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2017 DIGILAW 711 (GAU)

Sazolie Angami v. Lhouvitso Zhale

2017-06-01

SONGKHUPCHUNG SERTO

body2017
JUDGMENT AND ORDER : 1. This is a revision petition filed under Rule 32 of the Rules for Administration of Justice and Police in Nagaland, (Third Amendment) Act, 1984 read with Section 115 of the Code of Civil Procedure, 1908, praying for quashing and setting aside the ex-parte order dated 15.09.2016, passed by the D.Bs court, Kohima in Pol. Case No. 8 of 2016. 2. The brief facts of the case as submitted by the learned counsel for the petitioner are as follows: On 03.11.2014, the present respondent Mr. Lhouvitso Thevo along with some of his family members entered into the disputed forest land situated at Tekhubazou Seikha and started cutting trees, and on being intervened by the petitioner, they discontinued the same. The petitioner reported about the incident to the village authority. In pursuant to the report, the GB’s of Chedema Village, under whose jurisdiction the disputed land namely, Tekhubazou Seikha is situated, took up the matter for settlement as per the village customary practices, as such called both the parties along with village elders on 04.11.2014. As a result of the process undertaken the GB’s court, on 13.11.2014, decided the dispute in favour of the petitioner. The respondent being aggrieved by the decision of the GB’s court dated 13.11.2014, preferred an appeal before the Political Assistant to Deputy Commissioner, Kohima (P.A. to D.C.). The P.A. to D.C. disposed the same on 07.04.2015, whereby, the GB’s decision dated 13.11.2014, was interfered with. Aggrieved, the present petitioner, approached this High Court by filing a revision petition, being Civil Revision Petition No. 2(K) of 2015. This High Court on 06.05.2016 disposed the same, whereby, the order dated 07.04.2016, of the P.A. to D.C. Kohima, was quashed and set aside. However, liberty was granted to the present respondent to approach the competent court. Thereafter, the present respondent approached the DB’s court, Kohima by filing an appeal and the same was registered as Pol. Case No. 8 of 2016. In that case the petitioner submitted his reply stating that the DB’s court has no jurisdiction to entertain any appeal against the decision of the GB’s court/village authority. However, ignoring the same, the DB’s court proceeded ex-parte and passed the impugned order dated 15.09.2016, wherein, the dispute regarding the suit land was decided in favour of the present respondent. 3. In that case the petitioner submitted his reply stating that the DB’s court has no jurisdiction to entertain any appeal against the decision of the GB’s court/village authority. However, ignoring the same, the DB’s court proceeded ex-parte and passed the impugned order dated 15.09.2016, wherein, the dispute regarding the suit land was decided in favour of the present respondent. 3. Aggrieved by the said order, the petitioner preferred this revision petition praying for quashing and setting aside the same, on the following grounds: (a) that the DB’s court, Kohima has no jurisdiction to entertained appeal under the Rules for the Administration of Justice and Police Nagaland. Therefore, the impugned ex-parte order dated 15.09.2016, rendered by the DB’s Court, Kohima is null and void. (b) for that the DB’s court below has erred in law and in facts, while passing the impugned order dated 15.09.2016 and therefore the same is liable to be quashed and set aside as being illegal and not tenable in the eye of law. (c) for that the DB’s court has committed illegality in passing the impugned order dated 15.09.2016, for not taking into consideration the reply submitted by the petitioner. (d) that the DB’s court has committed manifest error of law and facts by proceeding with the application of the respondent/appellant when no grounds of appeal was set out against the decision under challenged i.e. GB’s court Chedema. (e) that the DB’s court interfered the subject matter which was already decided by the GB’s court Chedema Village. (f) that in any view of the matter the impugned order dated 15.09.2016, cannot be sustained as the same was passed by referring to 42 years old order where subject matter was different and petitioner was not a party. 4. Heard the learned counsel of the petitioner Mr. Kekhriengulie and also heard Mr. N. Mozhui, learned counsel for the respondent. 