The High Court
Case Details
THE HIGH COURT OF MEGHALAYA CRP[SH]1/2010 Smt. Juliana Kharshiing C/o Wai-Ki-Ki, Motphran, Mission Compound, Shillong. Meghalaya – 793 002 -versus- Smt. Mistidora Khongsit R/o Pohkseh, Shillong East Khasi Hills District, Meghalaya. …..Petitioner …..Respondent THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH BEFORE Advocate for the appellant Advocate for the respondents Date of hearing Date of Judgment - - - -
Legal Reasoning
Mr. S. Wahlang, Adv Mr. T. Kharir, Adv. Dr. ODV Ladia, Adv Mr. P. Yobin, ADv 7-6-2013 7-6-2013 JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) Heard Mr. S, Wahlang, learned counsel appearing for the petitioner and Dr. ODV Ladia, learned counsel appearing for the respondent. 2. This revision petition is directed against the Judgment and Order dated 19-11-2009 passed by the learned Judge, District Council Court for dismissing the Misc. appeal No. 1/2009. 3. A short fact sufficient for deciding the present revision petition is noted. The respondent/plaintiff filed the Ejectment Suit No. 1/2003 and renumbered as Ejectment suit No. 1/2005 in the Court of the Subordinate District Council Court, Shillong for evicting the petitioner/defendant from the shop called “Wai-ki-ki” situated at Bara Bazar area within the jurisdiction of the District Council, Shillong. 4. The said Ejectment Suit was dismissed for de-fault vide Order dated 4-7- 2008 passed by the Subordinate District Council Court, Shillong. The learned counsel appearing for the respondent/plaintiff filed an application for setting aside the said order of the Subordinate District Council Court, Shillong dated 4-7-2008 for dismissing the said Ejectment Suit for de-fault and restore the suit. The said application filed by the learned counsel for the respondent/plaintiff is available at annexure 3 to the memo of the present revision petition. The said application for restoration dated 11-7-2008 was verified by the learned counsel who filed the application. 5. The said application for restoration is not supported by an affidavit of the learned counsel who filed the application. The learned Subordinate District Council Court, Shillong after hearing the parties, set aside the said order dated 4- 7-2008 and restored the Ejectment Suit vide order dated 3-6-2009. 6. The petitioner/defendant being aggrieved by the said order of the Subordinate District Council Court, Shillong dated 3-6-2009 filed an appeal being Civil Appeal No. 1/2009 in the Court of the Judge, District Council Court, Shillong. The only ground for filing the said appeal against the said order of the Subordinate District Council Court, Shillong dated 3-6-2009 is that the said application filed by the learned counsel for the respondent/plaintiff (annexure 3) is not supported by an affidavit of the learned counsel who filed the application for restoration, and therefore the application is not maintainable. 7. The learned first appellate court i.e. the Judge, District Council Court for the reasons mentioned in the Impugned Judgment and Order dated 19-11-2009 had dismissed the appeal i.e. Misc. Civil Appeal No. 1/2009. The learned Judge, District Council Court in the Impugned Judgment and order dated 19-11-2009 made a clear finding that: 2 “……………………Further, I find that Rule 13 of Chapter IV of the Gauhati High Court Rules is not meant for trial of suits and cases before the Courts of the District Council but it prescribe the procedure for filing of application, appeal, revision, etc. before the Hon’ble High Court. I also find that I cannot disagree with the contention of the learned counsel for the respondent that it is settled law that technicality or procedural lapses if any should not come the suit. ………………………..” the way of ensuring trial fair in in 8. It is an admitted case of both the parties that the suit shop of the said Ejectment Suit No. 1/2005 is situated within the jurisdiction of the District Council, Shillong. The “United Khasi and Jaintia Hills Autonomous District (Administration of Justice) Rules 1953” extend to the whole areas of the autonomous District Council. Rule 47 of the District Council Rules 1953 provide that in the civil cases, the procedure of the District Council Court, the Subordinate District Council Court or the Additional Subordinate District Council Court shall be guided by the spirit and not bound by the letter of the Code of Civil Procedure 1908. For easy reference, Rule 47 is quoted hereunder: “47. Procedure in Civil Cases: In civil cases, the Procedure of the District Council Court or the Subordinate District Council Courts or 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, in all matters not covered by recognized customary laws or usages of the District.” 9. On perusal of Rule 47 of the District Council Rule 1953, it is clear that in civil cases, the procedure of the District Council Courts shall be guided by the spirit and not bound by the letter of the Code of Civil Procedure. As such the procedure of the said Ejectment Suit No. 1/2005 shall be guided by the spirit and not by the letter of the code of civil procedure. In other words, the Code of Civil Procedure are not to be followed in the procedure of the said Ejectment Suit in strict vigour. 10. The Gauhati High Court framed the Rule called “Civil Court Rules and Order of Gauhati High Court.” Part 1 of the said rules framed by the Gauhati High 3 Court clearly provides the rules relating to Civil Procedure Code. Relevant portion of Part 1 of Rule 16 of the said rules is reproduced hereunder: RULES RELATING TO THE CIVL PROCEDURE CODE “PART – I “16. All petitions requiring judicial investigation or determination unless filed with an affidavit in support thereof should be verified in the manner prescribed by Order 6, Rule 15.” 11. While reading the Rule 16 of the said Gauhati High Court Rules, in the context of a case, one has to see if it is a case within the areas where the C.P.C is extended only in spirit or the C.P.C is fully extended. As stated above, Rule No.16 clearly provides the rules relating to the cases where Civil Procedure Code is fully extended. In the instant case, shop suit is situated within the council area where the District Council Rules 1953 is extended. 12. Rule 4 of the District Council Rules 1953 provides the constitution of the Courts in the council area. Under Rule 4 of the District Council Rules 1953, there are three classes of Courts viz., (i) Village Courts, (ii) Subordinate District Council Courts and Addl. Subordinate District Council Courts and (iii) District Council Courts. As stated above, the said Ejectment Suit was filed before the Subordinate District Council Court for the ejectment of the petitioner/defendant from the shop suit which is admittedly located within the area of the District Council. 13. This being the position, the C.P.C is to be followed only in spirit in the proceeding of the said Ejectment Suit. This revision petition is arising out of the said order passed by the learned Judge, Subordinate District Council Court, Shillong. The District Council Court in civil cases has to follow the C.P.C only in spirit and not bound by the letter of the C.P.C. 14. The power of this court under section 115 of the C.P.C could be exercised only when the Court below had (a) fail to have exercised the jurisdiction or (b) have acted and exercised the jurisdiction illegally. This Court has given anxious consideration to the impugned Judgment and Order of the Judge, District Council 4 Court dated 19-11-2009 and is of the view that there is no material for interfering with the impugned Judgment and Order dated 19-11-2009. This Court is also in complete agreement with the reasons given by the learned Judge, District Council Court, which had been quoted above, in the impugned Judgment and Order dated 19-11-2009. 15.
Decision
For the foregoing reasons, this revision petition is dismissed. S.Rynjah JUDGE 5