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2009 DIGILAW 401 (GAU)

Nyami Riba v. Doi Riba

2009-06-09

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. R. Saikia, learned Counsel for the Petitioner and also heard Mr. K. Ete. Learned Counsel appearing for sole Respondent. 2. This application has been made under Section 50 of the Assam Frontier (Administration of Justice) Regulation, 1945, read with Section 115 of Code of Civil Procedure, 1908, and Article 227 of the Constitution of India for quashing the order dated 21.08.2008 passed by the Court of Fast Track Court (FTC), Basar, in BSR/CA-66/07. 3. The brief facts of the case are that the Petitioner purchased a plot of land and a stream called 'BURRE' from one Sri Tamen Tacha who has migrated to Dekapam from Disi village in the year 1967 and when the Respondent claimed to be owner of the same, the Petitioner filed a complaint against the Respondent and accordingly, a Keba was conducted on 06.02.2007 wherein, the Keba members after hearing all the witnesses, decided the matter in favour of the Petitioner. The Respondent, being aggrieved by the Keba decision dated 06.02.2007 preferred an appeal before the Addl. Deputy Commissioner, Basar and the same was transferred to Fast Track Court, Basar, for disposal. The same was registered as Case No. BSR/CA-66/07. The learned FTC without complying with the procedure under Section 38(1) read with Section 46(3) of the Assam Frontier (Administration of Justice) Regulation, 1945, (hereinafter referred to as Regulation only), took-up the appeal de novo and passed the impugned order dated 21.08.2008 for listing the matter on 16.09.2008 for Plaintiff's evidence. 4. Mr. Saikia, learned Counsel for the Petitioner, submits that the aforesaid impugned order has been passed in violation of Order 41, Rule 27 of Code of Civil Procedure, 1908 and Section 46 of the said Regulation. It is further stated that the Petitioner filed an Objection Petition on 09.09.2008 before the learned FTC, Basar, against the impugned order dated 21.08.2008 but the same was not considered and disposed of and therefore, the Petitioner has approached this Court for setting aside the impugned order dated 21.08.2008 and/or for passing appropriate direction to dispose of the Objection Petition dated 09.09.2008, aforesaid. 5. Mr. 5. Mr. Ete, learned Counsel for the sole Respondent submits that the appellate Court is authorized under the provisions of Rule 46(3) of the Regulation to record evidence if it finds grounds to doubt the justice of the decision and it shall try the case de novo or refer the same to the Panchayat. The appellate Court has to take a decision after receipt of the Appeal as to whether it should proceed to try the case de novo or refer to the Panchayat. It is because of the reason that the proceeding including any evidence taken by Keba, must be recorded. The proceeding of the Keba is more or less a proceeding of an amicable settlement. It is also submitted that the power of appellate Court is also provided under Section 107 of Code of Civil Procedure, 1908 and therefore, once the appellate Court decides to try the matter de novo, it may record evidence for the purpose of arriving at a right decision and adjudication thereof. 6. I have considered the submissions made by the learned Counsel appearing for the parties. From the impugned order dated 21.08.2008, it is found that the learned FTC, Basar, exercising jurisdiction under Section 46(3) of the Regulation, has not decided as to whether it would choose either of the options, namely, to try the matter de novo itself or to refer the matter to the Panchayat. Without opting for either of the options, the learned trial Court has fixed the matter for Plaintiff's evidence. In this respect, it will be appropriate to quote Section 46(3) of the aforesaid Regulation, as follows: 46. (3) The appellate court shall, if necessary, examine the parties, and, if the decision appears to be just, shall affirm and enforce the decision as its own. If the appellate court sees grounds to doubt the justice of the decision, it shall try the case de novo or refer to a Panchayat; in any case so referred, the provisions of Section 38 shall apply as if the parties had agreed to submit to arbitration. 7. There is no doubt that the learned FTC, Basar, is vested with power to take-up the appeal and try itself de novo but it has to first take the decision and such decision must be recorded. 7. There is no doubt that the learned FTC, Basar, is vested with power to take-up the appeal and try itself de novo but it has to first take the decision and such decision must be recorded. There is also no dispute as regards the power of the appellate Court to refer the matter to a Panchayat if the parties agree to submit to arbitration. There is no material before this Court to that effect also. 8. In view of the aforesaid provisions of law, I find that the impugned order dated 21.08.2008 has been passed without complying with the provision under Section 46(3) of the Regulation and as such, the same is liable to be quashed and accordingly, the same is quashed. The matter is remanded back to the learned FTC, Basar, for passing necessary order (s) in compliance with the provisions 46(3) of the Regulation. 9. The petition stands disposed of accordingly.