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2006 DIGILAW 995 (GAU)

H. N. Bharali v. Lily Marbaniang

2006-11-14

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. In this case, the petitioner filed an application under Rule 36-A of the Administration of Justice and Police in the Khasi and Jaintia Hills 1937 assailing the order dated 11.07.2006 passed by the learned Additional Deputy Commissioner, Shillong in TCA No. 3(T) 2006 affirming the judgment and order dated 23.06.2003 passed by the learned Assistant to Deputy Commissioner, Shillong in TS 2(T) 1993. After filing the application, apparently as a matter of abundant caution, the petitioner filed this application under Section 5 of the Limitation Act, 1963 for condoning a delay of 7 days in filing the said application. 2. I have heard Mr. K. Khan, the learned Counsel for the petitioner and Mr. VGK Kynta, the learned Counsel for the respondent. 3. I have carefully gone through the explanation of the delay stated in the application. I have also perused the written objection against the prayer for condonation. The first point for determination is whether there is a period of limitation for revision under Rule 36-A. In my opinion, a comparative reading of the provisions of appeal and revision mentioned in Rule 36-A of the Administration of Justice etc. (Khasi and Jaintia Hills) Rules 1937 will show that there is no period of limitation for revision. 'For better appreciation of the controversy, the provisions of Rule 36-A is reproduced hereinbelow: Appeal and revision--The High Court or Deputy Commissioner may, on application or otherwise, call for the proceedings of any case decided by any officer subordinate to him and pass such orders as he may deem fit. The Deputy Commissioner shall be a court of appeal from a decision of an Assistant. The High Court shall be a court of appeal from an original decision of the Deputy Commissioner, if the value of the suit be Rs. 500 or over, or if the suit involves a question of tribal rights or customs, or of right to or possession of immovable property: Provided that the petition of appeal accompanied by a copy of the order appealed against and by a clear statement of the grounds of appeal be filed within 30 days from the date of decision excluding the time required for obtaining a copy of the decision. An appeal which lies to the High Court may be presented to the Deputy Commissioner, who shall, if it be in order and presented in due time endorse upon it the date of receipt and transmit it with the records of the case to the High Court. The decree of the appellate court shall be transferred to the Court passing the original order for execution as a decree of its own. 4. The first paragraph of Rule 36-A pertains to the revisionary jurisdiction of High Court or the Deputy Commissioner which can be activated on the application of a party or otherwise. The word "otherwise" seems to indicate that both the High Court and the Deputy Commissioner can exercise this revision power suo moto. Paragraph 2 of Rule 36-A, however, confers the appellate power on the Deputy Commissioner from a decision of an Assistant, whereas the High Court is to be a Court of appeal from the original decision of the Deputy Commissioner, if the value of the suit is Rs. 500 or over, or if the suit involves a question of tribal right or customs, or of right to possession of immovable property. The proviso of Rule 36-A provides that such petition of appeal accompanied by a copy of the order appealed against and by a clear statement of the grounds of appeal be filed within 30 days from the date of decision excluding the time required for obtaining a copy of the decision. From this proviso, it is thus manifest that the period of limitation is thirty days as incorporated therein for preferring an appeal before the Deputy Commissioner or the High Court, as the case may be. The period of limitation of 30 days prescribed therein is undoubtedly referable to an appeal either to the Deputy Commissioner or to the High Court. In other words, if an appeal is to be preferred to the Deputy Commissioner from a decision of an Assistant or to the High Court from the original decision of the Deputy Commissioner, such appeal must be preferred within 30 days from the date of decision excluding the time required for obtaining a copy of the decision. However, there is no corresponding period of limitation prescribed by paragraph 1 of Rule 36-A for a revision petition to be preferred before the High Court or the Deputy Commissioner. However, there is no corresponding period of limitation prescribed by paragraph 1 of Rule 36-A for a revision petition to be preferred before the High Court or the Deputy Commissioner. In the absence of any express provision prescribing the period of limitation for revision, this Court cannot read words which are not there in the statute book. In other words, this Court by a process of interpretation cannot prescribe a period of limitation for revision petition which are not expressly prescribed by the legislature. To do so would amount to judicial legislation, which is not permissible. Viewed thus, I hold that there is no period of limitation prescribed for revision petition under Rule 36-A of the Administration of Justice etc. (Khasi and Jaintia Hills) Rules 1937. 