Meghalaya High Court
Acting Syiem Of Hima Mylliem vs . Bidington Kharir on 28 January, 2020
Bench: Mohammad Rafiq, W. Diengdoh
Serial No.01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
CRP No.19/2019
Date of Order: 28.01.2020
Acting Syiem of Hima Mylliem Vs. Bidington Kharir
Coram:
Hon'ble Mr. Justice Mohammad Rafiq, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. L Khyriem, Adv
For the Respondent(s) : Mr. B Bhattacharjee, Adv
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Per Mohammad Rafiq, 'CJ'
1. This Civil Revision Application has been filed by the petitioner/defendant under Rule 6 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954 read with Article 227 of the Constitution of India, praying for quashing and setting aside the impugned order dated 04.09.2018 passed in Misc. Case No.24 of 2018 and order dated 06.05.2019 passed in Title Suit No.3 of 2018, by the Judge District Council Court, Shillong.
2. The facts of the case in brief are that the respondent/plaintiff had instituted a Title Suit No.3 of 2018 before the Judge, District Council Court, Shillong against the petitioner, praying for declaration and permanent injunction, along with an application for interim injunction. The Judge, District Council Court, Shillong vide order dated 04.09.2018 granted 1 ad interim injunction in favour of the respondent, restraining the petitioner from terminating the Lease Deed dated 11.09.2017 and further restraining the petitioner from disturbing and interfering with the peaceful collection of daily tolls by the respondent at Iewduh. The petitioner/defendant on appearing before the learned court below, filed written statement as well as reply to the application under Order 39 Rule 4 Code of Civil Procedure [CPC], with the prayer for vacating and setting aside the ex-parte injunction order dated 04.09.2018. The respondent/plaintiff filed his reply to the aforesaid application. The learned court below vide order 03.10.2018 allowed the application by setting aside the ex-parte injunction order dated 04.09.2018. Aggrieved thereby, the respondent/plaintiff preferred a Civil Revision Petition before this Court. On hearing the parties, this Court vide order dated 13.11.2018 set aside the order dated 03.10.2018 and directed the court below to first frame the issues and decide by a speaking order whether or not it has the jurisdiction and who should be the necessary party. It was thereafter that the learned court below vide order dated 12.02.2019 has framed as many as 10 (ten) issues.
3. The petitioner/defendant on 20.03.2019 filed an application, under Order 7 Rule 11(d) read with Section 151 CPC, praying for preliminary hearing on maintainability of the suit, and deciding issues No.(i), (ii) and
(iii) with regard to (i) whether the suit is maintainable; (ii) whether the suit is bad for non-rejoinder of necessary parties and; (iii) whether the court has got jurisdiction to try the suit. On hearing the arguments, the learned court below vide order dated 06.05.2019 dismissed that application. It was 2 thereafter that the petitioner/defendant has approached this Court by means of the present Civil Revision Petition to challenge the aforesaid two orders dated 04.09.2018 and 06.05.2019.
4. When the matter was argued on 27.09.2019 before the Single Bench, learned counsel for the respondent cited the judgment in Ka Drosila Dkhar v. Village Committee, Demthring Jowai Dolloiship, Jaintia Hills District & ors passed in Civil Revision Petition No.12(SH) of 2005, delivered by a learned Single Judge of the Gauhati High Court, Shillong Bench (as it then was) on the scope of Clause 6 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954 [for short "Assam High Court Order"] which is now High Court of Meghalaya (Jurisdiction over District Council Courts) Order, 2014 [for short Meghalaya High Court Order"]. The learned Single Judge doubting correctness of the view expressing in that judgment has opined that interpretation, scope and ambit of Clause 6 needs further examination and directed that this matter be laid before the Chief Justice on the administrative side for consideration to place the same before the Larger Bench. This is how the matter has come up before us in the Division Bench.
5. We have heard Mr. L Khyriem, learned counsel for the petitioner and Mr. B Bhattacharjee, learned counsel for the respondent.
