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1974 DIGILAW 3 (GAU)

Ka Krepe Sohlang and others v. Ka Kmensi Nonghlaw and another

1974-01-03

BAHARUL ISLAM

body1974
Judgement This appeal is directed against the order passed by the District Council Court, United Khasi and Jaintia Hills, Shillong, in Misc. Case No. 11 of 1970. The appeal is by the defendants. The plaintiffs brought a suit for declaration of title to and possession of the suit land. The defendants in turn set up their own title to the suit land. Both the parties examined their respective witnesses and the case was closed. Later on, one Shri D. E. Shallam, Advocate filed an application for examining certain witnesses on behalf of the plaintiffs. The learned Subordinate District Council Court, by its order dated 13-7-1970, rejected the application on the ground that Mr. Shallam, who filed the application, was not a lawyer engaged by the plaintiffs. The application was also not signed by any of the plaintiffs. The plaintiffs then filed an appeal before the District Council Court, who exercising its powers under Section 151. Civil P. C. allowed the appeal and remanded the case to the Subordinate District Council Court with a direction to allow the plaintiffs to examine witnesses as prayed for. 2. Shri A. S. Bhattacherjee, the learned counsel appearing for the respondents raises a preliminary objection. His submission on is that the impugned order passed by the District Council Court is under Section 151. Civil P. C. and therefore this appeal is not maintainable inasmuch as no appeal lies from an order passed under Section 151, Civil P. C. In reply, Shri B. S. Guha, learned counsel appearing for the appellants relies on R. 3 of the Assam High Court (Jurisdiction over the District Council Courts) Order, 1954. Rule 3 provides:"An appeal against a final order or decision of the District Council Courts in a civil suit where the valuation of the suit is Rs. 1,000 or more shall lie to the High Court." Admittedly the valuation of the present suit is Rs. 1,500/-. Rule 3 is wide in scope. Under it an appeal is provided against a final order or decision of the District Council Court. The order mentioned in Rule 3, in my opinion, means any order including an order passed under S. 151 of the Civil P. C. Therefore the appeal lies under Rule 3 and the preliminary objection of Shri Bhattacharjee has no substance. 3. Mr. Under it an appeal is provided against a final order or decision of the District Council Court. The order mentioned in Rule 3, in my opinion, means any order including an order passed under S. 151 of the Civil P. C. Therefore the appeal lies under Rule 3 and the preliminary objection of Shri Bhattacharjee has no substance. 3. Mr. Guha submits that the learned District Council Court erred in law in setting aside the order of the Subordinate District Council Court. His submission is that the application filed by Shri D. Shallam is a nullity inasmuch as he was not an Advocate engaged by the plaintiffs nor the application was signed by any of the plaintiffs and therefore the learned Subordinate District Council Court was perfectly justified in taking no notice of this paper which was no better than a scrap of paper. In my opinion, the submission made by Shri Guha has force. Up-till now the plaintiffs have not filed any affidavit stating that though Shri Sallam was not formally engaged as their lawyer by signing any Vakalatnama, in fact he was engaged to make the application. That being the position the application filed by Shri Sallam on behalf of the plaintiffs seeking permission to examine more witnesses was no legal application on which a Court could pass a judicial order. The order passed by the Subordinate District Council Court is a legally valid order and the order passed by the District Council Court setting aside that order is untenable. 4. In the result, the impugned order passed by the District Council Court is set aside. The appeal is allowed. There will however be no order as to costs. Appeal allowed.