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Meghalaya High Court · body

2022 DIGILAW 297 (MEG)

Bistimorial Nongsiej v. State of Meghalaya

2022-11-10

W.DIENGDOH

body2022
JUDGMENT 1. Being highly aggrieved and dissatisfied by the judgment dated 15.02.2019 passed by the learned Additional Deputy Commissioner (Judicial), West Khasi Hills, Nongstoin in Civil Revision No. 1 of 2017, the petitioner has now approached this Court with this application under Article 227 of the Constitution of India. 2. The background of the case as could be seen from the petition is that the petitioner is said to be the owner and in possession of a plot of land measuring 18,427 sq. meters more or less, situated at Nongstoin- Mawkawah Mawthawpdah Road which land was inherited from her mother (L) Belsibon Nongsiej. 3. A portion of this land measuring about 120 x 20 meters was acquired by the respondents from the father of the petitioner (L) Rupring Marwein in the year 1978. 4. The respondent No. 3 vide letter and Memo No.ACQ.A.23/76/200, dated 04.03.2010 issued upon the petitioner's mother has conveyed the intention of the respondents to widen the Nongstoin-Mawthawpdah Road and for a spot enquiry to be conducted on 10.03.2010, which according to the petitioner was done in the presence of the petitioner's mother but no proper measurement of the portion of the petitioner's land was made. 5. The petitioner was confronted with the entry of some persons into her land in the year 2016 claiming to be contractors who were allotted to construct a parking bay at Nongbah junction and that the said construction would be made on the land of the petitioner. 6. The petitioner maintaining that the land was never acquired has accordingly filed a suit for declaration of right, title and interest and consequential relief before the Court of the Assistant to the Deputy Commissioner (J), Nongstoin which was registered as Title Suit No. 1 of 2016. Along with the plaint, an application for waiver of requirement for issue of notice under Section 80 of the CPC and another application under Order 39 Rule 1 & 2 read with Section 151 CPC was also filed before the said Court and the Trial Court upon hearing the petitioner/plaintiff had ordered that status quo be maintained. 7. The respondents then filed an application under Order VII Rule 11 CPC for rejection of the plaint which was rejected by the learned Trial Court. 7. The respondents then filed an application under Order VII Rule 11 CPC for rejection of the plaint which was rejected by the learned Trial Court. Aggrieved thereof, the respondent approached this Court by filing a Revision Petition No. 30 of 2016 and this Court vide order dated 28.09.2016 had disposed of the said petition with a direction to the trial court to decide the following issues. i. Whether Section 80 of the Code of Civil Procedure is mandatory and exception therein? ii. Whether the exception under Section 80 (2) of the Code of Civil Procedure applies in this case? If it applies, what is the urgency that needs to be determined by the Court? iii. Whether the Law of Limitation is applicable in this instant case? 8. The Trial Court on receipt of the said order of this Court heard the parties on the issues and has accordingly decided Issue No. (i) and Issue No. (ii) in favour of the petitioner and on Issue No. (iii) the Court has decided against the petitioner and has held that the suit was barred by limitation and accordingly vide order dated 07.07.2017 had dismissed the suit. 9. The petitioner went up before the Court of the learned Additional Deputy Commissioner (J), Nongstoin against the order dated 07.07.2017 in Civil Revision No. 7 of 2019 and the revisional court upon hearing the parties has dismissed the petition vide Judgment and Order dated 15.02.2019 holding that the Limitation Act is applicable in the case and that Article 58 and not Article 65 of the Limitation Act holds the ground in their case. Hence this petition. 10. Mr. A. S. Siddique, learned Sr. counsel for the petitioner has submitted that the main contention of the petitioner is that the learned Trial Court ought not to have dismissed the case of the petitioner/plaintiff on the ground of limitation since it is apparent that Article 65 of the Limitation Act is applicable to her case and not Article 58 of the said Act. The learned Court of the Additional Deputy Commissioner (Judicial) on revision has held that the petitioner could not have raised the issue of applicability of Article 65 since the issue was raised only for the first time before the Revisional Court and accordingly, the revision petition was dismissed. The learned Court of the Additional Deputy Commissioner (Judicial) on revision has held that the petitioner could not have raised the issue of applicability of Article 65 since the issue was raised only for the first time before the Revisional Court and accordingly, the revision petition was dismissed. However, since a law point is involved, the same could be raised at any stage of the proceedings, even before the said Revisional Court. 