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2017 DIGILAW 759 (GAU)

Hevuto Chishi v. Kutu Chishi

2017-06-08

LANUSUNGKUM JAMIR

body2017
JUDGMENT : Lanusungkum Jamir, J. 1. Heard Mr. Imti Longjem, learned counsel for the petitioner. Also heard Mr. N.K. Luikham, learned counsel appearing for the sole respondent. 2. The petitioner was the GB of Sutemi Village with effect from 01.05.1995. However, the respondent's family approached the Village Council claiming the G. Bship and by Order dated 04.10.2011, the Village Council of Sutemi Village decided the issue in favor of the respondent. Against the decision of the Sutemi Village Council, the petitioner approached the Deputy Commissioner, Zunheboto by way of an appeal which was endorsed to the Dobashi Court. By order dated 2.2.2012, the Dobashi Court reversed the decision of the Sutemi Village Council. Being aggrieved, the respondent again appealed before the Deputy Commissioner, Zunheboto who in turn, endorsed the matter again to the Political Assistant to the Deputy Commissioner, Zunheboto. By order dated 7.10.2013, the Political Assistant to the Deputy Commissioner, Zunheboto again decided the issue in favor of the respondent. Not being satisfied, the petitioner approached this Court by way of W.P.(C) No. 210 (K) of 2014 which was disposed of by judgment and order dated 13.05.2016. The relevant portion of the judgment and order dated 13.05.2016 is reproduced herein below:- "21. Going by the provisions as contained in the Rules and Rule 2(C) in particular, this Court is of the considered opinion that the Political Assistant to the Deputy Commissioner is not vested with any judicial powers by the Rules and therefore, has no power to hear appeals against an order passed by the Dobashi Court. 22. In the facts and circumstances of the case, the order dated 07.10.2013 passed by the Political Assistant to DV in Judl-1/10/08 Case No. 08/12 is hereby quashed and set aside. Consequently, the order dated 19.10.2013 passed by the Sub-Divisional Officer (C), Akulato and the order dated 30.09.2014 appointing the respondent No. 5 as GB of Sutemi Village are also quashed and set aside. 23. Liberty is however granted to the respondent No. 5 to file a fresh appeal if so advised. In the event the respondent No. 5 prefers to file a fresh appeal, the same should be filed before the learned District and Sessions Judge, Zunhebeto in view of the decision passed by the Division Bench of this Court in the case of Registrar General, Gauhati High Court Vs. Union of India & Ors., reported in 2013 (4) GLT 1109. In the event the respondent No. 5 prefers to file a fresh appeal, the same should be filed before the learned District and Sessions Judge, Zunhebeto in view of the decision passed by the Division Bench of this Court in the case of Registrar General, Gauhati High Court Vs. Union of India & Ors., reported in 2013 (4) GLT 1109. 24. Writ petition is allowed. 25. No costs." 3. On liberty being granted by this Court, the respondent filed F.A. No. 1/2016 in the Court of the District and Sessions Judge, Zunheboto. The learned District and Sessions Judge, Zunheboto by order dated 13.6.2016 admitted the appeal and further stayed the order dated 2.2.2012 passed by the Dobashi Court. Thereafter, on receiving notice, the petitioner filed an application which was registered as I.A. No. 1/2016 before the Appellate Court praying for recalling of the order dated 13.6.2016 passed in F.A. No. 1/2016 and also for dismissal of the F.A. No. 1/2016. The learned Appellate Court after hearing the parties in I.A. No. 1/2016 passed an order dated 7.11.2016. The operative portion reads as under:- "7. The present Appellant is also found pursuing the case diligently in the same subject-matter in dispute, undoubtly a civil proceeding is also another weightage to consider under Section 14 of the Limitation Act, 1963 by replying National Insurance Co. Ltd. & Ors. Vs. Gurboc Singh & Ors., 2003 (1) GLT 349. 8. Besides, the instant Appeal Petition was filed on 13.06.16 before this Court and registered by my predecessor as the First Appeal No. 01 of 2016 on the given direction with 'liberty to file a fresh Appeal' before this Court by the Hon'ble Gauhati High Court Kohima Bench in W.P. (C) No. 210 (K) of 2014 by order dated 13.05.2016. Therefore, relying on Union of India Vs. V.L. Rawna & Ors. 2007 (1) GLT 742 Section 5 of the Limitation Act can be availed of for condonation of delay. No doubt in this case too, there was no prayer for condonation of delay on the part of the appellant. Therefore, relying on Union of India Vs. V.L. Rawna & Ors. 2007 (1) GLT 742 Section 5 of the Limitation Act can be availed of for condonation of delay. No doubt in this case too, there was no prayer for condonation of delay on the part of the appellant. However, this Hon'ble Gauhati High Court Kohima Bench decision in W.P.