is urged that this is not a law
because it leaves each officer free to act arbitrarily. This is not a fair
reading of the Rule. How the spirit of the code is to be applied and not
its letter was considered by this Court in Gurumayum Sakhigopal Sarma v. K.
Ongbi Anisija Devi (Civil Appeal No. 659 of 1957 decided on 9th of
February, 1961) in connection with the Code of Civil Procedure. With
reference to a similar rule that the courts should be guided by the spirit
and should not be bound by the letter of the Code of Civil Procedure this
Court explained that the reason appeared to be that the technicalities of
the Code, should not trammel litigation embarked upon by a people unused to
them. In that case although a suit was ordered to be dismissed for default
of appearance, an order was passed on merits. The question arose whether it
was dismissed under O. 9, r. 8 or O. 17, r. 3 of the Code of Civil
Procedure. It was held by this Court that it did not matter under which
Order it was dismissed but that no second suit could be brought on the same
cause of action without getting rid of the order dismissing the suit. In
this way this Court applied the spirit of the Code and put aside the
technicalities by attempting to find out whether the dismissal was
referable to O. 9, r. 8 or O. 17, r. 3 of the Code. That case illustrates
how the spirit of the Code is used rather than the technical rule. In the
same way, under the criminal administration of justice the technical rules
are not to prevail over the substance of the matter. The Deputy
Commissioner in trying criminal cases would hold the trial according to the
exigency of the case. In a petty case he would follow the summons procedure
but in a heinous one he would follow the procedure in a warrant case. The
question of a Sessions trial cannot arise because there is no provision for
committal proceeding and there are no Sessions Judges in these areas.
Therefore, the Deputy Commissioner who was trying the case observed that he
was going to observe the warrant procedure and in the circumstances he was
observing the spirit of the Code.
Laws of this kind are made with an eye to simplicity. People in backward
tracts cannot be expected to make themselves aware of the technicalities of
a complex Code. What is important is that they should be able to present
their defence effectively unhampered by the technicalities of complex laws.
Throughout the past century the Criminal Procedure Code has been excluded
from this area because it would be too difficult for the local people to
understand it. Instead the spirit of the Criminal Procedure Code has been
asked to be applied so that justice may not fail because of some
technicality. The argument that this is no law is not correct. Written law
is nothing more than a control of discretion. The more there is of law the
less there is of discretion. In this area it is considered necessary that
discretion should have greater play than technical rules and the provision
that the spirit of the Code should apply is a law conceived in the best
interests of the people. The discretion of the Presiding Officer is not
subjected to rigid control because of the unsatisfactory state of defences
which would be offered and which might fail if they did not comply with
some technical rule. The removal of technicalities, in our opinion, leads
to the advancement of the cause of justice in these backward tracts. On the
other hand, the imposition of the Code of Criminal Procedure would retard
justice, as indeed the Governor-General, the Governor and the other heads
of local Government have always thought. We think, therefore, that
Art. 21 does not render the Rules of 1937 ineffective.
A similar attempt is made by comparing these Rules with the Criminal
Procedure Code applicable in the rest of India. It is contended that this
leads to discrimination. We think that the exigency of the situation
clearly demands that the Criminal Procedure Code should not apply in this
area. It is not discrimination to administer different laws in different
areas. The Presidency towns have got special procedures which do not obtain
in other areas. We have known of trial by jury in one part of India for an
offence which was not so triable in another. Similarly, what is an offence
in one part of India is not an offence in another. Regional differences do
not necessarily connote discrimination and laws may be designed for
effective justice in different ways in different parts of India if people
are not similarly circumstanced. These backward tracts are not found
suitable for the application of the Criminal Procedure Code in all its
rigour and technicality, and to say that they shall be governed, not by the
technical rules of the code but by the substance of such rules is not to
discriminate this area against the rest of India.
It is contended that there is discrimination between the Tuensang District
and the other two districts of the State because in the other two districts
the Code of Criminal Procedure applies. This seems to be stated in the
judgment of Mr. Justice C. Sanjeeva Rao Nayudu who proceeded upon a
concession of Advocate-General of Nagaland. We have, however, no reason to
think that the Advocate-General could have conceded this point. It was made
clear to us that there was some mistake and the assumption made by Naidu J.
was based on a misapprehension. It is now admitted by Mr. A. K. Sen on
behalf of the respondents that the Criminal Procedure Code does not apply
to any of the three districts and therefore there is no question of any
discrimination between one district and another in Nagaland.
Lastly, it is contended that the Rules themselves allow for discrimination
because one officer may take something to be the spirit of the Criminal
Procedure Code and another may not. The requirements of the case must
determine what should be applied from the Criminal Procedure Code and what
should not. The Rules have been purposely made elastic so that different
kinds of cases and different situations may be handled not according to a
set pattern but according to the requirements of the situation and the
circumstances of the case. In a backward tract the accused is not in a
position to defend himself meticulously according to a complex Code. It is,
therefore, necessary to leave the Judge free so that he may mould his
proceedings to suit the situation and may be able to apply the essential
rules on which our administration of justice is based untrammelled by any
technical rule unless that rule is essential to further the cause of
justice. This would rather lead to less discrimination because each accused
would be afforded an opportunity which his case and circumstances require.
The Rules of 1937 were designed for an extremely simple and sophisticated
society and approximate to the rules of natural justice. It is impossible
in such circumstances to think, that because the Judge has more discretion
than if he acted under the Criminal Procedure Code or is able to bring
different considerations to the aid of administration of justice that there
must be discrimination. If a Judge does not apply the spirit of the Code
but goes against it or acts in a manner which may be considered to be
perverse the High Court will consider his action and set it right. As we
said earlier the law has not attempted to control discretion by Rules in
this area but has rather left discretion free so that the rule may not
hamper the administration of justice. As there is no vested right in
procedure the respondents cannot claim that they be tried under the
Criminal Procedure Code in this State where the Code is excluded. In such a
situation it is difficult to find discrimination.” (at pages 851-853)