11. Mr. Siddique has also submitted that against the order of the learned Additional Deputy Commissioner (Judicial) the petitioner has now come before this Court with an application under Article 227 of the Constitution of India which is the supervisory power of the High Court over the subordinate courts and therefore, it is not only a revisional power that could be exercised, but it is more than that as this power overrides even the power under Section 115 of the Code of Civil Procedure or the Rules for Administration of Justice and Police in the Khasi and Jaintia Hills, 1937. In fact, it is only because of the relevant rules of this High Court that an application under Article 227 have been registered as a Civil Revision Petition, but before the said rule, it is used to be registered as a Writ Petition. Notwithstanding the said nomenclature, the fact remains that the power under Article 227 can be exercised by this Court even in the present proceedings. 12. In support of his contentions, the learned Sr. counsel has cited the case of Punjab National Bank, Asset Recovery Management Branch v. Shivakeshav Pillai & Ors.: (2021) 4 MLJ 545 , para 2, wherein the Hon'ble Madras High Court has observed that the Court while exercising its plenary authority under Article 227 of the Constitution of India over the discharge of judicial functions by any Court or Tribunal within the territory, any order passed by such Courts or Tribunals is amenable to challenge under this jurisdiction and the question of maintainability does not arise. 13. The next case cited is the case of State of Jharkhand v. Surendra Kumar Srivastava & Ors.: (2019) 4 SCC 214 in Civil Appeal No. 21 of 2019 vide order dated 03.01.2019 at para 6.2, the learned Sr. 13. The next case cited is the case of State of Jharkhand v. Surendra Kumar Srivastava & Ors.: (2019) 4 SCC 214 in Civil Appeal No. 21 of 2019 vide order dated 03.01.2019 at para 6.2, the learned Sr. counsel has submitted that in this case, the Hon'ble Supreme Court has maintained that even in a case arising out of an order passed under Order 39 Rules 1 & 2 of the CPC, a writ petition under Article 227 challenging such an order is maintainable. 14. The case of Chhotanben & Anr. v. Kiritbhai Jalkrushnabhai Thakkar & Ors: (2018) 6 SCC 422 has been referred to as far as the issue of limitation is concerned. Leading this Court to the last part of para 11 and the first part of para 12, the learned Sr. counsel has submitted that the Hon'ble Supreme Court has held that 'In the context of totality of averments in the plaint and the reliefs claimed, which of the articles from amongst Articles 56, 58, 59, 65 or 110 or any other article of the Limitation Act will apply to the facts of the present case, may have to be considered at the appropriate stage'. This, would mean that the plaint as a whole has to be looked into when the issue of limitation is considered and not only if the plaintiff state that the cause of action arose on such and such date. 15. The learned Sr. counsel has also cited the case of 'Mechineni Chokka Rao & Ors. v. Sattu Sattamma: (2006) 1 ALD 116, para 12, 14, 15, 16, 17 & 18 wherein the Hon'ble Andhra Pradesh High Court dealing with the issue of limitation, has observed that if a suit is filed for declaration of title over immovable property and for consequential relief of either possession or injunction, Article 65 will apply and not Article 58. At para 14 to 18, the Hon'ble High Court has discussed the various orders passed by the High Court on this issue of limitation, submits the learned Sr. counsel. 16. Finally, the case of Parepalli Pallalayya v. Kasagani Ramulu & Ors : 2000(2) ALD 70 was referred to and para 14 was quoted which reads as follows: '14. At para 14 to 18, the Hon'ble High Court has discussed the various orders passed by the High Court on this issue of limitation, submits the learned Sr. counsel. 16. Finally, the case of Parepalli Pallalayya v. Kasagani Ramulu & Ors : 2000(2) ALD 70 was referred to and para 14 was quoted which reads as follows: '14. A look at Article 65 of the Limitation Act shows that the first limb of this Article entitles the plaintiff to file a suit for possession of immoveable property within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. The suit for possession would be decreed only when the Court records a finding in favour of the plaintiff that he is the owner of the property. In other words, when possession is sought, a decree for declaration of title can be claimed and granted if the suit is filed within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Then, how can it be said that when the plaintiff is in possession of his property, he shall be denied the right to claim a declaration of his title in case he does not file a suit for declaration of title within three years when the right is denied? It is also pertinent to note that a suit for claiming any interest in the immoveable property based on title can also be filed within 12 years when it is denied by the defendant. Article 65 of the Limitation Act is not confined only to suits for possession based on title. When the plaintiff is entitled for a suit for protecting his interest of whatever nature in the immoveable property based on title, the case would be covered under Article 65 of the Limitation Act and not under Article 58 of the Act, for the simple reason that Article 58 deals with suits relating to declarations, except when the declaration of title is sought in respect of immoveable property, as there is a specific provision, that is to say Part V of the First Division of the Schedule. I am, thus, in complete agreement with the view expressed by learned Brother P. Ramakrishnam Raja, J., (as he then was).' 