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1990 DIGILAW 204 (GAU)

Nalini Ranjan Borman v. On The Death of Nadia Chand Borman His Heirs, Smti Basana Bala

1990-09-03

R.K.MANISANA SINGH

body1990
This is an appeal from the decree passed by the District Judge, Silchar in T.A. No. 11 of 1977 allowing the appeal from the decree passed by the Assistant District Judge (2) in T.S. No.65 of 1970. 2. Mr. N.M. Lahiri, the learned counsel for the appellant, has con­tended that the District Judge had no jurisdiction to hear and dispose of the appeal, or, in any event, the judgment and decree of the District Judge had been vitiated by biasness. The submission of Mr. Lahiri is that Shri Amit Sarkar had, when he was the Assistant District Judge, to deal with the suit as a trial Judge. Subsequently, he was appointed as the District Judge, Silchar and became the appellate authority. Therefore, Shri Sarkar could not hear the appeal as the appellate authority. 3. On perusal of the records of the suit, it appears that Shri Sarkar was dealing with the suit as the original Court for some time. He passed order directing repairing of the suit house. He also passed order appoi­nting Commission for examination of the extent of repairs and survey of the suit house. Therefore, while he was dealing with the suit, Shri Sarkar passed judicial orders in the capacity as the original Court. 4. The jurisdiction of the Court may be restricted by a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to the place, value and nature of the subject matter. The restriction shall also extend to the personal jurisdiction in view of the doctrine of bias. The principles governing doctrine of bias are: (i) no man shall be a Judge of his own cause and (ii) justice should not only be done but manifestly and andoubtedly seem to be done. Therefore, in the administration of justice, the fundamental importance that justice should not only be done but manifestly and undoubtedly be seem to be done should always be kept in view. "Acting fairly" is the essence of the principle of natural justice. 5. Keeping the above principle in view, let me now examine the case on hand. As earlier stated, while he was dealing with the suit as the original Court, Shri Sarkar passed interlocutory judicial orders which could have been passed ordinarily after examining the merits of the case. "Acting fairly" is the essence of the principle of natural justice. 5. Keeping the above principle in view, let me now examine the case on hand. As earlier stated, while he was dealing with the suit as the original Court, Shri Sarkar passed interlocutory judicial orders which could have been passed ordinarily after examining the merits of the case. As regards the bias as used in law regarding disqualification of a Judge, refers to mental attitude or disposition of Judge towards a party to the litigation. Therefore, there would be a "risk of bias", if a judicial officer who himself had to deal with a suit as an original Court by passing judicial interlocutory orders hears the appeal arising out of that suit in the capacity as an appellate authority. The 'risk of bias' is against the principle of that "justice must appear to have been done". In such a situation Shri Sarkar should not have dealt with the appeal in the capacity as the appellate authority. For the reasons stated, Shri Amit Sarkar was disqualified from hearing the appeal before him. This view of mine finds support from the decision of this Court in Ka Nila Shyrmang Tyrshahaug vs. Ka Shallai, 1975 ALR 142 (DB), in which it has been held : "In the fitness of things and in accordance with the principles of natural justice we do not think that any judicial officer who himself had to deal with a suit or case at the trial by recording evidence etc. should try the same matter on appeal, in the capacity of an appellate authority." 6. The next question which arises for consideration is whether the case should be remanded or the present appeal should be disposed of by this Court by dealing with the evidence considering the age of the suit. The learned counsel for the parties have submitted that the right of appeal of the aggrieved party will be deprived of, if the appeal is disposed of after considering the evidence on record. Shri Sarkar is not the present District Judge Silchar. Considering the facts and the over-all circumstances of the case, I am inclined to remand the case. 7. The learned counsel for the parties have submitted that the right of appeal of the aggrieved party will be deprived of, if the appeal is disposed of after considering the evidence on record. Shri Sarkar is not the present District Judge Silchar. Considering the facts and the over-all circumstances of the case, I am inclined to remand the case. 7. For the foregoing reasons, the appeal is allowed, and" the judg­ment and decree of the District Judge, Silchar passed in T.A. No. 11 of 1977 are set aside and the matter is sent back to the District Judge for disposal afresh. 1 would like to request the District Judge, Silchar to dispose of the appeal within a period of 3 months from the date of receipt of the records. With the above observation and direction the appeal is allowed and disposed of. No costs.