(C) No. 210 (K) of 2014 is created condonation of delay in this case as 'liberty to file afresh Appeal was pleased to be allowed by the said Hon'ble high Court, the same amounts to condonation of the delay is applied in this petition in the interest of justice. Hence, the Petition is dismissed. Henceforth, the Appeal shall proceed. However, no costs in this petition. This disposed this Petition." Being aggrieved by the order dated 07.11.2016 passed by the Appellate Court in I.A. No. 1/2016, the present revision petition has been preferred by the petitioner. 4. Mr. Imti Longjem, learned counsel for the petitioner submits that this Court while disposing of W.P.(C) No. 210(K) of 2014 had only granted liberty to the respondent to file a fresh appeal, if so advised. He submits that in view of the direction passed by this Court, the learned Appellate Court ought to have considered the matter in it proper perspective as to whether the F.A. No. 1/2016 filed by the respondent was barred by limitation. Further, while filing the appeal, the respondent had made no application for condonation of delay and therefore, the learned Appellate Court could not have admitted the appeal by order dated 13.06.2016. It was incumbent upon the learned Appellate Court to have directed the respondent to file an application for condonation and thereafter should have issued notice to the present petitioner and after hearing the parties on the issue of limitation, should have passed appropriate order. The learned counsel for the petitioner further submits that the learned Appellate Court while passing the order dated 07.11.2016 in I.A. No. 1/2016 had failed to take into consideration the proper and correct intent of the judgment and order dated 13.05.2016 passed by this Court in W.P.(C) No. 210(K) of 2014 inasmuch as, this Court had, at no point of time, condoned the delay for filing the connected appeal by the respondent. In that view of the matter, he submits that the impugned order dated 13.06.2016 passed in F.A. No. 1/2016 and the order dated 07.11.2016 passed in I.A. No. 1/2016 should be set aside and F.A. No. 1/2016 be dismissed. 5. Mr. N.K. Luikham, learned counsel appearing for the sole respondent, on the other hand, submits that Section 14 of the Limitation Act, 1963 was invoked and as the parties were diligently pursuing the matter, the learned Appellate Court had rightly decided on the issue of limitation and had passed the order dated 07.11.2016 in I.A. No. 1/2016. It is also submitted that prior to passing of the order dated 07.11.2016, the learned Appellate Court was also of the considered opinion that there was no delay in filing the F.A. No. 1/2016 and therefore by order dated 13.6.2016, the appeal was lightly admitted. In that view of the matter, he submits that no interference is required in the order dated 13.6.2016 and 7.11.2016 and the present revision petition should be dismissed. 6. I have considered the submissions forwarded by the learned counsel for the parties. 7. This Court by judgment and order dated 13.05.2016 passed in W.P. (C) No. 210(K) of 2014 had only permitted the respondent to file a fresh appeal, if so advised. The issue of limitation was kept open and therefore, it was incumbent on the part of the respondent to have filed an application for condonation of delay and only thereafter, the learned Appellate Court should have decided the matter. 8. After considering the order dated 7.11.2016 passed in I.A. No. 1/2016, this Court is of the considered opinion that the learned Appellate Court had misconstrued the judgment and order dated 13.05.2016 passed in W.P.(C) No. 210(K) of 2014. The learned Appellate Court should have invoked the provisions of Order 41 Rule 3(A) of the CPC, 1908 while considering the F.A. No. 1/2016 filed by the respondent. As no application for condonation of delay was filed by the respondent before the Appellate Court and on consideration of the order dated 13.06.2016 passed in F/A No. 1/2016 and order dated 07.11.2016 passed in I.A. No. 1/2016 passed by the learned Appellate Court, this Court is of the considered opinion that there has been miscarriage of justice against the petitioner. In that view of the matter, the order dated 13.6.2016 passed in F.A. No. 1/2016 and the order dated 7.11.2016 passed in I.A. No. 1/2016 are set aside and quashed. However, considering that the litigation has been going on for a very long time, this Court grants permission to the respondent to file an application under the Limitation Act, 1963 as provided by law. Thereafter, the learned Appellate Court shall proceed in accordance with law. 9. With the above observations and directions, this revision petition is allowed. 10. No costs.