17. Per contra, Mr K. Khan, learned Sr. I am, thus, in complete agreement with the view expressed by learned Brother P. Ramakrishnam Raja, J., (as he then was).' 17. Per contra, Mr K. Khan, learned Sr. GA submitting on behalf of the State respondent has submitted that the objection at the threshold is directly related to the provision of Rule 36-A of the said Rules for Administration of Justice and Police in the Khasi and Jaintia Hills, 1937, where the wordings of the provision is such that it speaks of the power of the High Court or the Deputy Commissioner, on application or otherwise, to call for the proceedings of any case decided by any officer subordinate to him. This clearly means that the revisional power can be exercised either by the Deputy Commissioner or the High Court but not by both simultaneously. Once the petitioner has chosen to accept the forum of the Deputy Commissioner to prefer the revision petition, it is now no longer allowed for her to come before the High Court on another revision petition since she has exhausted the statutory remedy available to her. 18. This being the case, the petitioner having exhausted the revisional remedy by approaching the Deputy Commissioner, cannot come before the High Court by way of yet another revision petition either under section 115 CPC or an application under Article 226 or 227. 19. Another contention raised by the learned Sr. GA is that on the issue of limitation, the petitioner has never raised the same before the Trial Court specifically that Article 58 of the Limitation Act is not applicable to the case of the petitioner/plaintiff nor has pleaded that Article 65 of the said Limitation Act is instead applicable. Even though this is a question of law, the same has to be founded on facts and ought to be raised before the court of the first instance and even if it was not done so, then before the Court of the Deputy Commissioner, the same could have been raised, but the petitioner has failed to do so inasmuch as no specific pleading was made about Article 58 or Article 65, but has merely said that Limitation Act is not applicable. This fact was brought out in the impugned order of the learned Additional Deputy Commissioner (Judicial) at para 54, where it was observed that 'The Revision Petitioner/Plaintiff in paragraph 7 of the Show cause which is in reply to paragraph 2 of abovementioned Misc. Case, before the learned Trial Court, has never denied or controverted the applicability of Article 58 of the Limitation Act nor has pleaded that Article 65 of the Limitation Act is applicable but merely argued that Limitation Act is not applicable. As such, it is seen that the petitioner/plaintiff has not even pleaded before the Ld. Trial Court the applicability of Article 65 of the Limitation Act 1963 Therefore, the petitioner raising the issue of limitation at this stage in a second revisional forum before the High Court is not permissible. 20. On the issue of facts, the learned Sr. GA has submitted that on perusal of the plaint filed by the petitioner/plaintiff what can be seen from the cause title as well as from the prayer is that the suit filed is a declaratory suit inasmuch as it was prayed that a declaration be made that the plaintiff/petitioner has right, title and interest over the suit land and also to declare that the defendants have no right, title or interest over the same. The cause of action admittedly arose on 04.03.2010. In this context, as far as limitation is concerned, Article 58 of the Limitation Act prescribed a period of limitation of 3 years to obtain any other declaration when the right to sue first accrues and since the suit was filed after a period of 6 years or so after the cause of action arose, then under section 3 of the Limitation Act, the court shall dismiss any suit filed after the prescribed period of limitation. 21. This Court has given due respect to the submission and contentions of the learned counsels for the parties herein and is in agreement with the learned Sr. GA that the issue of maintainability, vis-à-vis the applicability of an application under Article 227 of the Constitution of India is required to be answered firstly. 22. 21. This Court has given due respect to the submission and contentions of the learned counsels for the parties herein and is in agreement with the learned Sr. GA that the issue of maintainability, vis-à-vis the applicability of an application under Article 227 of the Constitution of India is required to be answered firstly. 