6. Mr. L Khyriem, learned counsel for the petitioner/defendant argued that the learned court below while passing the impugned order dated 06.05.2019 has come to an erroneous and perverse finding that the issue involves both question of law and fact, whereas, it is purely question of law. 3 The learned court below vide order dated 03.10.2018 while allowing the application under Order 39 Rule 4 CPC has vacated the injunction order dated 04.09.2018 based on the letter/notification dated 31.08.2018 issued by the Khasi Hills Autonomous District Council, Shillong [KHADC]. It came to the conclusion that the KHADC is a necessary party and the court has no jurisdiction to try the suit in its absence. It is argued that the learned court below lacks jurisdiction and has acted beyond jurisdiction inasmuch as the court below is an Appellate Court as per Rules 28 and 29 of the Administration of Justice Rules, 1953 [for short "the Rules of 1953"] and not the court of the least competent jurisdiction to entertain the suit which, as per Rule 18 of the Rules of 1953, is the court of Subordinate District Council Court. The impugned order dated 04.09.2018 passed by the learned court below is without jurisdiction.
7. Learned counsel for the petitioner/defendant has heavily relied upon the decision of the Gauhati High Court in Ka Idis Mary Kharkongor v. Ka Theirit Lyngdoh,ALR 1969 Assam & Nagaland 92, to argue that the Full Bench in that decision has interpreted Order 6 of the Assam High Court Order and has categorically held that the jurisdictional power of the High Court will not be governed by any spirit of the provisions laid down under Section 115 CPC. The High Court of Meghalaya, while exercising revisional powers under Clause 6 of the Meghalaya High Court Order, has very wide powers, therefore, it will be entitled to go into the facts like an Appellate Court. Learned counsel therefore argued that the learned Single Judge of the Gauhati High Court, Shillong Bench, in Ka Drosila Dkhar 4 (supra), has erred in law by not following that binding precedent. Learned counsel in support of his arguments has relied upon the following judgments:-
(i) Waryam Singh & anr v. Amarnath & anr: AIR 1954 SC 215;
(ii) A. Venkatasubbiah Naidu v. S. Chellappan & ors: (2000) 7 SCC 695;
(iii) Ouseph Mathai & ors v. M. Abdul Khadir: (2002) 1 SCC 319;
(iv) Surya Dev Rai v. Ram Chander Rai & anr: (2003) 6 SCC 675;
(v) Shail (Smt) v. Manoj Kumar & ors: (2004) 4 SCC 785;
(vi) Shalini Shyam Shetty & anr v. Rajendra Shankar Patil:
(2010) 8 SCC 329;
(vii) Sameer Suresh Gupta through PA holder v. Rahul Kumar Agarwal: (2013) 9 SCC 374;
(viii) Westarly Dkhar & ors v. Sehekaya Lyngdoh: (2015) 4 SCC 292 and;
(ix) Radhey Shyam & anr v. Chhabi & ors: (2015) 5 SCC 423;
8. Per contra, Mr. B Bhattacharjee,learned counsel for the respondent/plaintiff submitted that the judgment of learned Single Judge of the predecessor Court of this High Court rendered in Ka Drosila Dkhar (supra), was binding on the learned Single Judge in the present case. Clause 6 of the Meghalaya High Court Order must be construed in conformity therewith. Appellate powers and revisional powers are required to be exercised on different considerations. There has to be a distinction between the two. While appellate jurisdiction is wider in nature where the court can even re-appreciate the evidence so as to arrive at a different finding on the same material than the one recorded by the court of original jurisdiction, 5 but in the scope of revision, the court can only correct jurisdictional errors. Learned counsel also submitted that the learned Single Judge in Ka Drosila Dkhar (supra) has rightly interpreted Clause 6 of the Assam High Court Order on the scope of interference under revisional jurisdiction. It was rightly held that the revisional power in Clause 6 of the Assam High Court Order must be exercised on parameters applicable to revisional power under Section 115 CPC and that the High Court while exercising revisional powers under Clause 6 cannot go into the facts like an appellate court so as to re-appreciate the evidence. Learned counsel in support of his arguments has relied on the following judgments of the Apex Court:-
(i) Shalini Shyam Shetty & anr v. Rajendra Shankar Patil:
(2010) 8 SCC 329;
(ii) Bandaru Satyanarayana v. Imandi Anasuya & ors: (2011) 12 SCC 650;
(iii) Radhey Shyam & anr v. Chhabi & ors: (2015) 5 SCC 423;
(iv) State of Kerela v. K.M. Charia Abdulla: AIR 1965 SC 1585 and;
(v) Shyam Sunder Agarwal & Co. v. Union of India: (1996) 2 SCC 132.
