Khotingsei, Chief v. Alembou — 1959 DIGILAW 38 (GAU)

JUDGMENT This is a second appeal against the judgment and decree of the learned District Judge, Manipur, in Civil Appeal No. 13 of 1957, by which he allowed in part, the appeal against the judgment of the S. D. O. at Tamenglong in Civil Case No. 21 of 1956 and dismissed the appeal in part. The defendant in the said suit was the appellant before the District Judge and he is the appellant in second appeal before me. 2. The respondent-plaintiff brought the suit before the S. D. O., Tamenglong claiming a sum of Rs. 300/- from the appellant-defendant as compensation. His case was that the appellant demolished the house of the respondent, measuring 25 x 15 at Tamu Khunou and he was therefore entitled to the compensation. Both the parties appeared before the S. D. O., Tamenglong on 22-12-56. The appellant appears to have orally stated his defence to the S. D. O. Under S. 39(3)(a) of the Manipur (Courts) Act, 1955, the appellant was entitled to make an oral statement of his defence instead of filing a written statement as Tamenglong was part of the Hill area of Manipur and the S. D. O. was bound to record the said defence. But the S. D. O. did not record the defence in the present case. He straightway proceeded to dispose of the suit without even taking any oral or documentary evidence. His judgment which was pronounced on the same day shows that the appellant admitted before him that he was convicted in a Criminal Court for the demolition of the said house and that he was liable to pay the compensation to the appellant. But it also shows that the appellant contended that the house measured only 18 x12 and not by 25x15 as alleged by the respondent and that he was therefore prepared to pay only Rs. 100/- as compensation. This defence amounted to a part admission of the respondents case, but the appellant did not admit that the respondent was entitled to Rs. 300/- as compensation. 3. 100/- as compensation. This defence amounted to a part admission of the respondents case, but the appellant did not admit that the respondent was entitled to Rs. 300/- as compensation. 3. What the S. D. O. had to do on such a plea by the appellant was to frame an issue in the case as to the amount of compensation to which the respondent was entitled to and to have given an opportunity to both parties to let in oral and documentary evidence in support of their respective cases and then to have given a finding on the issue as to the compensation to which the respondent was entitled. This procedure was not followed by the S. D. O. On the very day on which the parties appeared before him he proceeded to pass judgment in the case without framing any issue and without taking evidence as to the amount of compensation. In the judgment he mentioned the respondents case in paragraph 1, the appellants case in paragraph 2. In paragraph 3 he simply stated that considering the circumstances he was satisfied that the suit should be decreed at Rs. 200/- as compensation plus cost of Rs. 35/12/- in favour of the respondent. He did not state what the circumstances were which made him come to that conclusion. No separate decree was prepared or signed by him and the judgment was treated as a judgment-cum-decree and the decree amount as well as the amount of costs awarded were shown in the judgment itself. 4. It was on this judgment without a separate decree that an appeal was filed by the appellant before the District Judge. I am unable to understand how the appeal was entertained at all, without the production of the decree appealed against. Anyway, the Appellate Court proceeded to deal with the appeal without the decree. He held in the appeal that the respondent had not adduced any evidence to show what the value of the house demolished was, and that the S. D. O. was not justified in allowing a compensation of Rs. 200/-. But he accepted the statement of the S. D. O. in the judgment that the appellant had admitted the demolition and expressed his willingness to pay Rs. 100/- as compensation on account of the loss sustained by the respondent by the demolition. 200/-. But he accepted the statement of the S. D. O. in the judgment that the appellant had admitted the demolition and expressed his willingness to pay Rs. 100/- as compensation on account of the loss sustained by the respondent by the demolition. Though the defence was not formally recorded by the S. D. O. as required under S. 39(3)(a) of the Manipur (Courts) Act, the learned District Judge stated that he had no reason to think that the S. D. O. had not correctly recorded the defence in the judgment. So, in view of the admission by the appellant as contained in the judgment of the S. D. O., the learned District Judge held that the respondent was entitled to get Rs. 100/- as compensation from the appellant. In modification of the S. D. Os decision, the learned District Judge granted a decree for a sum of Rs. 100/- to the respondent and Rs. 20/-as costs of suit. It is against this decision of the District Judge that the present second appeal has been filed. 