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2018 DIGILAW 937 (GAU)

Khehuli Zhimomi v. Khetoni Chishi

2018-06-14

PRASANTA KUMAR DEKA

body2018
JUDGMENT : 1. Heard Ms. Esther, the learned counsel for the appellants. Also heard Mr. Pfosekho, the learned counsel for the respondent Nos. 1 to 10. 2. This is a second appeal under section 100 of the Code of Civil Procedure, 1908 against the judgment and order dated 21.12.2016 passed by the learned Civil Judge (Senior Division), Dimapur in Civil Appeal No. 1/2015. The present respondents as the petitioners approached the pro forma respondent, i.e., the Padumpukhuri Village Council for recovery of debts as claimed by them from the present appellant No. 1. The respondents also asked the appellant No. 1 to give an undertaking for repayment of loan. As such on 28.3.2015, the appellant No. 1 gave an undertaking to repay the debts to the respondents within a period stipulated by the Village Council. The said Council vide judgment and order dated 1.6.2015 decided that the appellant No. 1 owed principal amount of Rs. 1,04,50,000/- to the respondents. The appellant No. 1 was directed to repay the amount to the respondents within a period of one year and the breakup of the said amount to be repaid was in installments as per the finding of the Village Council. It would not be out of place to mention here that the present appellant No. 2 was not a party in the proceeding before the Village Council. The decision and direction to repay the loan to the respondents was given by the Village Council only to the appellant No. 1. On the other hand, the Village Council accepted the claim made by the respondents as the principal amount borrowed by the appellant No. 1. While the appellant No. 1 asserted to have repaid in excess of the principal amount the same was not considered by the Village Council. The amount of Rs. 1,04,50,000 includes interest as calculated and claimed by the respondents which the present appellant disputes. The respondents thereafter made an application dated 19.6.2015 to the Village Council to give certain conditions in case of failure by the appellant No. 1 to repay the loan within the stipulated time period as fixed by the Village Council. The amount of Rs. 1,04,50,000 includes interest as calculated and claimed by the respondents which the present appellant disputes. The respondents thereafter made an application dated 19.6.2015 to the Village Council to give certain conditions in case of failure by the appellant No. 1 to repay the loan within the stipulated time period as fixed by the Village Council. The said prayer made by the respondents was disallowed and thereafter the respondents again made an application on 13.8.2015 thereby seeking for a direction that both the appellant No. 1 and her husband, appellant No. 2 be held liable for repayment of the loan on the monthly basis and that the properties owned by the appellant No. 2 be pledged as collateral security for the repayment of the loan. The same was also rejected on the ground that the Village Council cannot review the judgment and order dated 1.6.2015. 3. Being aggrieved by such refusal by the Village Council, the respondents filed Civil Appeal No. 1/2015 in the learned Court of Civil Judge (Senior Division), Dimapiir. The said appeal was filed under order 41 of the Code of Civil Procedure, 1908 (‘CPC’). The relief sought in the said appeal was to set aside and quash the Village Council's judgment and order dated 1.6.2015 and to restrain the present appellants from alienating any property and to direct the appellant Nos. 1 and 2 to make repayment of the loan on monthly installment basis. In support of the claim made by the respondents some undertakings allegedly to be made by the appellant No. 1 to repay the loan on various interest rates were also annexed. 4. The present appellants filed affidavit-in-opposition denying the claim categorically and further pleaded that the appellant No. 1 borrowed the said amount for one Mr. Noken Longkumer and appellant No. 2 had no knowledge with regard to the said transaction. Another plea was taken that the loan transaction was made between the respondents and the appellant No. 1 on behalf of Mr. Noken Longkumer. As such it was stated that the present appellant No. 2 is not liable for repayment of the loan. 5. The learned Civil Judge by the impugned judgment and order dated 21.12.2016 set aside the final order and judgment dated 1.6.2015 passed by the Village Council and held that the appellants are jointly and severally liable to pay an amount of Rs. 5. The learned Civil Judge by the impugned judgment and order dated 21.12.2016 set aside the final order and judgment dated 1.6.2015 passed by the Village Council and held that the appellants are jointly and severally liable to pay an amount of Rs. 1,04,50,500 as principal amount and same to be paid to the respondents within a period of 6 months. On the failure to repay the said amount an interest at the rate of 8% per annum was also directed to be paid until further realization of the borrowed amount. Till the amount is repaid, the residential building and Veneer Mill standing on the plot of land covered by Patta No. 1123, Dag No. 130/1474, Mouza No. 3 in the name of appellant No. 2 shall stand as collateral security for the loan. Further the appellants were restrained from alienating or creating any third party interest with regard to the immovable property by holding both the appellant Nos. 1 and 2 to be jointly and severally liable to the respondents in repaying the said borrowed amount. 