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2010 DIGILAW 331 (GAU)

Violet Mawrire v. Ka Jelina Jyrwa

2010-05-11

TINLIANTHANG VAIPHEI

body2010
JUDGMENT T. Vaiphei, J. 1. The short question which falls for consideration in this revision petition under Article 227 of the Constitution of India is whether the second suit filed by the petitioner is barred by Order 23, Rule1(4)(b) of the Code of Civil Procedure if the first suit filed by her predecessor-in-interest before a court lacking inherent jurisdiction had been withdrawn without the permission of that court? 2. The controversy arose when the petitioner instituted Title Suit No. 3 of 2006 in the court of the Subordinate District Council Court, Shillong against the respondent for a decree, inter alia, of declaration of her ownership over the suit land measuring about acres situate at Nongmynsong, Shillong. It is her case that she is the youngest daughter of the late Killing Mawrie, from whom she inherited the suit land after her death. According to the petitioner, during the lifetime of her grandmother, the suit land had been leased out to the respondent on a rental basis @ Rs. 24 per annum, which had been regularly paid by her, but she stopped payment of the rent after the death of her grandmother. As a result, the respondent has 'become an unauthorized occupant of the suit land. It is alleged by the petitioner that during her illegal occupation, the respondent started transferring - a portion of the suit land to some other person without her consent. She has also gone to the extent of constructing RCC building on a portion of the suit land without any right over the same. She was, therefore, constrained to request the respondent to vacate the suit land and deliver peaceful possession thereof to her, but she refused to do so whereupon she instituted the suit. The respondent contested the suit and filed her written statement by denying the owner of the suit land by the petitioner. It would appear that the grandmother of the petitioner had earlier instituted Title Suit No. 40(T) of 1999 before the learned Assistant to Deputy Commissioner, Shillong against the respondent herein concerning the same subject-matter. The suit was admittedly withdrawn by her grandmother without the permission of the court to file a fresh suit in respect of the same subject-matter. The respondent now questioned the maintainability of T.S. No. 3 of 2006 before the Subordinate District Council Court on the ground that the suit is barred by Order 23, Rule 1(4)(b). 3. The suit was admittedly withdrawn by her grandmother without the permission of the court to file a fresh suit in respect of the same subject-matter. The respondent now questioned the maintainability of T.S. No. 3 of 2006 before the Subordinate District Council Court on the ground that the suit is barred by Order 23, Rule 1(4)(b). 3. The preliminary objection was accepted by the Subordinate District Council Court, who then dismissed the suit on the ground that the same was not maintainable. It is contended by Mr. M.F. Qureshi, the learned Counsel for the petitioner, that both the parties in T.S. No. 40(T) of 1999 admittedly belonged to tribals, and the learned Assistant to D.C., Shillong had no inherent jurisdiction to entertain the suit and that as the suit was withdrawn by the grandmother of the petitioner from a court having no jurisdiction, the suit was no suit in the eye of law and, as such, the withdrawal of suit before a court lacking jurisdiction is to be treated as non est and a nullity. Consequently, so submits the learned Counsel for the petitioner, the petitioner cannot be precluded from instituting the instant suit; the trial court has grossly erred in law in non-suiting the petitioner. On the other hand, Mr. K Baruah, the learned Counsel for the respondent, supports the impugned order and contends that no case is made out by the petitioner for the interference of this Court. He maintains that once the earlier suit had been withdrawn by the grandmother of the petitioner without obtaining permission from court to file a fresh suit, irrespective of whether such court has the jurisdiction or not, the petitioner is precluded from instituting the instant suit. I have carefully gone through the impugned order. From the submissions made by the counsel appearing for both the parties, I am given to understand that the trial court dismissed the suit on the ground that the previous suit being T.S. No. 40(T) of 1999 instituted by the grandmother of the petitioner before the learned Assistant to D.C. had been withdrawn by her without permission to file a fresh suit in respect of the same subject-matter. To appreciate the rival contentions, I will refer to Order 23, Rule 1 of the Code, which reads, thus: 1. Withdrawal of suit or abandonment of part of claim. To appreciate the rival contentions, I will refer to Order 23, Rule 1 of the Code, which reads, thus: 1. Withdrawal of suit or abandonment of part of claim. - (1) At any time after the institution of a suit, the plaintiff may against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without leave of the court. (2) An application for leave under the proviso to Sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under Sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he shall be liable fur such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorize the court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw, under Sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs. 4. (5) Nothing in this rule shall be deemed to authorize the court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw, under Sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs. 4. The provisions extracted above plainly say that under Sub-rule (3) in Order 23 of the Code, power is given to the court to permit the plaintiff to withdraw the suit with a liberty to file another, suit for the same cause of action. But for the permission, which is contemplated by Sub-rule (3), of granted by the court, another suit for the same cause of action cannot be filed. The embargo on filing of another suit for the same cause of action has been imposed by Sub-clause (b) of Sub-rule (4) of Order 23(1) in public interest. No litigant can be allowed to file suits one after another for the same cause of action, which not only causes harassment to the party against whom it is filed, but it has also the unnecessary impact on the public exchequer and unnecessary load on court-time. In the instant case, the admitted position of the parties is that the previous suit filed by the grandmother of the petitioner had been withdrawn by her without the permission of the court to file a fresh suit for the same subject-matter. The petitioner is the granddaughter of the plaintiff in the previous suit. In Devarapu Narasimharao v. Yerrabothula Peda Venkaiah 1998 (2) ALT 513 , the Division Bench of the Andhra Pradesh High Court has ruled that the word "plaintiff in Rule 1(4) of Order 23 of Code includes his heirs, representatives in interest and persons claiming title through him. This is what the Andhra Pradesh High Court said: (27) Three is no reason as to why the disability should not be extended to persons claiming through a plaintiff against whom the order under Order 23, Rule 1(4) of the Code of Civil Procedure applies. If the disability does not extend to persons claiming title through such plaintiff, it would enable such plaintiff to circumvent the provisions of Order 23, Rule 1(4) of the Code of Civil Procedure by making an assignment or agreement to sell after withdrawal of the suit without obtaining the leave of the court. If the disability does not extend to persons claiming title through such plaintiff, it would enable such plaintiff to circumvent the provisions of Order 23, Rule 1(4) of the Code of Civil Procedure by making an assignment or agreement to sell after withdrawal of the suit without obtaining the leave of the court. True it is that under Order 23, Rule 1(4) of the Code of Civil Procedure it is not mentioned that the representatives or persons claiming or deriving title through such plaintiff shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim; yet, there appears to be no reason for holding that such plaintiff does not include his heirs and representatives in interest on the general principles of law that an order by or against such person binds not only him but also the persons claiming through him. The heirs or persons claiming title through such plaintiff can never be said to be in a better position than the person through whom they claim such subject-matter or part of the claim. Therefore, the word "plaintiff" used in Order 23, Rule 1(4) of the Code of Civil Procedure includes his heirs and representatives in interest. I am in respectful agreement with their lordships of the Andhra Pradesh High Court. Seemingly, there is force in the contention of the learned Counsel for the respondent that the instant suit filed by the petitioner comes within the mischief of Order 23, Rule (1)(4) of the Code. But this submission requires deeper examination in the context of the State of Meghalaya, where the provisions of Sixth Schedule are applicable. Paragraph 4 deals with the administration of justice in autonomous districts and autonomous regions, which says: 4. Administration of justice in autonomous districts and autonomous regions. But this submission requires deeper examination in the context of the State of Meghalaya, where the provisions of Sixth Schedule are applicable. Paragraph 4 deals with the administration of justice in autonomous districts and autonomous regions, which says: 4. Administration of justice in autonomous districts and autonomous regions. - (1) The Regional Council for an autonomous region in respect of areas within such region and the District Council for an autonomous district in respect of areas within the district other than those which are under the authority of the Regional Councils, if any, within the district may constitute village councils or courts for the trial of suits and cases between the parties all of whom belong to Scheduled Tribes within such areas, other than suits and cases to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply, to the exclusion of any court in the State, and may appoint suitable persons to be members of such village councils or presiding officers