9. We have given our anxious consideration to rival submissions and perused the material placed on record. The learned Single Judge in Ka Drosila Dkhar (supra) interpreted Clause 6 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954 which is para materia with Clause 6 of the High Court of Meghalaya (Jurisdiction over District Council Courts) Order, 2014. In order to correctly appreciate the 6 controversy, we deem it appropriate to reproduce Clause 6 of the Assam High Court Order, which is as under:-
"6. The High Court may, on application or otherwise, call for the proceedings of any civil or criminal case decided by pending in any court in the autonomous district constituted under the provisions of sub-paragraphs (1) and (2) of paragraph 4 of the Sixth Schedule to the Constitution (hereinafter called the court of District Council) and passed such orders as it may deem fit."
10. The scope of revisional powers of the High Court under Rule 36 of the Administration of Justice and Police Rules in Khasi & Jaintia Hills and Clause 6 of the Assam High Court Order was discussed by the Full Bench of Gauhati High Court in Ka Idis Mary Kharkongor (supra). Relevant observations in paras 9 and 10 of the judgment of the Full Bench read as under:-
"9. The question of deciding a matter according to the spirit of the provisions of the Criminal Code Procedure Code or the Civil Procedure Code can arise only when there is no provision in the rules in the matter. In this particular case rule 36 of the Rules and Order 6 of the Orders provide for revision without any restriction. Therefore, the matter of deciding the scope of jurisdictional power of the High Court under the above rule or order will not be governed by any spirit of the provisions for revision laid down in the Codes. I, am, therefore, of the view that in the matter of revision under Rule 36 the High Court has very wide power. There is no reason to make a distinction between revisional powers of the High Court in criminal matters and in Civil matters respectively. The High Court while exercising revisional powers, will be entitled to go into facts like an appellate court."
10. .... Under this rule the revising authority may pass any order as it may deem fit. It this be so, there is no reason why the revising authority should not be competent to re-appreciate the evidence and pass an order setting aside the appreciation made by the lower authority."
11. Learned Single Judge in ka Drosila Dkhar (supra), despite noticing the aforesaid Full Bench judgment, did not follow ratio of the same 7 because he relied on the subsequent decision of the Apex Court in Shyam Sunder Agarwal (supra).
12. Rule 36A which came up for consideration before the Supreme Court in Shyam Sunder Agarwal (supra) reads as under:-
"36A. Appeal and 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 may deem fit.
The Deputy Commissioner shall be a court of appeal from a decision of an Assistant. The High Court shall be a court of appeal from an original decision of the Deputy Commissioner if the value of the suit be rupees five hundred or over, or if the suit involves a question of tribal right or customs, or of right to, or possession of, immovable property."
13. In our considered opinion, the learned Single Judge in Ka Drosila Dkhar (supra) after comparing the provision of Clause 6 of the Assam High Court Order with Rule 36-A of the Administration of Justice and Police in Khasi & Jaintia Hills Rules, 1937 [for short "Rules of 1937"], rightly held that both the provisions are in para materia. Comparison of Clause 6 of the Assam High Court Order and Rule 36-A of the Rules of 1937 with Clause 6 of the High Court of Meghalaya (Jurisdiction over District Council Courts) Order, 2014 shows that all the three provisions are indeed identically worded. The judgment of the Supreme Court in Shyam Sunder Agarwal (supra) was rendered in the context of Rule 36-A of the Rules of 1937 which is analogous to Clause 6 of the Assam High Court Order. It was therefore rightly held that revisional powers under Clause 6 of the Assam High Court Order must be exercised in conformity with the revisional powers under Section 115 CPC.
