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2007 DIGILAW 164 (GAU)

Kmenlang Suiam v. State of Meghalaya

2007-02-28

TINLIANTHANG VAIPHEI

body2007
JUDGMENT T. Vaiphei, J. 1. This revision petition is directed against the order dated 23.10.2006 passed by the learned Addl. Deputy Commissioner, Shillong in FAO No. 23 (T) 2006 whereby the appeal against the order dated 27.9.2006 passed by the learned Assistant to Deputy Commissioner, Shillong was disposed of and allowed without formally fixing the date of hearing of the appeal which, according to the Petitioner, deprived her of a full-fledged hearing on the merit of the appeal. 2. The undisputed facts may be recorded straightway. The Petitioner entered into an agreement with the Mining and Geology Department, Govt. of Meghalaya for utilization of her weighbridge installed at Thangskai, Jaintia Hills District, Meghalaya for weighing of minerals laden vehicles plying on National Highway 44 i.e. Jowai-Umkiang-Badarpur Road. The agreement was extended for a period of three years by the Respondent No. 1 with effect from 2.7.2004 to 2.7.2007. While the Petitioner was carrying out her part of the agreement, the Respondent No. 1 issued a Public Notice dated 28.2.2006 allowing the Respondent No. 4 i.e. M/s Umkiang Weighbridge located within 15 KMs of the Petitioner's weighbridge on the Jowai-Badarpur Road to undertake similar operation. As the Petitioner found her business affected by the said notice, she instituted Title Suit No. 10 (T) 2006 before the learned Assistant to Deputy Commissioner, Shillong against all the Respondents for specific performance of the agreement by the Respondent No. 1 and for declaration that she had the exclusive right to undertake such activity on National Highway 44 to the exclusion of the Respondent No. 4. The Petitioner also sought for consequential relief of permanent injunction to restrain the Respondent Nos. 1 to 3 from allowing the Respondent No. 4 to operate the said weighbridge. The Petitioner also filed a miscellaneous application for temporary injunction against the said notice dated 28.2.2006, which was registered as Misc. Case No. 27 (T)2006. The learned Assistant to Deputy Commissioner, Shillong by his order dated 12.4.2006 after hearing the Respondents No. 1 to 3, suspended the said notice dated 28.2.2006 and further restrained the Respondent No. 4 from operating the weighbridge. In terms of this temporary injunction, the Respondent No. 1 by a Notification dated 18.4.2006 suspended the Public Notice dated 28.2.2006 and made it clear that the Respondent No. 4 should not carry out the weighment of mineral laden trucks. 3. In terms of this temporary injunction, the Respondent No. 1 by a Notification dated 18.4.2006 suspended the Public Notice dated 28.2.2006 and made it clear that the Respondent No. 4 should not carry out the weighment of mineral laden trucks. 3. Apparently aggrieved by the said order of injunction, the Respondent No. 4 preferred an appeal before the learned Addl. Deputy Commissioner, Shillong which was registered as FAO No. 7 (T) 2006. The learned Addl. Deputy Commissioner, Shillong by the judgment and order dated 15.5.2006 set aside the temporary injunction passed by the trial Court and remanded the same for fresh consideration and at the same time ordered that status quo with regard to operation of the weighbridge as on the day of judgment be maintained. The Respondent No. 1 taking cue from the status quo order issued a fresh notification allowing the Respondent No. 4 to continue the weighment of mineral laden trucks. When this was brought to the notice of the learned Addl. Deputy Commissioner, Shillong, the notification was again suspended. Thereupon, all the Respondents moved the learned Assistant to Deputy Commissioner by filing their respective show causes against the temporary injunction, which was posted for final disposal. However, the Respondent No. 4 also preferred a review petition before the learned Addl. Deputy Commissioner challenging the judgment dated 15.5.2006 and the same was dismissed by the learned Addl. Deputy Commissioner by his order dated 26.7.2006. The learned Assistant to Deputy Commissioner thereafter heard the parties and by his order dated 27.09.2006 passed a temporary injunction suspending the public notice dated 28.2.2006 as well as restraining the Respondent No. 4 from operating the weighment of minerals laden trucks till the final disposal of the title suit. Anticipating an appeal by the Respondents, the Petitioner promptly lodged to caveat before the learned Addl. Deputy Commissioner. The Respondent No. 4 as expected preferred an appeal from the order of the trial Court granting injunction, which was registered as FAO No. 23 (T) 2006. The appeal came up before the learned Addl. Deputy Commissioner on 9.10.2006, which was re-fixed on 11.10.2006 for admission and further orders on the prayer of the Respondent No. 4. On 11.10.2006, the counsel for the Petitioner opposed the prayer for staying the temporary injunction granted by the trial Court on 27.9.2006. The learned Addl. The appeal came up before the learned Addl. Deputy Commissioner on 9.10.2006, which was re-fixed on 11.10.2006 for admission and further orders on the prayer of the Respondent No. 4. On 11.10.2006, the counsel for the Petitioner opposed the prayer for staying the temporary injunction granted by the trial Court on 27.9.2006. The learned Addl. Deputy Commissioner admitted the appeal on 11.10.2006 and by the impugned order dated 23.10.2006 allowed the appeal on merit and disposed of the same. Resultantly, the temporary injunction granted by the trial Court on 27.9.2006 came to be set aside. The Petitioner is aggrieved by this order primarily on the ground that the appellate Court could not have disposed of the appeal when the matter was yet to be posted for hearing. This is the subject matter of the appeal herein. 