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Thursday, January 29, 2015

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

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