of such courts, and may also appoint such officers as may be necessary for the administration of the laws made under paragraph 3 of this Schedule." (2)...Omitted as irrelevant... (3)...Omitted as irrelevant... (4) A Regional Council or District Council, as the case may be, may with the previous approval of the Governor make rules regulating - (a) the constitution of village councils and courts and the powers to be exercised by them under this paragraph; (b) the procedure to be adopted by the village councils or courts in the trial of suits and cases under sub-paragraph (1) of this paragraph; (c) the procedure to be followed by the Regional or District Council or any court constituted by such courts in appeals and other proceedings under sub-paragraph (2) of this paragraph; (d) the enforcement of decisions and orders of such councils or courts; (e) all other ancillary matters for the carrying out of the provisions of sub-paragraphs (1) and (2) of this paragraph. (emphasis supplied) 5. In exercise of the powers conferred under sub-paragraph (4) of paragraph 4 of the Sixth Schedule to the Constitution, the erstwhile United Khasi-Jaintia Hills District Council framed the United Khasi-Jaintia Hills Autonomous District (Administration of Justice) Rules, 1953 ('the Rules') for constitution of courts, the powers to be exercised by them and the procedure to be followed by such courts in the trial of suits and cases, etc. Rule 4 of the Rules is relevant for this case, and the same reads as follows: 4. Classes of courts. - There shall be three classes of courts, as specified below, in the areas within the United Khasi Jaintia Hills Autonomous District to be constituted by the district council for the trial of suits and cases between the parties all of whom belong to Schedule Tribes or Tribesother than suits and cases to which the provisions of sub-paragraph (1) of paragraph 5 of the Sixth Schedule to the Constitution apply: (i) Village Courts. (ii) Subordinate District Council Courts and Additional Subordinate District Council Courts. (iii) District Council Courts. (emphasis supplied) 6. A conjoint reading of sub-paragraph (1) and (4) of paragraph 4 of the Sixth Schedule to the Constitution and Rule 4 of the Rules abundantly makes it clear that in so far trial of suit between parties all of whom belong to Scheduled Tribes, the courts constituted under Rule 4 of the Rules, namely. Village Courts, Subordinate District Council Courts/Additional Subordinate District Council Courts and District Council Courts, shall have and exercise exclusive jurisdiction over such suits. In other words, suits triable by the courts constituted under Rule 4 of the Rules cannot be entertained by the Courts of Deputy Commissioner, Additional Deputy Commissioner of the Khasi Hills Districts or his Assistants. Any doubt in this behalf is dispelled by Rule 58 of the Rules, which is in the following terms: 58.(1) The provisions in the Khasi State (Administration of Justice) Order, 1950, published in the government of Assam's Notification No. SK 149/49/8, dated the 25th January, 1950, the Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills published in the Government of Assam's Notification No. 2618 AP, dated the 29th March, 1937 and the Assam Autonomous Districts (Administration of Justice) Regulation, 1952 (Regulation No. III of 1952) published in the Government of Assam Notification No. TAD/R/51/106, dated the 3rd April, 1952, are hereby repealed in so far as they relate to the matters dealt with these Rules. (2) Notwithstanding such repeal every suit, appeal, application for revision, proceeding and other business relating to both civil and criminal justice, pending on the date of commencement of these Rules, before the court of the Deputy Commissioner, Additional Deputy Commissioner, United Khasi Jaintia Hills or his Assistants shall be transferred or deemed to have been transferred for disposal to the court which would have been competent to entertain and dispose of suits, appeal, application for revision proceedings or business had these Rules been in force on the date of institution or commencement of the same and the latter court shall deal with, and dispose of the same in accordance with law. (emphasis supplied) 7. It is, thus, clear that any trial of suits between parties all of whom belong to Scheduled Tribes within the areas covered by the Khasi Hills Autonomous District Council shall be exclusively triable by Courts constituted under Rule 4 of the Rules read with paragraph 4(4) of the Sixth Schedule to the Constitution of India, and the court of Deputy Commissioner, Additional Deputy Commissioner or Assistant to Deputy Commissioner shall have no jurisdiction to entertain such suits. In the instant case, the previous suit filed by the grandmother of the petitioner was apparently entertained by the learned Assistant to Deputy Commissioner, but the suit was subsequently withdrawn by her without leave to file a fresh suit for the same cause of action. The jurisdiction of a court may be broadly classified into three categories, namely, (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject-matter. So far as territorial and pecuniary