The High Court
Case Details
THE HIGH COURT OF MEGHALAYA AT SHILLONG. CRP [SH] No. 33 of 2013 ….Petitioner Shri Tobias Tiewdop, Secretary of Shella Village Dorbar, Shella Village Dorbar, East Khasi Hills District, Meghalaya. -VERSUS- 1. State of Meghalaya, Respresented by the Commissioner and Secretary to the Govt. of Meghalaya. 2. The Commissioner and Secretary to the Govt. of Meghalaya, Law Department, Government of Meghalaya, Shillong. 3. Shri S. Kharsyiemlieh, Judge, Khasi Hills Autonomous District Council Court, Shillong.
Legal Reasoning
4. Shri Wallamphrang Lyngdoh, Mawphlang, Acting Wahadadar Shella Confederacy, Shella, East Khasi Hills District, Meghalaya. …Respondents BEFORE THE HON’BLE MR. JUSTICE T. NANDAKUMAR SINGH, CHIEF JUSTICE (ACTING) For the petitioner A.Paul, Adv. K.Paul, Adv S. Thapa, Adv H. Kristazi, Adv S. Panthi, Adv R. Dutta L. Warjri, Adv G. Dkhar, Adv : : : : : : : : 1 For the respondents Date of hearing Date of Judgment and Order : : : : K.Khan, Addl. Sr. GA. B.B. Nazary, SC. KHADC 19-8-2013 19-8-2013 JUDGMENT AND ORDER (ORAL) 1. Heard Mr. K.Paul. learned counsel appearing for the petitioner and also Mr. B.B.Nazary, learned counsel appearing for the respondents. 2. In the revision petition filed by the petitioner against the order dated 14- 5-2013 passed by the District Council Court, Khasi Hills District in MCA No. 5 of 2013, the Presiding Officer himself had been impleaded as party and some allegations had also been made against the Senior counsel i.e. Mr. H.S.Thangkhiew, who was appearing in another case not actually related with this case in the amongst other grounds for filing revision petition – which read as follows: “(i) For that the Respondent No.3 failed to appreciate that having engaged Mr. H.S.Thangkhiew, Learned Senior Advocate as his Counsel it was incumbent on his part to recues himself from all proceedings where Mr. H.S.Thangkhiew had appeared for either parties as he once having engaged the Learned Senior Advocate as his Counsel it was but natural for him to be bias and that being the case the Respondent No.3 by not recusing himself and proceeding to dismiss the Appeal has acted with patent malafide and against all judicial norms and judicial propriety. As such the impugned Order dated 14.5.13 being perverse to be quashed and set aside. liable is (ii) For that the Respondent No.3 failed to appreciate the settled position of law that non-observance of the Principal of Natural Justice vitiate any proceeding more particularly if it is a legal proceeding before a Court of Law and the only reasonable likelihood of bias is good enough for drawing 2 an the inference of non-observance of Principle of Natural Justice Nemo debet esse judex in propria causa in the instant case. The Respondent No.3 having engaged the Learned Senior Advocate as his Counsel it is but apparent that he was acting on the bases of the advice given by the Learned Senior Advocate and as such propriety demanded that the Respondent No.3 recuse himself from all Mr. H.S.Thangkhiew had appeared at any point of time or represented either of the parties. As such the impugned Order dated 14.5.13 being bad in law is liable to be quashed and set aside.” proceedings where the 3. Shri H.S.Thangkhiew, Senior Advocate had been asked to file his affidavit in reply to the allegations made in the revision petition; and accordingly filed his affidavit. The para No. 5 of the affidavit read as follows: “5. That deponent states that only because the deponent at one point of time appeared for the Judge, District Council Court before the High Court, it does not operate as a bar for the Judge, District Council Court to take up any matter where the deponent is or was one of the counsels that too not before the same Court but before the Hon’ble High Court. This also does not operate as a bar for the deponent to appear before the Judge, District Council Court, especially when the subject matter of the case is entirely different and the case in hand is not even remotely connected to the case in which the deponent appeared for the Judge, District Council Court.” 4. This Court is not happy with this type of pleadings of the revision petition mentioning the names of the Presiding Officer as well as the Senior counsel unnecessarily. 5. This Court has given anxious consideration of the revision petition and impugned order dated 14-5-2013. It is fairly well settled law that: 3 (i) “Order passed by subordinate court can be interfered in revision whenever a subordinate court goes wrong in law on the vital question either by breach of some provisions of law or by committing material defects in procedure which has resulted in manifest injustice, it goes outside the jurisdiction conferred on it, and its decision can be interfered with under Section 115 for lack of jurisdiction, irrespective of the question as to whether such an order was passed by the subordinate court in exercise of discretion under Section 151.” (Oil & Natural Gas Commission, Nazira Vs. Ganesh Prasad Singh & Ors: AIR 1983 Gauhati 8 (D.B). (ii) “While exercising the jurisdiction under Section 115 of the CPC, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The words “illegality” and “with materials irregularity” as used in Clause (c) do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors whether of fact or of law, after the prescribed formalities have been complied with.” (M/s D.L.F. Housing and Construction Co. (P) Ltd. Vs. Sarup Singh & Ors: AIR 1971 SC 2324). (iii) “The revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is 4 found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under Section 115 of the CPC to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the dispute itself.” (Sher Singh (dead) through LRs Vs. Joint Director of Consolidation & Ors: AIR 1978 SC 1341). (iv) “A distinction between the appellate and the revisional jurisdictions of the Courts was a real one. The right to appeal carries with it the right of rehearing both on questions of law and fact, unless the statute conferring the right to appeal itself limits the rehearing in some way, while the power to hear a revision is generally given to a particular case is decided according to law. Under Section 115 of the CPC, yet its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision under challenge before it is according to law. The High Court cannot substitute its own findings on a question of fact for findings recorded by the Courts below on reappraisal of evidence.” (Patel Valmik Himatlal & Ors Vs. Patel Mohanlal Muljibhai (dead) through LRs: AIR 1998 SC 3325). 6. This court is of the considered view that there is no material calling the interference of this Court to the impugned order dated 14-5-2013 by invoking revisional power; and this revision petition is dismissed. S.Rynjah CHIEF JUSTICE (ACTING) 5