5. Mr. Kekhriengulie, submitted that the only issue to be decided is as to whether or not appeal would lie in the court of DBs against the decision of GB’s court. The learned counsel submitted that DB’s court is only a court having original jurisdiction and not an appellate court, therefore, an appeal against decision of a GB’s court would not lie in it. The learned counsel submitted that DB’s court is only a court having original jurisdiction and not an appellate court, therefore, an appeal against decision of a GB’s court would not lie in it. The learned counsel further submitted that appeal against decision of GB’s court would lie only before the Deputy Commissioner of the district or to his assistant or assistants, which does not include DB’s court, therefore, the impugned order was passed by the DB’s court, Kohima without jurisdiction as such the same is null and void. 6. Mr. N. Mozhui, learned counsel for the respondent, submitted that the petitioner is barred by the Doctrine of Res-judicate because the dispute regarding the suit land was already determined by the court of Dobashis, Kohima by order dated 31.10.74 in Misc. Case No. 448/73. The learned Counsel also submitted that the petitioner has no locus-standi over the suit land since the dispute over the same was between the elder brother of the respondent and one Mr. Douselie, before the court of the Dobashis, wherein, the matter was already settled. 7. The petition is filed under Rule 32 of the Rules for Administration of Justice and Police in Nagaland, (Third Amendment) Act, 1984 read with Section 115 of the Code of Civil Procedure, 1908, therefore, it would be proper to reproduce the contents of the two provisions of law, hence, they are reproduced here below one after other:- “32. The High Court or the Deputy Commissioner may, on an application by the aggrieved party or otherwise call for the proceedings of any case decided by any officer subordinate to him and pass such order as may be deemed fit; Provided that the party aggrieved may move such application only after availing of remedy by way of appeal, if any, provided under the rules against such decision.” “Section 115. Revision- (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears:- (a) to have exercised a jurisdiction not vested in it by law. (b) to have failed to exercise a jurisdiction so vested. (c) to have acted in the exercise of its jurisdiction illegality or with material irregularity. (b) to have failed to exercise a jurisdiction so vested. (c) to have acted in the exercise of its jurisdiction illegality or with material irregularity. The High Court may make such order in the case as it thinks fit; Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.” 8. On cursory perusal of Rule 32 of the Rules for Administration of Justice and Police in Nagaland, (Third Amendment) Act, 1984, given above particularly the proviso, it would be seen that any one of the parties aggrieved by the proceedings before any officer subordinate to the High Court or the D.C. can approach the High Court or the D.C. under such provision, only after having availed the remedy by way of an appeal. As per Rule 31 of the same Act (Principal Act), 1937 read with Rule 2 of the Second Amendment Act, 1982, of the same Act, appeal lies against such decision of DB’s court before the D.C. or his assistant, therefore, the petitioner before coming to this court under Rule 32 of the same Act, should have first exhausted the remedy available by way of appeal before the appellate court. However, since the petitioner has not exercised the remedy provided under the Act which is the pre-requisite as per proviso to the Rule 32, for approaching this court, the petition of the petitioner is not maintainable. 9. However, since the petitioner has not exercised the remedy provided under the Act which is the pre-requisite as per proviso to the Rule 32, for approaching this court, the petition of the petitioner is not maintainable. 9. On the other hand, under Section 115 of the Code of Civil Procedure, 1908, any party aggrieved by the decision of any court sub-ordinate to the High Court for which remedy under appeal does not lie can approach the High Court under this provision, where it appears that such decision has been made by the sub-ordinate court in excess of jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or have exercised its jurisdiction illegally or with material irregularity. In this case as stated above, there is provision for appeal against the order of the DB’s court. Therefore, the petitioner’s case is not covered by this provision of law. In other words, the petitioner’s case cannot be entertained under the provision of section 115 of the CPC. 10. In view of what has been stated above, the revision petition is dismissed. There is no order as to cost.