5. Having said that, the next question which then calls for consideration is whether, in the absence of a period of limitation prescribed by law for filing a revision petition, it can be said that a revision petition can be filed by an aggrieved person at any time? At this stage, it must be noted that in the case of suo moto exercise of revision power, no limitation whatsoever can be prescribed. As the court of record, the High Court has the power to interfere with any order or judgment of subordinate courts at any time to correct improper exercise of jurisdiction which may occasion gross failure of justice. It is, therefore, neither advisable nor desirable to subject the suo moto revision power of this Court to any period of limitation. But this principle cannot be really applicable in a case in which this revision power is invoked by a party. It is a universal principle of law that an aggrieved person, even if no period of limitation prescribed is by law, must approach a court as soon as an injury is caused or threatened to him. This proposition is based on an equitable doctrine that delay defects equity and the longer the injured person sleeps over his rights without any reasonable excuse, his chance of success in the action or proceeding becomes more slender, and in a proper case, the court may throw off the same on the ground of even a short unexplained delay. The reason being that courts are not expected to enquire into belated and stale claim. The reason being that courts are not expected to enquire into belated and stale claim. The principle on which relief is denied to a party on the ground of laches or delay is followed even in Article 226 of the constitution on the premise that the rights which have occurred to others by reason of delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. Article 226 of the Constitution does not prescribe any period of limitation but ordinarily no application under it is entertained unless it is made soon after the right sought to be protected is infringed and no relief will ordinarily be granted to a person who does not seek his remedy under the said Article with due diligence. Thus, even under Article 226 of the Constitution, a party is under obligation to show reasonable explanation for the delay. 6. I do not see any reason as to why this equitable doctrine should not be made applicable to the exercise of revisional jurisdiction of this Court under Rule 36-A of the Administration of Justice etc. (Khasi and Jaintia Hills) Rules, 1937, when a petition is so made by an aggrieved person. In my considered view, though no period of limitation for revision under Rule 36-A is prescribed by law, an aggrieved party must nevertheless approach this Court without inordinate delay, and if there is considerable delay, he must satisfy the court that he was prevented from approaching the court due to circumstances beyond his control or for reason of the like nature. However, I must hasten to add that no separate application for condonation of delay is necessary. In other words, no party can take advantage of the absence of a period of limitation for invoking the revision power of this Court under Rule 36-A and present a revision petition after considerable delay without showing satisfactory explanation for the delay. 7. It is against the aforesaid back drop that I propose to dispose of this application. It is an admitted position of the parties that the delay sought to be condoned in this application is only for seven days. There is thus no inordinate delay in approaching this Court for invoking its revisional jurisdiction. 7. It is against the aforesaid back drop that I propose to dispose of this application. It is an admitted position of the parties that the delay sought to be condoned in this application is only for seven days. There is thus no inordinate delay in approaching this Court for invoking its revisional jurisdiction. Moreover, even though the petitioner appears to be not as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigating him as an irresponsible litigant. He should have been more vigilant but his failure to adopt such extra vigilance should not be made a ground for ousting him from the litigation with respect to the value of the property involved in the suit. In the view that I have taken, I hold that there is no laches or negligence on the part of the petitioner in approaching this Court. 8. The offshoot of the foregoing discussion is that there is no inordinate delay in filing the connected revision petition, which can be entertained for admission. In the result, the application is allowed. Let the revision petition be posted for admission hearing. No order as to cost. Appeal allowed.