22. Facts as narrated above need not be repeated, however what is seen is that on a suit filed by the petitioner before the Court of the Learned Assistant to the Deputy Commissioner, West Khasi Hills, the Trial Court deciding on the issue of limitation has come to a finding that the suit was barred by limitation and accordingly, the same was dismissed. 23. Taking recourse to the provision of Rule 36-A of the Rules for Administration of Justice and Police in the Khasi and Jaintia Hills, 1937, the petitioner then preferred a revision petition before the Court of the Additional Deputy Commissioner (Judicial), who vide the impugned order dated 15.02.2019 had dismissed the same, upholding the decision of the Trial Court that the suit was barred by limitation. 24. The petitioner being aggrieved by order dated 15.02.2019 has approached this Court with an application under Article 227 of the Constitution of India and the same was registered as a civil revision petition. This is the bone of contention between the parties when the learned Sr. GA has contended that the impugned order was passed in a revision petition and the application before this Court is also a revision petition and as such, there is no provision in law that there can be a second revision against an order passed in a revision petition. 25. The learned Sr. GA has also stressed on the fact that the petitioner on being aggrieved by the order passed by the Trial Court has preferred a revision petition before the Court of the Additional Deputy Commissioner (Judicial) under Rule 36-A which rule provides for preference of an appeal or revision from an order passed by the court of the Assistant to the Deputy Commissioner or High Court. This means that the petitioner is given an option to prefer a revision petition either before the Deputy Commissioner or the High Court and once an option to appear before the Deputy Commissioner has been elected, the petitioner having forgone the opportunity to come before the High Court in revision, he cannot file or prefer a revision petition before the High Court against the order of the Deputy Commissioner passed in revision. 26. This proposition is sound and logical as the language of Rule 36- A is very clear in this regard. However, what can be construed is that a revision petition before the High Court under this rule would be one which is preferred in the nature of Section 115 of the Code of Civil Procedure as was held in the case of Shyam Sunder Agarwal & Co. v. Union of India: (1996) 2 SCC 132 wherein at para 25 it was held that ' Revisional power under Rule 36-A of the High Court in such case therefore, must be exercised in conformity with the revisional power under Section 115 of the Code of Civil Procedure.' 27. What is noticed in this instant petition is that the petitioner has preferred an application under Article 227 which has been registered as a civil revision petition only as required under the Meghalaya High Court Rules, being Rule 2 of the Rules under Part-II and Chapter VII of the said Rules. This Court is in agreement with the petitioner that this is only an issue of nomenclature as in some other High Courts an application under Article 227 is also treated as a writ petition. Be that as it may, this Court would not involve itself with the technical aspect of the issue but would rather concentrate on the larger picture, that is, the import of an application under Article 227 of the Constitution of India. 28. In the case of Punjab National Bank Asset Recovery Management Branch (supra), the Hon'ble Madras High Court at para 2 of the same has observed as follows: '2. 28. In the case of Punjab National Bank Asset Recovery Management Branch (supra), the Hon'ble Madras High Court at para 2 of the same has observed as follows: '2. In the present case, since Article 227 of the Constitution of India has been invoked, which gives plenary authority to this Court to exercise superintendence over the discharge of judicial functions within the territory of the State, any order passed by any Court or Tribunal within the territory is amenable to challenge in this jurisdiction and the question of maintainability does not arise. It is, however, an entirely different matter that the Court may not entertain certain kinds of petitions because they are at the initial stage of the proceedings or the like. However, any order or action of any Court or Tribunal within the territory of the State is amenable to challenge under Article 227 of the Constitution and the question of maintainability does not arise.' 