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2021 DIGILAW 345 (GAU)

T. Bangerloba v. J. Walter Longchar

2021-04-09

S.HUKATO SWU

body2021
JUDGMENT : The present Civil Revision petition is filed under Section 115 of the CPC 1908 read with Article 227 of the Constitution of India. The revision is against the Order dated 19.10.2020 passed by the Civil Judge (Senior Division), Dimapur, Nagaland in I.A. No. 93/2020 arising out of Civil Suit No.6/2020 and also against the order dated 16.12.2020 passed by the learned District & Sessions Judge in Civil Appeal 3/2020. 2. The facts of the matter in brief is that the Naga Council Dimapur which is composed of 19 (nineteen) tribal bodies represented by two members each from each tribe composes the Council. The term of the Naga Council, Dimapur was to expire by March 2020. However, it is alleged that the outgoing members of the Naga Council by a resolution purported to have been attended by 38 members from different tribes had resolved to extend their tenure for a specific period for resolving the issue of unfinished work concerning the Naga Cemetery. The same was protested and objected to by a group of Naga Councils Members. However, the petitioners’ group continue to function. The respondents herein filed the Civil Suit nomenclatured as 6/2020 in the Court of the learned Civil Judge (Senior Division), Dimapur. An I.A. Petition, numbered as 75/2020 was also filed for restraining the present revisionist from selecting, electing, nominating any office bearers till next returnable date. The learned Civil Judge (Senior Division), Dimapur Vide order dated 9.7.2020 passed an ex-parte interim order restraining the present revisionist from exercising any steps of nominating and electing office bearers till the next returnable date i.e. 13.08.2020. The revisionist raised objections on the ground that provisions of order 39 Rule 3(b). Learned Civil Judge (Senior Division), Dimapur, on consideration of the matter, vacated the ex-parte ad interim injunction on 13.8.2020. While the injunction remain vacated the present revisionist selected office bearers and started functioning the office of the Naga Council Dimapur. It is asserted that the same was exercised under the provisions of the constitution of the Naga Council which is contained under Article 8. Subsequently, the respondents herein filed another I.A.(Civil) 93/2020 praying for annulment and to put in abeyance the installation, induction of new office bearers Naga Councils Dimapur. The I.A. also contains various prayers which is not useful for our purpose. Subsequently, the respondents herein filed another I.A.(Civil) 93/2020 praying for annulment and to put in abeyance the installation, induction of new office bearers Naga Councils Dimapur. The I.A. also contains various prayers which is not useful for our purpose. By an order dated 19.10.2020, the I.A. petition was disposed off restraining the newly appointed executive Naga Council not to function as office executive/ office bearers. The order was challenged before the learned District & Sessions Judge, Dimapur, Nagaland in Misc Appeal 3/2020. The impugned order was challenged under order 43 Rule 1 read with Sec 104 of the CPC. The main grounds taken by the revisionist in the Court of Principal District & Sessions Judge was that the respondents had not moved the Court of the learned Civil Judge (Senior Division), Dimapur in the appropriate Section of Law and that the learned Civil Judge (Senior Division) had exercised powers under Section 151 of the CPC exercising inherent power of the Court. This is not permissible as there are provisions under the CPC to grant injunctions. The learned Principal District & Sessions Judge, Dimapur on hearing the appeal dismissed the appeal by the impugned order dated 16.12.2020. It is against these two orders dated 16.12.2020, passed the learned District & Sessions Judge in Civil 3/2020 and the order dated 19.10.2020, passed by the learned Civil Judge (Senior Division), Dimapur in I.A. No. 93/2020 which is put to challenge in the Revision Petition. 3. Learned Counsel for the revisionist, Mr. P. B. Paul submits that both the two impugned orders suffers from the infirmity for non-compliance of the procedural Law. The exercise of powers under Section 151 CPC is sparingly used by the Courts when there is no provision under the CPC to adjudicate upon the matters that is brought before the Civil Courts. Thus, inherent power is exercised for the ends of Justice. However, it is very specific that the same is exercisable only when there is no provision under the Code to exercise the powers under 151 CPC, when there are specific provisions available, would amount to totally ignore the provisions of procedural Law which is not practiced and recognized by any Court. However, it is very specific that the same is exercisable only when there is no provision under the Code to exercise the powers under 151 CPC, when there are specific provisions available, would amount to totally ignore the provisions of procedural Law which is not practiced and recognized by any Court. He has therefore, argued that the impugned order dated 16.12.2020, passed by the learned Principal District & Sessions Judge and order dated 19.10.2020, passed by the Civil Judge (Senior Division), Dimapur is in total violation of procedural Law and must be quashed and set aside. 4. Appearing for the respondents learned counsel, Mr. Wapang submits several points and events leading to the filing of the present revision petition. The same has been enlightened to the Court to give an idea as to how the present revision petition has come to be filed. The background so rendered shall not be incorporated in the Judgment to refrain from over burdening the Judgment with details of which may not be absolutely relevant for the purpose of disposing the revision petition. He has defended the Judgment of the learned Principal District & Sessions Judge and the order of the learned Civil Judge (Senior Division), Dimapur by urging that the said impugned orders were passed to preserve and ensure the sanctity of the Court by restraining the revisionist from taking Law into their own hands. The impugned orders are neither final order or decree which could undermine the interest of the parties. Both the Courts below has judiciously and prudently exercised the Law within the ambits of Section 151 CPC as the revisionist attempted to surpass the function and the role of the Court. The assertion of the revisionist that the selection of the officials of the Naga Councils was within the ambit of the written Constitution of the Naga Council is totally false and misleading. 