9. In Longsan Khongngain v. State of Meghalaya, (2007) 4 GLT 938, a
Division Bench of the Assam High Court stated:
“We have already noticed that the Code of Criminal Procedure has no
application to the tribal areas unless made applicable by the appropriate
State Government by a notification. A similar declaration is contained
under Section 1 of the Code of Civil Procedure also. Therefore, the courts
constituted under paragraph 4 of the 6th Schedule either by the District
Council or the Regional Council, as the case may be, are not bound by the
procedures prescribed under either of the Codes referred to above. Para
4(4):
“A regional Council or District Council, as the case may be, may with the
previous approval of the Governor make rules regulating–
(a)……………………………
(b) The procedure to be followed by village councils or courts in the trial
of suits and cases under sub-paragraph (1) of this paragraph.”
Stipulates that those courts are to function in accordance with the
procedure evolved by the rules made by the District Council or Regional
Council as the case may be with the previous approval of the Governor. Such
procedures may or may not be available for adjudicating some of the
complicated questions arising out of the various laws in force in the
tribal areas. The purpose of creating special provisions under the 6th
Schedule of the Constitution for the administration of tribal areas is the
perception that the tribals are less “sophisticated” than the non-tribals
and, therefore, the normal gamut of laws would be too complicated for the
tribals to understand and obey. But the tribals are not wholly exempted
from the entire body of law made either by the Parliament or the
appropriate State Legislature. Some of those laws still operate either
wholly or part on the tribals, for example, the Indian Penal Code and the
Passports Act which do not recognize any exception in their operation in
favour of the tribals. Should an issue arise regarding the rights and
obligations created under the Passports Act between a tribal and an
authority created under the Passports Act or should a tribal is accused of
offence under the provisions of the Passports Act. The procedure evolved by
the Village Courts might become inadequate for an appropriate adjudication
of the issues involved in such litigation having regard to the complexity
of the matter. In order to meet such a situation, in our view, the Governor
is authorized under paragraph 5 of the 6th Schedule to invest such powers
as he deems fit, available either in Code of Civil Procedure or Code of
Criminal Procedure, either on the District Council or Regional Council or a
court constituted by the District Council (Village Court).
Paragraph 5 also authorises the Governor to invest an officer with such
powers available under the Cr.P.C. or CPC, as the Governor may deem fit,
having regard to the situation that is required to be dealt. Obviously such
a power is entrusted by the Governor to meet a situation where the Governor
comes to the conclusion that the Village Courts may not be able to meet the
requirement of a given situation.” (at para 13)
10. Two things become clear. An appeal is provided as a matter of right
under Rule 28 of the 1953 Rules and only the spirit of the Code of Civil
Procedure applies. This being clear, the law laid down in A.
Venkatasubbiah Naidu v. S. Chellappan & Ors., (2000) 7 SCC 695 and M/s
Maria Plasto Pack (P) Ltd. v. Managing Director, U.P. Financial
Corporation, Kanpur & Ors., AIR 2004 ALL. 310, will not apply as both
judgments are based upon the letter and not the spirit of the Code of Civil
Procedure. What applies is Rule 28 of the 1953 Rules which provides a
right of appeal in all civil cases from all decisions of Subordinate
District Courts. The judgment under appeal states:

“7. As already noticed, both the parties were effectively and adequately
represented before the appellate court or the trial court by their
respective counsel, who cannot said to be unaware of the complexities of
the Code of Civil Procedure. Fortunately, no plea is made by the
respondents that they have been substantially prejudiced or hampered by the
technicalities of complex laws such as the Code of Civil Procedure, which
ordinarily bars an appeal from an ex-parte order of injunction. The
contention of the learned senior counsel is that as only the spirit of the
Code of Civil Procedure is followed in Courts constituted under the Sixth
Schedule, the respondents could not be barred from preferring an appeal
against the ex-parte order of injunction passed by the trial court. Though
the argument appears to be attractive at the first blush, it does not stand
closer scrutiny on deeper consideration. In the first place, when it is
nobody’s case that the parties were unrepresented and were prosecuting the
case by themselves without the assistance of legal experts, there can be
no bar in applying the letter of the Code of Civil Procedure in a forensic
battle fought between parties well and adequately represented by their
respective counsel. On the contrary, the application of the letter of the
Code of Civil Procedure even in a District Council Courts and Courts
subordinate to them constituted under the Sixth Schedule will ensure
fairness, certainty, predictability and consistency in the procedure
adopted by them. However, if both the parties are not assisted by legal
experts, depending upon the facts and circumstances of the case as they
develop in the course of trial, such Courts, in order to ensure that
neither of the parties are hampered by the complexities and technicalities
of the Code of Civil Procedure may consider the question as to whether
there should be strict application of the Code or not. No doubt, such
discretion is expected to be exercised by the Court judiciously and not
arbitrarily or whimsically: judicial discretion like any discretionary
power is to be exercised in a reasonable manner. In the instant case, I
have a sneaking suspicion that both the parties were indulging in forum
hunting to obtain favourable order at the expense of the other. I say no
more in this behalf. The case must go back to the trial court for
consideration of the application for temporary application filed by the
petitioner.”

11. We fail to understand how the letter of the Civil Procedure Code
would apply depending upon whether parties are or are not assisted by legal
experts. The Division Bench has unfortunately failed to refer to Rule 28
of the 1953 Rules and has applied the letter of Order 39 Rule 3A read with
Order 43 of the Code of Civil Procedure. This is the basic error in the
judgment. On the facts of this case, the appeal becomes maintainable
because Rule 28 of the 1953 Rules provides for such appeal without any
requirement that ordinarily it should be filed only after 30 days. Even
otherwise, the judgments relied upon by the respondent state that such
appeal is maintainable under the Code of Civil Procedure, but the court may
relegate the appellant to the alternative remedy provided – an application
to vacate the stay within 30 days. This in turn does not go to the
maintainability of the appeal but only goes to whether discretion ought to
be exercised against the appellant if the provisions of Order 39 Rule 3A
have been followed. We, therefore, allow the appeal, set aside the
judgment dated 27th April, 2012 of the High Court and restore the judgment
dated 9th March, 2010 of the District Council Court.

………………………………..J.
(J. Chelameswar)
………………………………..J.
(R.F. Nariman)
New Delhi,
January 28, 2015

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,729,188 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,854 other followers

Follow advocatemmmohan on WordPress.com