6. Thereafter, the present second appeal has been preferred by the appellants which was admitted on 17.8.2017 by formulating the following substantial questions of law: A. Whether an appeal lies to the Civil Judge (Senior Division), under order 41 of the CPC against the decision of a Village Council? B. Whether the First Appellate Court, after setting aside the decision of the Village Council can give own finding in respect of the principal amount owed by the present appellants without trying the case de novo, particularly in absence of any evidence on record?: C. Whether without taking any evidence the Appellate Court can hold the present appellant No. 2 liable for the loan jointly and severally with the present appellant No. 1 particularly when he was not a party in the case before the Village Council and when no direction was passed against him by the Village Council? D. Whether the judgment and order dated 21.12.2016 in Civil Appeal No. 1/2015 is passed in accordance with the provisions of rule 31 of order 41 of the CPC? 7. After the admission the records were called for and the same is taken up for its final disposal. D. Whether the judgment and order dated 21.12.2016 in Civil Appeal No. 1/2015 is passed in accordance with the provisions of rule 31 of order 41 of the CPC? 7. After the admission the records were called for and the same is taken up for its final disposal. It is the contention of the learned counsel for the appellants that the appeal under order 41 of the CPC does not lie against the decision of a Village Council and to that effect, the learned counsel pressed rule 31 of the Rules for the Administration of Justice and Police in Nagaland, 1937. As per the said rule 31 it has been specifically stipulated that an appeal shall lie from the decision of the Mouzadars, Gaonburhas, etc., or other duly recognized Village Authority to the Tribal Court whenever constituted or otherwise to the Deputy Commissioner or his assistant. It is further submitted that the First Appellate Court cannot give a fresh decision setting aside the judgment of the Village Council on its own finding in respect of the principal amount without trying the case de novo, more so, in the absence of any evidence on record. It is the contention of the learned counsel for the appellants that the jurisdiction invoked by the First Appellate Court under Order 41 of the CPC itself is wrong and as such she confined her argument on the substantial question of law No. 1 which on my part also find proper because if the said substantial question of law, is decided, the whole appeal can be disposed of. 8. On the other hand, the learned counsel for the respondents supports the finding of the learned First Appellate Court and sought for dismissal of this second appeal. 9. Considered the submission of the learned counsel. Perused the judgment and decree passed by the learned First Appellate Court. Admittedly a dispute has arisen between the parties to this appeal. The respondents moved the Village Council and as against that the Village Council has given a finding that the present appellant owed an amount of Rs. 1,04,50,000 and disposed of the said complaint vide its final judgment and order thereby specifying the installment to be paid to the respondents. Admittedly a dispute has arisen between the parties to this appeal. The respondents moved the Village Council and as against that the Village Council has given a finding that the present appellant owed an amount of Rs. 1,04,50,000 and disposed of the said complaint vide its final judgment and order thereby specifying the installment to be paid to the respondents. After passing of the said judgment and order by the Village Council the respondents sought for impleading the present appellant No. 2 and sought for review of the judgment and order of the Village Council. That was refused by the Village Council. 10. Thereafter the first appeal was preferred by the respondents invoking the jurisdiction under order 41 of the CPC. The learned First Appellate Court also accepted the judgment and order passed by the Village Council to be a decree as required under provision made in the CPC, i.e., section 96 of the CPC. It is not in dispute that both the parties to this appeal submitted to the jurisdiction of the Village Council. The respondents are aggrieved as the appellant No. 2 was not held to be jointly and severally liable to the amount allegedly borrowed by the appellant No. 1. The learned First Appellate Court further without taking any evidence, on its own sweet will, held that the appellants are liable to pay the sum of Rs. 1,04,50,000. Not only that, the appellant No. 2 who was not at all a party before the Village Council was also dragged into the said dispute and held that both the appellants are jointly and severally liable to pay the borrowed amount. Further, immovable properties standing in the name of the appellant No. 2 was also considered as a collateral security against the borrowed amount by the appellant No. 1. 