5. The revisionist, taking advantage of the vacation of the order dated 13.8.2020, in I.A. No. 75/2020 proceeded to form executive members which was a sub Judicial Act, illegal and unlawful when the issue was in seisin of the Court in the matter. The learned Civil Judge (Senior Division), Dimapur was therefore, compelled to issue the injunction order against the revisionist to stop them from perpetuating further illegalities. The learned Civil Judge (Senior Division), Dimapur was therefore, compelled to issue the injunction order against the revisionist to stop them from perpetuating further illegalities. Therefore, when the matter was placed on appeal before the learned Principal District & Sessions Judge, Dimapur, she was right in dismissing the appeal No. 3/2020 and also I.A. No. 76/2020 filed by the revisionist on 16.12.2020, under the facts and circumstances, it is inappropriate to argue that the Courts below and the respondents did not exercise the right application of Law by mentioning the provisions. This would defeat the purpose of giving substantial justice to the parties and allow abuse of power. Therefore, he has argued that the Courts below was right in exercising the provisions of Section 151 CPC by the learned Civil Judge (Senior Division), Dimapur and upholding of such exercise by the learned Principal District & Sessions Judge. All relevant facts pertaining to the case was examined, considered by the learned Principal District & Sessions Judge and dismissed the appeal of the present revisionist. There is no illegality of misuse of power as such and the impugned orders must be upheld. 6. I have heard and considered the submissions made by the parties at length. The main issue herein to be answered in the present revision petition is whether the order dated 19.10.2020, passed by the learned Civil Judge (Senior Division), Dimapur was in keeping with the procedural Law as laid down under the CPC and whether the learned Principal District & Sessions Judge was right in upholding the said impugned order which was upheld by an order dated 16.12.2020. The issue relates to the non-quoting of the appropriate provisions of Law before the learned Civil Judge (Senior Division), Dimapur. The perusal of the pleading by the respondents clearly demonstrates that no provisions as such was quoted. And the study of the LCR also shows that the learned Civil Judge (Senior Division), Dimapur has not made any mention of any provision under which she has exercised such power restraining the revisionist from functioning as executive members and office bearers of the NCD. The same is reiterated by the learned Principal District & Sessions Judge in the order dated 16.12.2020 which is reflected as: “It is also an admitted fact that the IA 93/2020 was not filed under any specific provisions of the CPC. The same is reiterated by the learned Principal District & Sessions Judge in the order dated 16.12.2020 which is reflected as: “It is also an admitted fact that the IA 93/2020 was not filed under any specific provisions of the CPC. However, there were subsequent developments after the vacation of the injunctions order dated 9.7.2020”. The justification in upholding the order of the Ld. Civil Judge (Senior Division) was “The Ld Court below after considering the entire matters on merit and after hearing both the parties has come to a conclusion that the defendants had inducted the new office bearers selected by the selection commission and installed after the Court order dated 13.10.2020 in IA 75/2020 when the matter was sub judice before the Court. And therefore, entertained IA 93/2020 as an additional pleadings by way of amendment to the IA 75/2020 and admitted IA 93/2020 as a fresh petition to be dealt with separately but warranted to be read together with IA 75/2020”. I am not in agreement with what the learned Principal District & Sessions Judge had relied upholding the order dated 19.10.2020 passed by the Ld Civil Judge(Senior Division). The reading of the operative part of the IA No. 75/2020 reads as follows “ thereby, the instant IA 75/2020 has become infructous and is accordingly treated disposed for the convenience of all parties so as to be further dealt in IA 93/2020 on the new subsequent development grounds under order 39 Rule 2 CPC. This disposes IA 75/2020. Parties shall bear their own cost”. The reading of the above order clearly demonstrates that the I.A. 75/2020 was disposed being infructous. I am unable to comprehend as to how the disposed matter which was filed in the appropriate section of Law could cure the infirmities that occur in the subsequent petitions. It is also justified that it would be treated as additional pleadings unto a dead case and cure the infirmities contained in the subsequent petition. It is also observed how both I.A. petitions, I.A. 75/2020 having being disposed prior to the filing of I.A. 93/2020, were heard on 17.9.2020 and order passed on 19.10.2020. Since I.A. 93/2020 was a subsequent event, both these petitions could not be heard and disposed at the same time. It is chronologically impossible considering the time of events as projected in the two petitions. This exhibits serious lapse. 7. Since I.A. 93/2020 was a subsequent event, both these petitions could not be heard and disposed at the same time. It is chronologically impossible considering the time of events as projected in the two petitions. This exhibits serious lapse. 7. It is also to be mentioned that the respondents had objected to the appeal before the learned Principal District & Sessions Judge is not maintainable under Order 43 Rule 1 read with Section 104 CPC. The respondents had contended that the specific provisions are contained under Order 39 CPC. The same was not addressed by the learned Principal District & Sessions Judge. 