4. The short point which falls for consideration in this appeal is whether the appeal which was already admitted for hearing Could be finally disposed of by the appellate court before family fixing a date of hearing. The proceedings of the appellate Court would reveal that on 9.10.2006 when the appeal was moved by the Appellant, the Respondent No. 4 had already entered his appearance through his counsel, who prayed that the matter be taken up later in the day and that as notices were not yet served upon the Respondent Nos. 1 to 3, the matter was adjourned to 11.10.2006 for admission and further orders. The order dated 11.10.2006, which is at Annexure-9, discloses that the appeal was admitted after hearing both the counsel for the Appellant and the Respondent No. 4 and that the case was reserved for order on 23.10.2006. The appellate Court also observed that he had heard the learned Counsel for the Appellant as well as the Respondent No. 4. The appeal was finally disposed of by the impugned order dated 23.10.2006. It is contended by Mr. A.K. Bhattacharjee, the learned senior counsel for the Petitioner that the appellate Court had no jurisdiction, or at any rate, has acted with material irregularity in disposing the appeal on merit when the appeal was yet to be fixed for hearing: the Petitioner was consequently deprived of an opportunity to present her case. It is contended by Mr. A.K. Bhattacharjee, the learned senior counsel for the Petitioner that the appellate Court had no jurisdiction, or at any rate, has acted with material irregularity in disposing the appeal on merit when the appeal was yet to be fixed for hearing: the Petitioner was consequently deprived of an opportunity to present her case. Drawing my attention to Order 41, Rule 12 of the Code of Civil Procedure, the learned senior counsel strenuously contends that once the appeal is admitted, the appellate Court cannot straightway dispose of the appeal on the same day but must fix a day for hearing the appeal and that the appellate Court in the instant case could not have admitted the appeal and in the same breath proceeded to hear the entire appeal on the date of admission of the appeal itself in violation of the provisions of Order 41, Rule 12 of the Code. By resorting to this strange procedure, according to the learned senior counsel, the Petitioner was denied of her right to make submission on the very maintainability of the appeal preferred by the Respondent No. 4 before the lower appellate Court. In any case, contends the learned senior counsel, the hearing before the appellate Court on 11.10.2006 was confined only to admission and stay matters and not to the merit of the appeal and the lower appellate Court acted with material irregularity and violated the principles of natural justice by disposing of the appeal on merit on the day fixed for admission and stay matter. He, therefore, contends that the impugned order suffers from serious procedural defects which cannot be cured, and is liable to be quashed and the appeal be remanded to the appellate Court for fresh hearing on merit. On the other hand, Mr. N. Dutta, the learned senior counsel for the Respondent supports the impugned order and submits that when all the contentious points raised by the Appellant/Petitioner were already dealt with and extensively heard by the lower appellate Court, the latter did not commit any error of fundamental nature by disposing of the appeal on merit. As a matter of fact, the appellate Court has meticulously followed the dicta of the Apex Court pronounced from time to time for expeditious disposal of appeals. As a matter of fact, the appellate Court has meticulously followed the dicta of the Apex Court pronounced from time to time for expeditious disposal of appeals. He contends that no prejudice was caused to the Petitioner by disposing of the appeal on the day of the admission of the appeal. Drawing my attention to the impugned order, the learned senior counsel for the Respondents point out that the counsel for the Petitioner had already dealt with all the points involved in the appeal. Which has been extensively dealt with point by point by the lower appellate Court and contends that fixing a separate date for hearing of the appeal under the aforesaid facts and circumstances will be merely observing useless formality rules. Contending that the revision petition is devoid of merit, he strenuously urges that the revision petition be dismissed with compensatory costs to the Respondents. 5. I have carefully perused the impugned order and the pleading of the parties. The procedure for admission of appeal from original decrees is engrafted in Order 41, Rule 9 to Rule 15, whereas the procedure for hearing of appeal from original decrees is adumbrated in Order 41, Rule 16 to Rule 29of the Code. In the instant case, we are basically concerned with the provision relating to appeals from orders and not from decrees. The provision governing appeals from orders are dealt with in Order 43, Rule 1 and 2 of the Code. The appeal preferred by the Petitioner before the lower appellate Court pertained to an appeal from the order of injunction passed by the trial Court under Order 39, Rule 1 of the Code, which is entertained under Order 43, Rule 1(r) of the Code. Order 43, Rule 2 of the Code provides that the Rules of Order 41 shall apply so far as may be, to appeals from orders. This is being the position, the appellate Court shall also have to governed, so far as possible, by the procedures laid down in Order 41 in dealing with appeals from orders. Order 41, Rule 11 deals with power of the appellate Court to dismiss appeal without sending notice to the lower Court and without serving notice to the Respondents. Order 41, Rule 11A mandates that every appeal shall be heard under Rule 11 as expeditiously as possible. Order 41, Rule 11 deals with power of the appellate Court to dismiss appeal without sending notice to the lower Court and without serving notice to the Respondents. Order 41, Rule 11A mandates that every appeal shall be heard under Rule 11 as expeditiously as possible. Order 41, Rule 12 provides that unless the appellate Court dismisses the appeal under Rule 11 it shall fix a date for hearing the appeal. Order 41, Rule 14provides for the manner in which notice fixing a date of hearing of appeal shall have to be published and served upon the Respondents. Then, Order 41, Rule 16 says that on the day fixed for hearing or on the adjournment day for hearing, the Appellant shall be heard in support of the appeal and the Court shall then, if it does not dismiss the appeal at once, hear the Respondent against the appeal and in such a case, Appellant shall be entitled to reply. 