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1974 DIGILAW 39 (GAU)

Ka Pre Jaid Maram v. Ka Pren Jaid Nongphod

1974-08-06

BAHARUL ISLAM, M.C.PATHAK

body1974
Judgement PATHAK, C. J. :- The facts leading to this revision petition under Rule 6 of the Assam High Court (Jurisdiction Over District Council Courts) Order, 1954 are as follows : Ka Pren Jaid Nongphod, the plaintiff-opposite party, filed civil case before the Additional Subordinate District Council Court, Rambrai Syiemship and the case was numbered as Case No. 1 of 1965, Ka Pre Jaid Maram, the defendant-petitioner, contested the case. Both parties adduced evidence and the learned Subordinate District Council Court. Rambrai Syiemship, decreed the plaintiffs suit. Against the judgment and decree of the learned Additional Subordinate District Council Court, an appeal was preferred before the Judge. District Council Court, United Khasi and Jaintia Hills. The learned Judge District Council Court dismissed the appeal and upheld the decree of the learned Additional Subordinate District Council Court. 2. The present petition is directed against the judgment and decree of the learned Judge, District Council Court. 3. The revision petition was heard by this Court earlier and after hearing both the parties the case was remanded to the learned Judge District Council Court for a decision on the following issue : "Whether in the Rambrai Syiemship the Additional Subordinate District Council Court while trying a case within its jurisdiction shall consist of the Syiem and all the members or it may also consist of the Syiem and any one or more the members?" 4. After remand, the learned Judge District Council Court has given his finding on the above issue referred to him as follows: "In view of what had been observed above, and the evidence of the A. W. No. 4 that on the date fixed for the trial of cases if one or two members of the Court were ill and unable to attend Court, the Syiem can proceed on with the trial of the cases with other members of the Court present. So, it is evident that in Rambrai Syiemship the Syiem must try cases together with some of the members of the Court and not alone. This disposed of the above issue." 5. Mr. B. S. Guha, the learned Counsel appearing on behalf of the petitioner, challenges the above finding of the learned Judge, District Council Court on the issue referred to him, on the ground that the finding is not on the basis of the evidence adduced before the Judge, District Council Court. 6. This disposed of the above issue." 5. Mr. B. S. Guha, the learned Counsel appearing on behalf of the petitioner, challenges the above finding of the learned Judge, District Council Court on the issue referred to him, on the ground that the finding is not on the basis of the evidence adduced before the Judge, District Council Court. 6. We have read the evidence adduced by the party in the instant case and after having duly considered the same we come to the conclusion that the Additional Subordinate District Council Court, Rambrai Syiemship, consists of the Syiem and three Lyngdohs and two Myntries. From the evidence on record it also transpires that in trying a case the Syiem and all the five members should be present but the decision may be by the majority of the members. Since the duty of the Additional Subordinate District Council Court is to discharge judicial functions, the constitution of the Court as such cannot vary from time to time, that is to say, it would not be reasonable or just or legal to hold the view that the Syiem and one or more members may constitute the Court for deciding cases. Accordingly, we hold that the Additional Subordinate District Council Court must consist of the Syiem and the five members that is, three Lyngdohs and two Myntries. 7. A. W. 2 Hoion Nongphod stated in his evidence as follows : "There are members in the Additional Subordinate District Council Court of Rambrai Syiemship, namely, 1. U Bisingh Lyngdoh, 2.U Jowell Lyngdoh, 3.U Sewer Lyngdoh, 4.U Shai Myntri and 5, myself (U Hoion Myntri). The Syiem who is also the Chairman of the Additional Subordinate District Council Court of Rambrai Syiemship cannot try cases alone. He must try and decide cases together with the above five members of the Court and decide cases by the majority members." From the evidence of A. W. 2, who is a member of the Court, it is quite clear that the cases before the Additional Subordinate District Council Court of Rambari Syiemship must be tried by the Syiem along with the five other members, and the decision will follow the majority opinion. 8. A. W. 2 further stated in his evidence as follow : "The Syiem in this case tried the case together with other five members of the Court but he decided the case alone". 8. A. W. 2 further stated in his evidence as follow : "The Syiem in this case tried the case together with other five members of the Court but he decided the case alone". The above statement goes to show that the decision in Case No. 1 of 1965 in the Court of the Additional Subordinate District Council Court was of the Syiem alone and not of the Court consisting of the Syiem and the five other members. That being the position, Case No. 1 of 1965 was not decided by the competent court. In the circumstances there is substance in the submission of the learned Counsel for the petitioner that on this ground alone the impugned judgment and decree should be set aside. We accordingly hold that the decision of the Additional Subordinate District Council Court, Rambrai Syiemship, in Case No. 1 of 1965 and the decision of the Judge, District Council Court, affirming the decision of the Additional Subordinate District Council Court, Rambrai Syiemship on appeal, are liable to be set aside and we accordingly set aside the above decisions. 9. The petition is accordingly allowed and Case No. 1 of 1965 is remanded to the Additional Subordinate District Council Court, Rambrai Syiemship, for disposal in accordance with law and in the light of the observations made hereinabove. There will be no order as to costs. BAHARUL ISLAM, J. :- I agree. Petition allowed.