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14. On perusal of the judgment of the Supreme Court in Shyam Sunder Agarwal (supra), it is noticed that Rule 36 of the Rules of 1937 came up for consideration before the Supreme Court in an appeal against the judgment of the Division Bench of the Gauhati High Court on a reference by a Single Bench of that Court. A learned Single Judge of the Gauhati High Court disagreeing with an earlier decision of another Single Bench of that High Court in Union of India Vs. D.S. Narula & Company, 1991 GLJ 400 (GAU), that no revision lies against the appellate judgment passed in an appeal under Section 39 of the Arbitration Act, referred the revision case to Division Bench for deciding the maintainability of the revision petition filed under Rule 36A of the Rules of 1937 for the Administration of Justice and Police in Khasi and Jaintia Hills, against an appellate order passed by the Additional Deputy Commissioner, East Khasi, Shillong, arising out of order passed by Assistant to the Deputy Commissioner at Shillong, rejecting the objections made under Section 30 of the Arbitration Act and making the award in question, a rule of court. Division Bench held that second appeal from appellate judgment and order has been expressly barred under Section 39 of the Arbitration Act. It further held that there is no provision in the Arbitration Act, which puts an embargo on the revisional jurisdiction of the High Court against the appellate order. Though there is no provision in the Arbitration Act conferring revisional jurisdiction of the High Court against an appellate order but the 'Court' has been defined under Section 2(c) of the Arbitration Act. The proceedings before the appellate court under Section 39 of the 9 Arbitration Act are judicial proceedings and the Judge exercises power under Section 39 of the Arbitration Act as judicial officer. Section 115 CPC confers revisional power on the High Court in respect of the decision of a court subordinate to it, if no appeal lies against such decision of the subordinate court, provided any of the three clauses under Section 115 CPC is fulfilled. The Division Bench thus answered the reference in favour of maintainability of the revision application before the Gauhati High Court holding that contrary view expressed by the Single Bench in D.S. Narula(supra) was incorrect. It was in the context of those facts that the Supreme Court in paras 24, 25 and 26 of the report in Shyam Sunder Agarwal (supra), held as under:-
"24. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that the Assistant to the Deputy Commissioner, Shillong and the Deputy Commissioner, Shillong have been clothed with the jurisdiction to act as civil courts in some parts of Meghalaya. Under the Meghalaya Act No.6 of 1972, the Rules have been made applicable to the whole of United Khasi Hills District and Janitia Hills District. The appellant, therefore, filed the arbitration award in the Court of the Assistant to the Deputy Commissioner and obtained the order making the award a rule of Court. The respondent Union of India also preferred appeal under Section 39 of the Arbitration Act before the Deputy Commissioner accepting it as appellate civil court. It has already been indicated that no material has been placed before us to show that the Assistant to the Deputy Commissioner or the Deputy Commissioner have not been clothed with powers of Civil Court for decision of Civil disputes in general within the territorial limits but they have been empowered to decide only a special category of civil disputes confined to particular tribal people. In the aforesaid circumstances, such appellate order having been passed by a civil court, constituted under a special statute, subordinate to the High Court, the High Court does not cease to have revisional jurisdiction under Section 115 of the Code of Civil Procedure.10
25. The appellant Union of India filed a revisional application under Rule 36-A before the Single Bench of the High Court because against an appellate order of Deputy Commissioner, no appeal is provided for under the Rules. Even if there was any provision for filing an appeal from such appellate order of the Deputy Commissioner under the Rules, such second appeal, being expressly barred by Section 39 (2) of the Arbitration Act, would have been incompetent. In the facts and circumstances of the case, revision application under Rule 36-A is to be considered in conformity with Section 115 of the Code of Civil Procedure. Such limited application of revisional jurisdiction under Rule 36-A in assailing an appellate order under Section 39 of the Arbitration Act is to be read, otherwise revisional power under Rule 36-A will give occasion to hostile discrimination. For example, in the State of Meghalaya where the Rules are not applicable, a litigant can only move the High Court in its revisional jurisdiction under Section 115 of the Code of Civil Procedure against an appellate order under Section 39 of the Arbitration Act but another litigant where the Rules are applicable, will avail of larger rights in exercise of revisional power by the High Court under Rule 36-A against a similar appellate order under Section 39 of the Arbitration Act. Such a situation is not permissible. Revisional power under Rule 36-A of the High Court in such case therefore, must be exercised in conformity with the revisional power under Section 115 of the Code of Civil Procedure.
26. In our view, a revisional application before the High Court against an appellate order passed under Section 39 of the Arbitration Act is maintainable. There is no express provision in the Arbitration Act putting an embargo against filing a revisional application against appellate order under Section 39 of the Act. The Arbitration Act has put an embargo on filing any second appeal from appellate order under Section 39 of the Act. The Arbitration Act is a special statute having limited application relating to matters governed by the said Act. Such special statute, therefore, must have its application as provided for in the said statute. The revisional jurisdiction of the High Court under the Code or under any other statute therefore shall not stand superseded under the Arbitration Act if the Act does not contain any express bar against exercise of revisional power by the High Court provided exercise of such revisional power does not mitigate against giving effect to the provisions of the Arbitration Act."