8. The learned Principal Judge has relied upon the case of Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh, 2006 (1) SCC 75 wherein the Hon’ble Supreme again reiterated that: “non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to Justice, should never be made a tool to deny Justice or perpetrate injustice, by any oppressive or punitive use” (x) I am of the view that, in fact the learned trial court has dealt with the rival contentions exhaustively and has passed the order dated 19.10.2020 on merits after due consideration of prima facie case of the plaintiffs/respondents; the balance of convenience in their favour and the injuries likely to be caused if the appellants/defendants were not restrained from functioning as office bearers of NCD. In view of the aforesaid legal position regarding procedure vis-à-vis justice and under the facts and circumstances of this case, where the plaintiffs/respondents clearly have a prima facie case in their favour, the trial court has rightly admitted the I.A. 93/2020 and passed the order dated 19.10.2020 exercising the inherent powers under Section 151 of the CPC and I do not see that any case for interference is made out by the appellants.” 9. I am unable to agree with the view taken by the learned Principal District & Sessions Judge as viewed from plethora of cases that has been rendered by the Apex Court. I am unable to agree with the view taken by the learned Principal District & Sessions Judge as viewed from plethora of cases that has been rendered by the Apex Court. The Apex Court, in the case of K.K. Velasamy vs. Paallanisamy which has already been recorded in the judgment of the learned Principal District & Sessions Judge clearly defines as to when the provisions of the Section 151 CPC can be exercised by the Courts. For the sake of understanding the case is herein reproduced: “We may summarise them as follows: (a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is “right” and undo what is “wrong”, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process. (b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances. (c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code. (d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature. (e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief. (f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.” Therefore, this clearly confirms that provisions of 151 CPC is exercisable only when there is no provisions under the CPC. In our case, we have clear provisions under Order 39, which ought to have been applied by the Court below. 10. We follow the adversarial justice delivery system wherein the procedural law is the hallmark of the system, without which justice delivery system would collapse. There is no need gainsaying that no matter how heinous or inappropriate actions committed by a citizen, procedural law has to be followed to put the justice system in place as against citizens. It is the constitutional provisions which mandates so not to talk of violation of civil laws. Even criminals who commit heinous of crimes cannot be punished without following the due process of law. Therefore, when there is a procedure laid down by the statutes, ignoring the same would entail hazardous consequences which every court must avoid. It is the constitutional provisions which mandates so not to talk of violation of civil laws. Even criminals who commit heinous of crimes cannot be punished without following the due process of law. Therefore, when there is a procedure laid down by the statutes, ignoring the same would entail hazardous consequences which every court must avoid. It is specifically mentioned herein that this Court is not dealing into the merits of the case since the matter would be dealt by the learned Civil Judge, Senior Division in the Civil Suit 6/2020. This Court is concerned with the supervisory duty that is entrusted upon this Court under the provisions of Section 115 of the CPC and also the provisions of Article 227 of the Constitution. To illustrate the duty cast upon the High Court the case of Achutananda Baidya vs. Prafullya Kumar Gayen and Ors. would clarify our position. “10. The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the courts and tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse. 11. 11. If the evidence on record in respect of a question of fact is not at all taken into consideration and without reference to such evidence, the finding of fact is arrived at by inferior court or tribunal, such finding must be held to be perverse and lacking in factual basis. In such circumstances, in exercise of the jurisdiction under Article 227, the High Court will be competent to quash such perverse finding of fact.” Therefore, duty is cast upon this Court as a supervisory authority to oversee that the subordinate courts functions within the parameters of law. 10. I hold that when there is specific provisions, that provision has to be exercised. CPC 151 is exercisable only when there are no provisions under the code and I direct the subordinate courts to do so. Impugned order dated 16.12.2020, passed by the learned Principal District & Sessions Judge, Dimapur in Civil Appeal No. 3/2020 and the impugned order dated 19.10.2020, passed by the learned Civil Judge (Senior Division), Dimapur are hereby quashed and set aside. Anxiety is expressed by the parties to dispose of the matter at the earliest to allow the Naga Council Dimapur to function. The present issue being of paramount urgency, considering that it is to do with the Naga Council Dimapur, the learned Civil Judge (Senior Division), Dimapur shall make all efforts to dispose of the matter within a period of 3 months from passing of this order. The respondents are also at liberty to approach the learned Civil Judge (Senior Division), Dimapur by filing the appropriate petition under the code for the adjudication of the matter expressed in this revision petition. 10. Civil revision petition is allowed.