29. In the case of Black Diamond Trackparts Private Limited & Ors. v. Black Diamond Motors Private Limited: 2022 SCC Online Del 545, the Hon'ble Delhi High Court dealing with the issue of Article 227 at para 5 has observed as follows: '5. Before proceeding further, it may be noted that the power under Article 227 of the Constitution of India being one of judicial superintendence cannot be exercised to upset conclusions, howsoever erroneous they may be, unless there was something grossly wrong or unjust in the impugned order shocking the court's conscience or the conclusions were so perverse that it becomes absolutely necessary in the interest of justice for the court to interfere. The powers under Article 227 will be used sparingly. The Supreme Court has observed in India Pipe Fitting Co. v. Fakhruddin M.A. Baker, (1977) 4 SCC 587 and in Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566 that the supervisory jurisdiction conferred to the High Courts under Article 227 of the Constitution of India is limited to overseeing that an inferior court or tribunal functions within the limits of its authority and is not meant to correct an error, even if apparent on the face of the record. A mere wrong decision without anything more is not enough to attract this jurisdiction. A mere wrong decision without anything more is not enough to attract this jurisdiction. Even in the judgement relied upon by the learned senior counsel for the respondent/plaintiff, mentioned above, the Division Bench of this court has again cautioned that Article 227 of the Constitution of India be used sparingly in such suits which under the CPC are revisable and which remedy has been taken away by the Commercial Courts Act, 2015, in order to preserve the legislative intent and give effect to the purpose behind the Commercial Courts Act, of expeditious disposal of commercial suits.' 30. This Court is in respectful agreement with the proposition of law set forth in the above noted cases before the Hon'ble High Court of Madras as well as that of the Hon'ble Delhi High Court respectively. The petitioner having approached the Deputy Commissioner with a revision petition under Rule 36-A and thus having exhausted the option of a revision petition before this Court, there being no other alternative remedy, has rightly approached this Court with an application under Article 227 of the Constitution of India and as has been held in the case of Punjab National Bank Asset Recovery Management Branch (supra), the order of the Court of the Additional Deputy Commissioner (Judicial) is indeed amendable to challenge under Article 227 and accordingly, this Court holds that this instant petition is maintainable. 31. In the case of Mohd. Yunus v. Mohd. Mustaqim & Ors.: (1983) 4 SCC 556 at para 7 it was held as follows: '7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior court or tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.' 32. This Court then looking into the impugned order has to see whether the learned Additional Deputy Commissioner (Judicial) while passing the same has acted within jurisdiction or not. 33. The order of the learned Trial Court being brought before the learned Court of the Additional Deputy Commissioner (Judicial) in revision, the learned ADC has dealt with the issue of maintainability of the petitioner under Rule 36-A (supra) and has come to the conclusion that the revision petition is maintainable, taking into account the Notification No.LJ(A)77/2000/Pt.I/29 dated 03.05.2018 issued by the Secretary to the Government of Meghalaya, Law Department whereby the Orders by the Governor passed under rule 1-A of the Rules for Administration of Justice and Police in the Khasi and Jaintia Hills, 1937 etc., conferring powers as Additional Deputy Commissioner over the West Khasi Hills District upon the incumbent District and Sessions Judge has been issued, lends credence to the assumption of jurisdiction thereto. 34. On the issue of whether the suit is barred by limitation, the learned ADC have concurred with the findings of the learned Trial Court that since the suit is for mere declaration as is evident from the pleadings at paragraph 23 of the same which reads as ' However, since the instant suit is for mere declaration, fees as applicable is paid thereon.', the period of limitation as per Article 58 of the Limitation Act, 1960 is three years from the date the cause of action arose. Again, the petitioner/plaintiff has stated at paragraph 22 of the plaint that the cause of action arose on 04.03.2010 and is a continuing one, the suit apparently being filed in the year 2016, the period of three years having been crossed, the suit is indeed barred by limitation. 35. Again, the petitioner/plaintiff has stated at paragraph 22 of the plaint that the cause of action arose on 04.03.2010 and is a continuing one, the suit apparently being filed in the year 2016, the period of three years having been crossed, the suit is indeed barred by limitation. 35. This Court finds that there is no breach of jurisdiction by the learned ADC while passing the impugned order nor did he act in disregard to the principles of natural justice and the procedure adopted by him was in consonance with the established law, therefore, this Court has no reason to disturb the findings in the impugned order. 36. Accordingly, on merits, this petition fails and the same is hereby rejected. 37. Petition disposed of. No costs.