15. Even though decision of the Full Bench of the Gauhati High Court in Ka Idis Mary Kharkongor (supra) was not brought to the notice of the Supreme Court in Shyam Sunder Agarwal (supra), but the Supreme Court 11 in Shyam Sunder Agarwal (supra) has considered the scope of Rule 36-A of the Rules of 1937, which is analogous to and in para materia with Clause 6 of the Assam High Court Order, 1954, which was interpreted by the Full Bench of the Gauhati High Court in Ka Idis Mary Kharkongor (supra). The judgment of the Full Bench should therefore be taken to have been impliedly overruled by judgment of the Supreme Court in Shyam Sunder Agarwal (supra). Consequently, it must be held that the judgment of the learned Single Judge in Ka Drosila Dkhar (supra) has been correctly decided.
16. It is trite that the appellate powers and revisional powers cannot be equated as the two are founded on different parameters. We may in this connection refer to the following observations of the Supreme Court in para 5 of the report in K.M. Charia Abdulla (supra):-
"5. ..... When the Legislature confers a right of appeal in one case and a discretionary remedy of revision in another, it must be deemed to have created two jurisdictions different in scope and content. When it introduced the familiar concepts of appeal and revision, it is also reasonable to assume that the well-known distinction between these two jurisdictions was also accepted by the legislature. There is an essential distinction between an appeal and a revision. The distinction is based on differences implicit in the said two expressions. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision. Section 12 (2) is no doubt wider in scope than s. 115 of the Code of Civil Procedure. Even so the revisional authority's jurisdiction is confined to the question of legality or propriety of the order or the regularity of the proceedings. The further limitation on that jurisdiction is that it can only exercise the same on the examination of the record of any order passed or 12 proceedings taken by any authority. The section, therefore, not only limits the scope of its jurisdiction but also defines the material on the basis of which the said jurisdiction is exercised. The general expression that the authority "may pass such order as he thinks fit" must necessarily be confined to the scope of the jurisdiction. The revisional authority, therefore, cannot travel beyond the order passed or proceedings recorded by the inferior authority and make fresh enquiry and pass orders on merits on the basis of the said enquiry. If it is not construed in this manner, the distinction between appeal and revision would be effaced."
17. Clause 6 of the Meghalaya High Court Order, provides for remedy of revision only but it does confer on the High Court power of both appellate court and revisional court. It is trite that power of the High Court while dealing with an appeal as well as revision petition emanates from two different clauses and they operate in different spheres. Conceptually revisional jurisdiction is a part of appellate jurisdiction but it is not vice versa. Both appellate jurisdiction and revisional jurisdiction are the creatures of statues. An appeal is continuation of suit or original proceedings. Therefore, the power of the appellate court is coextensive with that of the trial court, but it is not so in the case of Revision Petition. Appellate jurisdiction involves rehearing on facts and law but revisional jurisdiction, except to the extent of additional powers conferred by the statute, is confined to merely correcting jurisdictional errors and therefore cannot be equated with that of a full-fledged appeal. However, the appellate court has the jurisdiction to re-appreciate the entire evidence to arrive at different finding than the one recorded by the court below on the same evidence. Revisional jurisdiction can be invoked by the Court suo motu if so permitted or at the instant of the aggrieved parties. The very expression 13 "revisional" conveys the idea of much narrower jurisdiction than the "appeal" which is a larger jurisdiction. It is for this reason that the use of two expressions differ in their content and meaning. Clearly, revisional power is subject to restrictions and limitations attached thereto. Unless relevant statute specifically confers on the revisional authority the power to re-appreciate the evidence, it cannot do so as its powers is merely confined to correcting jurisdictional errors and examining legality, regularity and propriety, of the order impugned.
18. In view of the above discussions and in the light of the ratio of Shyam Sunder Agarwal (supra), we are inclined to hold that the learned Single Judge of this Court has correctly decided the case in Ka Drosila Dkhar (supra). Reference is accordingly answered. The matter may now be placed before the Single Bench for appropriate orders.
(W. Diengdoh) (Mohammad Rafiq)
Judge Chief Justice
Meghalaya
28.01.2020
"Lam AR-PS"
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