Meghalaya High Court
Smti. Nandita Das And Anr vs Mrs. Patrisha Sympli on 13 December, 2013
Author: Sr Sen
Bench: Sr Sen
IN THE HIGH COURT OF MEGHALAYA
CRP No. 52 of 2013
1. Smti. Nandita Das,
Widow of (Late) Bijit Lal Das
2. Dr. Srikanta Das,
Wife of Dr. Sanjay Das and
Daughter of (Late) Bijit Lal Das,
Both are residing at 21, New Park,
Brahmapur, Police Station Regent Park,
Bansdroni, Kolkata-700 070 and also of
'Lal Villa', Laitumkhrah, Shillong-3,
Meghalaya.
......Petitioners
- versus -
1. Mrs. Patrisha Sympli,
Daughter of (Late) Bor Tlang,
Residing at Upland Road,
Police Station, Laitumkhrah,
Shillong, District East Khasi Hills.
...... Respondent
BEFORE THE HON'BLE MR JUSTICE SR SEN Advocate for the Petitioners : Mr. S Mukherjee Advocate for the Respondent : Mr. K Paul Date of Hearing : 06.12.2013 Date of Judgment and Order : 13.12.2013 JUDGMENT AND ORDER This instant Revision Petition is directed against the impugned Judgment & Order dated 13.08.13 passed in Misc. Case No. 201 (T) of 2012 arising out of title Suit No. 157 (T) of 2012.
2. The brief facts of the petitioner's case in nut shell are that, "the petitioners filed Title Suit No. 15 (T) of 2006 before the Learned Assistant to the Deputy Commissioner, Shillong against Binit Lal Das praying for declaration that they were co-owners of the suit property with the said Binit Lal Das and for permanent injunction restraining him from CRP No. 52 of 2013 Page 1 of 5 transferring it or any portion thereof. They also applied for and obtained temporary injunction restraining Binit Lal Das from transferring the suit property or any portion thereof. In appeal by Binit Lal Das, the said order of temporary injunction was affirmed by the learned Deputy Commissioner, Shillong on 16.05.2008, wherein the learned Deputy Commissioner observed that Binit Lal Das had no regard for the law because he disclosed that the suit property was sold to the opposite party in the meantime.
3. Receiving notice of caveat from the opposite party that she had purchased the suit property from Mrs. Prova Rani Das (who was Binit Lal Das's mother and who had no title thereto having settled the suit property in favour of the petitioners' predecessor and Binit Lal Das long ago) and being disturbed in their peaceful possession of the suit property by the opposite party's men, the petitioners filed Title Suit No. 13 (T) of 2007 before the learned Assistant to the Deputy Commissioner against the opposite party for declaration that they were co-owners of the suit property and that the opposite party had not title thereto and for permanent injunction restraining her from interfering with their peaceful possession thereof. They also applied for temporary injunction restraining the opposite party from interfering with the petitioners' peaceful possession of the suit property. With notice of and during the pendency of the petitioners' said application for temporary injunction, the opposite party criminally trespassed into a portion of the suit property and damaged it. Accordingly, the petitioners amended their plaint and application for temporary injunction, pleading the aforesaid subsequent facts and prayed for permanent and temporary mandatory injunction directing the opposite party to restore possession of the suit property to the petitioners. The learned Assistant to the Deputy Commissioner dismissed the petitioners' application for temporary mandatory injunction for the strange reason that the petitioners have themselves stated that, they have been CRP No. 52 of 2013 Page 2 of 5 dispossessed from the suit property by the opposite party. Hence this application on the grounds that the learned Assistant failed to apply the well settled principle that, if the defendant with notice of an application for temporary injunction restraining him from doing a particular act does that act or with notice of a suit commits an act to forestall the suit the courts grant temporary mandatory injunction directing the defendant to undo such act wholly irrespective of the merits as they may be ultimately decided."
4. Being aggrieved by the impugned Judgment & Order referred to above, the petitioners approached this Court by way of this instant revision petition under Rule-36-A of Administration of Justice and Police in Khasi & Jaintia Hills, 1937.
5. At the outset Mr. K Paul, the learned counsel for the respondent challenged the maintainability of this instant revision petition and argued that, petitioners cannot approach before the High Court by way of revision but may at best file an appeal. To support his submission the learned counsel relied on (1996) 2 SCC 132 reported in the case of Shyam Sunder Agarwal & Co. Vrs Union of India and 2007 (2) GLT 927 reported in the case of HN Bhorali vrs Lily Marbaniang.
6. On the other hand Mr. S Mukherjee, the learned counsel for the petitioners could not give any satisfactory and revertible answer to the question of maintainability.
7. Before coming to any conclusion, let me examine the Provision under 36-A of Administration of Justice and Police in Khasi & Jaintia Hills, 1937 which is reproduced herein below :
36-A. Appeal & Revision - The High Court or
the Deputy Commissioner may, on application or
otherwise, call for the proceedings of any case decided by
any officer subordinate to him and pass such orders as
he deem fit.
The Deputy Commissioner shall be a Court of
appeal from a decision of an Assistant. The High Court CRP No. 52 of 2013 Page 3 of 5 shall be a Court of appeal from an original decision of the Deputy Commissioner, if the value of the suit be Rs. 500 or over, or if the suit involves a question of tribal rights or customs, or of right to or possession of immovable property.
Provided that the petition of appeal accompanied by a copy of the order appealed against and by a clear statement of the grounds of appeal be filed within 30 days from the date of decision excluding the time required for obtaining a copy of the decision.
An appeal which lies to the High Court may be presented to the Deputy Commissioner, who shall, if it be in order and presented in due time endorse upon it the date of receipt and transit it with the records of the case to the High Court.
The decree of the appellant Court shall be transferred to the Court passing the original order for execution as a decree of its own."
8. On bare perusal of the Rule referred to above, it is understood that, from an order of the learned Assistant to the Deputy Commissioner is the Court of appeal and the High Court shall be the Court from the decision of the Deputy Commissioner. Since in this instant case, the impugned Judgment & Order has been passed by the learned Assistant to the Deputy Commissioner, it is understood that appeal shall lie before the Deputy Commissioner.
9. Therefore, I am of the considered view that the petitioners should have approached the Court of the Deputy Commissioner by way of an appeal instead of this instant revision in the High Court. I agree with the views given by the Single Bench of this High Court in the case of HN Bhorali vrs Lily Marbaniang, "It is now a settled law that the power of revision under Rule-36A of the Rules for Administration of Justice and Police in Khasi & Jaintia Hills, 1937 has to be exercised in conformity with the revisional powers provided under Section-115 of the Code of Civil Procedure and that the High Court in revision cannot enter into appreciation of facts like the appellate Court and further that the possibility of a different view on facts is not sufficient ground for interference." CRP No. 52 of 2013 Page 4 of 5
10. For the reasons as discussed above I find that, there is no force in the revision petition, hence it is dismissed on maintainability and the matter stands disposed of. However, the petitioner is at liberty to take necessary steps to redress their grievances before appropriate forum.
11. Registry is directed to return the Lower Court case record along with a copy of this Judgment & Order.
JUDGE V. Lyndem CRP No. 52 of 2013 Page 5 of 5