6. In the instant case, the Respondent No. 4 had already entered his appearance through his counsel on the very day of the admission of the appeal itself. In para 16 of the impugned order, he observed that from the submissions of the parties, he was of the opinion that the merit of the appeal was already touched by both sides and that since he had already been seized with the matter even on earlier occasion, he proposed to dispose of the appeal at that stage. This show that the appellate Court was fully conscious of the facts and circumstances of the case and also the material points in issue therein. He recorded the finding that since the agreement executed by the Petitioner and the State of Meghalaya contained the stipulation that both the parties would have the liberty to withdraw from the agreement at any time after giving a notice of a minimum period of 90 days, this plainly showed that the agreement was determinable in nature which, according to Section 14(1)(c) of the Specific Relief Act, 1963, cannot be enforced and that since the agreement could not be enforced, the injunction prayed for by the Petitioner cannot be granted as enjoined by Section 41(e) of the Specific Relief Act, 1963. The findings so recorded by the appellate Court appear to be in order. The findings so recorded by the appellate Court appear to be in order. I agree with the reasoning of the appellate Court that if the agreement relied upon by the Petitioner cannot be enforced under the provisions of Section 14(1) of the Specific Relief Acts, the Petitioner is certainly not entitled to injunction, temporary or otherwise. Since injunction is a matter which can be granted on the Appellant showing a prima facie case which, in turn, is depending upon prima facie existence of a legal right and if the Petitioner could not show a prima facie case, I do not find any infirmity in the impugned order setting aside the temporary injunction granted by the trial Court in favour of the Petitioner. 7. But the submission of Mr A.K. Bhattacharjee, the learned senior counsel for the Petitioner is on the mandatory nature of the provisions of Order 41, Rule 12 of the Code, which are couched in the following language: 12. Day for hearing appeal: (1) Unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal. (2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the Respondent and the time necessary for service of the notice of appeal, so as to allow the Respondent sufficient time to appear and answer the appeal on such day. It is true that the use of the word "shall" in Order 41, Rule 12 of the Code, in the foregoing provision raises a presumption that the appellate Court is under an obligation to fix a day for hearing the appeal, but then the question is whether violation of such provision would invalidate the appellate proceedings culminating in the impugned order? It must be noted that the consequence of nullification of such proceeding/order on failure to comply with such prescribed procedure is not provided by the statute itself. In Sangram Singh v. Election Tribunal, Kota (1955) 2 SCR 1 , the Apex Court held that while considering the non-compliance with a procedural requirement, it has to be kept in view that such a requirement is designed to facilitate justice and further its ends and, therefore, if the consequence of non-compliance is not provided, the requirement may be held to be directory. Simply because a procedural law is couched in a negative language implying mandatory character, does not mean that the same is not without exceptions. All the rules of procedure are handmaids of justice and not the mistress of justice. Moreover, in the instant case, the Respondent had already entered his appearance through a counsel and was prepared to argue, and had, in fact, extensively argued on all the contentious issues involved in the appeal. The Petitioner had also dealt with all the substantial points associated with the appeal. Nothing was left to be argued by the parties. Where all the grounds urged on behalf of the parties were squarely covered by the decision of the appellate Court, in my opinion, to keep the appeal lingering longer would not only be an exercise in futility but would also be frivolous, vexatious. No doubt, it would have been better had the appellate Court meticulously followed the provisions of Order 41, Rule 12 of the Code, but breach of such provision, without anything more, cannot be a ground for this Court to invoke its revisionary jurisdiction. No substantial prejudice has apparently been committed by the appellate Court so as to warrant the interference of this Court. On the contrary, it may as well be argued that any interference by this Court in the impugned order will result in perpetuation of illegality or injustice. 8. For the reasons stated in the foregoing, there is no merit in this revision petition, which is liable to be dismissed. The revision petition is accordingly dismissed, but, in the fact and circumstances of the case, I pass no order as to costs. Interim order, if any, also stands vacated. Petition dismissed