11. The respondents were aggrieved by the judgment and order passed by the Village Council and ought to have preferred an appeal under rule 31 of the Rules for the Administration of Justice and Police in Nagaland, 1937. Instead they preferred the first appeal and that too under section 96 of the CPC. Section 96 of the CPC stipulates an appeal from an original decree and order 41 stipulates the procedure and the form of appeal. Instead they preferred the first appeal and that too under section 96 of the CPC. Section 96 of the CPC stipulates an appeal from an original decree and order 41 stipulates the procedure and the form of appeal. The learned court below ought not take cognizance of the said appeal inasmuch as there was no formal decree passed by any court as defined under section 2(2) of the CPC which stipulates that decree means the formal expression of an adjudication which so far with regard to the court expressing it conclusively determine the rights of the parties with regard to all or any of the matter in controversy in the suit. Section 9 of the CPC stipulates courts to try all civil suits unless barred. The court referred in the section 9 of the CPC is within the scope of the Bengal, Agra and Assam Civil Courts Act, 1887. On the other hand, Rules for the Administration of Justice and Police in Nagaland, 1937 in Part-IV prescribes administration of Civil Justice. It would not be out of place to mention here that the said heading “Civil Justice” was introduced by section 12 of the Nagaland Act No. 1, 1987 replacing the earlier nomenclature “civil rule”. The origin of the courts are totally on different footing. The court under the CPC is governed by the Bengal, Agra and Assam Civil Courts Act, 1887 and on the other hand, in order to render civil justice keeping in view the customary practice in the State of Nagaland, Government is empowered to authorize village authority under Chapter IVA of the Rules for the Administration of Justice and Police in Nagaland through customary court. Rule 45(a) therein prescribes that a village court shall try suits and cases falling within the purview of the village or tribal laws and customs. After introducing of the Chapter IVA in the said Rules for the Administration of Justice and Police in Nagaland the provision contained in section 14 of Nagaland Village and the Area Councils Act, 1978 was repealed Chapter IVA in the said Rules for the Administration of Justice and Police in Nagaland defines customary court which includes village court defining its power as mentioned hereinabove. Rule 60 therein Rules, 1937 the mode of execution of a decision passed by Village Court is prescribed. Rule 60 therein Rules, 1937 the mode of execution of a decision passed by Village Court is prescribed. But nowhere it has been found that the judgment and order of the Village Court amounts to a decree equivalent to the definition of decree as stipulated in section 2(2) of the CPC. 12. Rule 62(3) stipulates to follow the spirit of the Code of Civil Procedure while dealing civil suits by the District Customary and Subordinate District Customary Courts. As per rule 64 the appellate authority is the District Customary Court. However, rule 31 of Rules 1987 has been retained and as such the respondents ought to have preferred the appeal as prescribed by the said rule 31. The learned court below failed to differentiate the force of the judgment and order by the Village Council inasmuch as the judgment and order passed by the Village Council is confined to the customary and the prevailing laws within the State of Nagaland and on the other hand, the learned First Appellate Court is the creation of a statute in order to decide and to try all suits of a civil nature excepting suits of which are expressly barred. Moreover, the learned First Appellate Court while invoking jurisdiction under section 96 of the CPC acted as if the same is deciding the dispute within the limited scope as prescribed under Village Court whose powers are discussed hereinabove. This is gross perversity and under no circumstances it can be accepted that the First Appellate Court has the authority to be the appellate authority of a decision given by the Village Councils Courts. Under such circumstances the substantial question No. 1 is decided in favour of the appellants thereby holding that the said appeal against the judgment and order passed by the Village Council dated 1.6.2015 is wrong and the First Appellate Court cannot invoke the jurisdiction under section 96/order 41 of the CPC to act as the Appellate Forum against the judgment and order passed by the Village Council on the face of prescribed rule 31 of the Rules for the Administration of Justice and Police in Nagaland, 1937. 13. In view of the findings of the substantial question of law No. 1, the substantial question of law Nos. 2, 3 and 4 are also decided in favour of the appellants. 13. In view of the findings of the substantial question of law No. 1, the substantial question of law Nos. 2, 3 and 4 are also decided in favour of the appellants. The substantial question of law No. 5 so far is concerned, there is no pleadings in order to decide the said substantial question of law. Until and unless there are pleadings to that effect, no substantial question of law can be formulated and as such the same is held to be redundant. 14. Accordingly, the judgment and decree passed by the First Appellate Court is set aside and appeal succeeds. 15. Send back the LCR. 16. Prepare the decree thereby holding that the judgment and decree passed by the learned First Appellate Court in Civil appeal No. 1/2015 passed by the learned Civil Judge (Senior Division), Dimapur is set aside as the same is null and void owing to lack of inherent jurisdiction.