5. It was argued that the S. D. O. in trying the suit has not observed any of the rules contained in the Civil Procedure Code or in S. 39 of the Manipur (Courts) Act, that no evidence was recorded in the case, that there was no admission of any liability by the appellant, that the decision of the S. D. O. was quite arbitrary, that the learned District Judge having set aside the decision of the S. D. O. on the ground that it was not based on any evidence should not have used the judgment of the S. D. O. as evidence of any alleged admission by the appellant of the demolition of the house or of his agreement to pay Rs. 100/- as compensation and that the entire proceedings in the trial Court as well as in the Appellate Court were therefore vitiated and that the suit should be remanded for further trial. 6. I entirely agree with the appellants Advocate that the trial Court has totally failed to follow any of the provisions of the Civil Procedure Code or of S. 39 of the Manipur (Courts) Act in the proceedings in the suit. 6. I entirely agree with the appellants Advocate that the trial Court has totally failed to follow any of the provisions of the Civil Procedure Code or of S. 39 of the Manipur (Courts) Act in the proceedings in the suit. A perusal of the record in this case would show that the S. D. O. seemed to be under the impression that he was not guided by any procedural law in the matter of the trials of Civil Suits by him and that he could adopt a rough and ready method of disposal of the Civil Cases before him. The difficulty appears to be that the S. D. Os. of the Hill Courts are not legally qualified persons and are invested with the powers of Munsiff to deal with civil cases, which require at least a minimum amount of the knowledge of the Civil Procedure Code. If the S.D. Os. only take care to read S. 39 of the Manipur (Courts) Act, they will know their duties and responsibilities as Judges invested with Civil powers. Section 39(3) of the Act would show to them that the Civil Procedure Code would apply to all Civil Suits and proceedings before them subject only to the few exceptions as contained in clauses (a) to (d) therein. As mistakes are often found committed by the S. D. Os. and S. D. Cs. in dealing with civil cases, it is necessary to draw their attention to the essential requirements in the matter of the institution and trial of Civil Suits in their Courts. 7. When a suit is filed before them, the Courts in the Hill areas have first got to see whether the provisions of Orders I, II, VI and VII of the Civil Procedure Code have been complied with in filing the plaint. If they have not been complied with, the provisions contained in those Orders have to be followed and the plaints should be returned for rectifying the delects. It is necessary to draw the attention of the Hill Judges, especially, to Order 7 R. 11 Civil Procedure Code, which states in what cases the plaint shall be rejected. They have to see that proper Court Fees have been paid for the reliefs claimed as specifically mentioned in sub-rules (b) and (c) therein. 8. It is necessary to draw the attention of the Hill Judges, especially, to Order 7 R. 11 Civil Procedure Code, which states in what cases the plaint shall be rejected. They have to see that proper Court Fees have been paid for the reliefs claimed as specifically mentioned in sub-rules (b) and (c) therein. 8. Then summons have to be served on the defendant and the provisions of Order 5 Civil Procedure Code should be followed. When the defendant does not appear before him on service of summons, he has to follow the provisions of Or. 9 Civil Procedure Code. If he appears before the Court and wants to defend the suit, the Court cannot insist on his filing a written statement in writing under Or. 8 Civil Procedure Code, as S. 39(3)(a) of the Manipur (Courts) Act, allows a defendant to make an oral statement of his defence, which it will be the duty of the Court to record. 9. After the written statement has been so recorded, the Court must follow the provisions under Orders X to XIII Civil Procedure Code, if found necessary. If the defence as recorded by the Judges discloses that any material proposition of fact or law affirmed or denied in the plaint is denied or affirmed in the defence, the Court must proceed to settle issues for determination as provided under Order 14 Civil Procedure Code. This is very important as no relief can be given to a plaintiff until the matters in dispute between the parties which have been reduced to the form of issues are decided by the Court. The parties will be entitled to adduce oral and documentary evidence on the matters in issue between them. It is the duty of the Court to see on whom the burden of proof lies in respect of the issues framed by the Court. As to who shall lead evidence in respect of an issue will depend upon the burden of proof. 10. Under S. 39(3)(b) of the Manipur (Courts) Act, the Court cannot insist on the parties making interlocutory applications in writing as required under the Civil Procedure Code. They are entitled to make oral applications. Again, under S. 39(3)(d), it is not necessary to take down the oral evidence adduced by the parties in full. 10. Under S. 39(3)(b) of the Manipur (Courts) Act, the Court cannot insist on the parties making interlocutory applications in writing as required under the Civil Procedure Code. They are entitled to make oral applications. Again, under S. 39(3)(d), it is not necessary to take down the oral evidence adduced by the parties in full. It will be sufficient if a memorandum of the substance of the evidence is made by the Court. But it must be emphasized that the memorandum of the evidence shall be made by the Court as, under the Civil Procedure Code, the parties will be entitled to take the matter in appeal to higher courts and the higher courts will have to rely on such memorandum of evidence to see if the decision of the trial Court is correct or not. I am emphasizing this because it is found (as in the present case) that cases are disposed of arbitrarily without taking any evidence whatsoever merely on the first impression of the Judge on the pleadings. Such disposal will be against law, justice, equity and good conscience. 