SHRI WESTARLY DKHAR vs. SHRI SEHEKAYA LYNGDOH

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. 1. Special leave granted. 2. The instant appeal by way of a Special Leave to Appeal has JUDGMENT 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. 1 Page 1 th On 30 September, 2009, an ad-interim ex-parte injunction was granted by the Subordinate District Council Court, in the following terms:

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.” th 4. By an order dated 29 October, 2009, the District Council Court JUDGMENT admitted an appeal against the said order and stayed it. By a further th order dated 9 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 th impugned order dated 27 April, 2012, the revision was allowed stating that since an appeal had been filed within 30 days of the ad- 2 Page 2 interim ex-parte order, it would not be maintainable under the Code of Civil Procedure and, therefore, the appellate order was set aside.

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 JUDGMENT 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. 3 Page 3 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

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.] JUDGMENT 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. 4 Page 4

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 JUDGMENT 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 5 Page 5

JUDGMENT 6 Page 6 observe the warrant procedure and in the circumstances he was observing the spirit of the Code.

JUDGMENT 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 7 Page 7

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. JUDGMENT 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 8 Page 8

JUDGMENT 9. In Longsan Khongngain v. State of Meghalaya, (2007) 4 GLT 938, a Division Bench of the Assam High Court stated: 9 Page 9

“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 JUDGMENT 10 Page 10

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 JUDGMENT 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 11 Page 11 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 JUDGMENT 12 Page 12

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. JUDGMENT 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 13 Page 13 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

th dated 27 April, 2012 of the High Court and restore the judgment th dated 9 March, 2010 of the District Council Court. ………………………………..J. (J. Chelameswar) ………………………………..J. (R.F. Nariman) New Delhi, January 28, 2015 JUDGMENT 14 Page 14