jurisdictions are concerned, the same can be waived by the parties unless objection to such jurisdiction is taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on this count that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. When a court has no jurisdiction over the subject-matter of the suit by reason of limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. When a court has no jurisdiction over the subject-matter of the suit by reason of limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity. In the case before me, limitation upon the learned Assistant to Deputy Commissioner, who had earlier entertained the suit filed by the grandmother of the petitioner, to take up such suit between a tribal and a tribal was imposed by the provision Rule 4 of the Rules read with paragraph 4(4) of the Sixth Schedule to the Constitution. The order passed by him disposing of the said suit on an unconditional withdrawal by the grandmother of the petitioner is a nullity. The suit was not maintainable as the learned Assistant did not have the inherent jurisdiction to entertain the subject-matter of the suit. The grandmother of the petitioner could not have conferred jurisdiction upon the learned Assistant to try such suit. At this stage, it may be profitable to quote from the decision of the Apex Court in Ear shad Chiman Lal Modi v. DLF Universal Ltd. (2005) 7 SCC 791 : (SCC, pp. 804-5, paras 31, 32 and 33) 31. In Halsbury's Laws of England, (4th edn.), Reissue, vol. 10, para 317, it is stated: 317. Consent and waiver. - Where by reason of any limitation imposed by a statute, charter or commission, a court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court, nor can consent give a court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled. Where the court has jurisdiction over the subject-matter of the claim or the particular parties and the only objection is whether, in the circumstances of the case, the court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case; or a defendant by entering an appearance without protest, or by taking steps in the proceedings, may waive his right to object to the court taking cognizance of the proceedings. No appearance or answer, however, can give jurisdiction to a limited court, nor can a private individual impose on a judge a jurisdiction or duty to adjudicate on a matter. A statute limiting the jurisdiction of a court may contain provisions enabling the parties to extend the jurisdiction by consent. 32. In Bahrein Petroleum. Co. (1966) 1 SCR 461 this Court also held that neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. It is well-settled and needs no authority that "where a court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing". A (sic) passed by a court having no jurisdiction is non est and its invalidity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non-judice. 33. In Kiran Singh v. Chaman Paswan this Court declared: (1955) 1 SCR 117 at p. 121 It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction...strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. 8. Since the previous suit instituted by the grandmother of the petitioner was incompetent and the order allowing the withdrawal of that suit without liberty to file a fresh suit was, therefore, a nullity, such suit cannot be deemed to be a suit duly instituted. In my opinion, in order to attract the mischief of Order 23, Rule 1(4)(b) of the Code; the suit withdrawn without the permission of the court must be one which was instituted before a competent court of jurisdiction. If the previous suit was instituted before a court lacking inherent jurisdiction, even if the suit was withdrawn without the permission of the court, the plaintiff cannot be precluded from instituting a fresh suit in respect of the same subject-matter or such part of the claim. If the previous suit was instituted before a court lacking inherent jurisdiction, even if the suit was withdrawn without the permission of the court, the plaintiff cannot be precluded from instituting a fresh suit in respect of the same subject-matter or such part of the claim. As already noticed, the grandmother of the petitioner filed the previous suit against another tribal before the learned Assistant to Deputy Commissioner, Shillong, which had no jurisdiction to entertain the suit, the same cannot be treated as a suit contemplated by Order 23, Rule 1(4)(b) of the court. In this view of the matter, the petitioner is not precluded from instituting the instant suit. The trial court has, therefore, erred in law in holding that the suit is not maintainable and has, in the process, failed to exercise the jurisdiction vested in it by law to entertain and dispose of the suit in accordance with law. 9. The resultant discussion is that this revision petition succeeds. The impugned order non-suiting the petitioner is, therefore, illegal and is accordingly, set aside. The learned Presiding Officer, Subordinate District Council Court, Khasi Hills, Shillong shall now proceed with the trial of the suit and dispose of the same after hearing parties in accordance with law. However, on the peculiar facts of the case, I pass no order as to costs. Petition allowed