11. After the documentary and oral evidence are thus let in by the parties and they have been heard, the judgment is to be pronounced as provided in Or. 20 Civil Procedure Code. Attention is drawn specifically to Rule 5 of Order 20 which states that the Court shall state its finding or decision with reasons upon each separate issue in the judgment. On the judgment a decree shall follow (S. 33 Civil Procedure Code). The contents of the decree are mentioned in Rule 6 of Order 20 and the decree shall bear the same date as the judgment and shall be signed by the Judge (Rule 7 and Order 20). This is again very important as the appeal is provided under S. 96 of the Civil Procedure Code against the decree and not against the judgment. Execution can also be taken only of the decree. Thus if a separate decree is not prepared on the judgment pronounced by the Court the party who succeeds is deprived of the benefit of the judgment and the party who fails will not therefore very much cavil at it. 12. Execution can also be taken only of the decree. Thus if a separate decree is not prepared on the judgment pronounced by the Court the party who succeeds is deprived of the benefit of the judgment and the party who fails will not therefore very much cavil at it. 12. I have only given in brief the essential points relating to the procedure to be followed in the institution and trial of suits for the benefit of the Judges, in charge of Hill Courts. It will be better, if they study the Civil Procedure Code, the Evidence Act, and S. 39 of the Manipur (Courts) Act as also the provisions of the Court Fees Act. They must also study the rules framed by the Judicial Commissioner in 1956 for regulating the practice and procedure in all the Subrodinate Civil Courts in Manipur. 13. The above discussion will show that in this particular case the Hill Court of Tamenglong has not followed the procedure laid down in the Civil Procedure Code and in S. 39 of the Manipur (Courts) Act. The plaint filed in this case is itself not in proper form as required under Orders VI and VII Civil Procedure Code. As S. 39(3)(c) discourages the appearance of Pleaders, one cannot expect any proper standard of pleadings. We need not therefore very much cavil at it. But when the defendant appeared before the Court and stated his defence, it was the duty of the Court to have recorded the defence either in the order sheet itself or in a separate sheet of paper. This is very necessary, because it is only after the recording of such defence that the Court can decide whether any issues of fact or law arise for decision on the pleadings. If they arise the Court has to frame the necessary issues. In the case under discussion, the defence of the appellant as seen from the judgment would clearly show that he disputed at least the amount of compensation claimed in the plaint. An issue as to the amount of compensation to which the plaintiff was entitled ought to have been framed by the Court. Both parties ought to have been allowed to let in their oral and documentary evidence on the said issue. But no such procedure was adopted. It is a material irregularity which vitiated the entire trial of the case. An issue as to the amount of compensation to which the plaintiff was entitled ought to have been framed by the Court. Both parties ought to have been allowed to let in their oral and documentary evidence on the said issue. But no such procedure was adopted. It is a material irregularity which vitiated the entire trial of the case. The Court seemed to be under the impression that he could dispose of the case in a summary manner as soon as the defendant appeared in response to the summons. When a person files a suit for compensation for the loss sustained by him on account of the demolition of immoveable property by the defendant, the suit is certainly not one of a small cause nature and the decision of the Court is appealable. It was the Courts duty therefore to have recorded the defence and framed proper issues and given the necessary opportunity to both the parties to let in their evidence. Such a summary disposal of original civil suits is not proper and the decision of the Court in such a summary manner has to be set aside and the suit has to be remanded for trial in accordance with the law. 14. The decision of the District Judge in appeal cannot also be allowed to stand. In fact, the appeal was not properly presented at all before him, without a decree. There cannot be an appeal from a judgment alone. The learned District Judge seems to have lost sight of this fact in having entertained the appeal. The decision of the Appellate Court is also therefore set aside. 15. The suit is remanded to the S. D. O., Tamenglong. He will record the defence of the appellant as required under S. 39(3)(a) of the Manipur (Courts) Act and he will dispose of the suit in accordance with the provisions of the Civil Procedure Code and S. 39 of the Manipur (Courts) Act. The costs will abide the decision of the suit in the trial Court. The Court fee paid on this memorandum of appeal will be refunded. Suit remanded.