Chander Sen vs Akhtyar Mani and Another

Chet Ram Thakur, J.—This petition under Article 227 of the Constitution of India is directed against the order, dated 20th January, 1973, passed by the Sub-Divisional Magistrate, Pooh, Kinnaur district whereby he dismissed in default the revision petition of the present Petitioner before this Court against the order of the Gram Panchayat, Kanam, fixing Rs. 50/-per month as maintenance to Akhtyar Mani, who claimed herself to be the wife of the present Petitioner.

The Petitioner contends that the revision petition before the Sub-Divisional Judge was fixed for hearing on the 16th November, 1972, on which date he could not appear and as such he sent a telegram and it appears that the learned Magistrate had fixed 20th of January, 1973, as date of hearing, but the intimation of that date was not received by the Petitioner, and, therefore, the petition was dismissed. When in March the Petitioner went to the Court, he found that his application had been dismissed and accordingly he filed an application for restoration on 14th March, 1973, which was received by the Reader of the Court. He made an endorsement but on 6th of April, 1973, when the Petitioner again went to the Court to enquire about his application, the Respondent No. 2, i.e., the Sub-Divisional Magistrate returned the application informing him that the same relates to the High Court and the Reader scored off the endorsement and returned the application to the Petitioner. These facts have been supported by an affidavit of the Petitioner and no reply thereto has been filed by the Respondents controverting these facts. It is stated by the learned Counsel for the Petitioner that the case was adjourned from 16th November, 1972 to 20th January, 1973, and this clearly meant that the telegram which he had sent for the adjournment of the case from 16th November, 72, to some other date and that is why the 20th January, 1973, had been fixed and that he was not intimated of this date and it was only in March when he went to the Court he learnt that his petition had been dismissed. He could not go earlier because it is a snow-bound area and, therefore, earlier to 14th March, 1973, he could not reach the Court and this averment of his remains uncontroverted.

Now the question is whether the petition could be dismissed for default. There is no provision in the Code of Criminal Procedure, whereby any criminal proceedings can be dismissed for default much-less a revision petition and which a Court has to decide on the basis of the facts on the record if the parties are not before the Court. Therefore, prima facie the order is wrong.

The Nyaya Panchayat undoubtedly has been given powers u/s 225 of the Himachal Pradesh Panchayati Raj Act (hereinafter referred to as the Act) to dismiss the suit, case or proceeding or pass such order as it may deem fit if the applicant fails to appear after having been informed of the time and place fixed for hearing. But there is no such power given to the Sub-Divisional Judge to dismiss any revision in default. Section 238 of the Act makes a provision for revision and under Sub-section (2) of this Section, the Sub-Divisional Judge is given power to call for the record of the case, suit or proceeding, as the case may be, from the Nyaya Panchayat either suo moto or on an application of any party if there has been any miscarriage of justice or if there is an apprehension of miscarriage of justice in any case, suit or proceeding before the Nyaya Panchayat. From this it cannot be inferred that the Sub-Divisional Judge can dismiss any proceeding or revision petition filed before him in default rather it is incumbent upon him to have perused the record if the parties were absent and give his independent findings.

Learned Counsel for the Respondents contends that no revision would lie against an order passed u/s 238 of the Act in respect of an order granting or refusing maintenance because according to him in order to invoke the powers u/s 227 of the Constitution the Court must be subordinate to the High Court. The learned Counsel has relied upon Shri Padam Singh v. Smt. Kanta 1973 ILRHS 993. But, in my opinion, this case has got no bearing on the facts of the present case. Because the question involved in that case was whether the Magistrate had no jurisdiction to entertain an application u/s 488 of the Code of Criminal Procedure, when Section 203(2) of the Act gave exclusive jurisdiction for the same to the Nayaya Panchayat. The Court in repelling the contention held that the Legislature did not oust the jurisdiction of the Magistrate to act u/s 488 of the Code while enacting the above section of the Act and that the Himachal Pradesh Act gives a concurrent jurisdiction for disposing of such application and granting allowance not exceeding Rs. 100/-per month to the Nyaya Panchayat.

It cannot be disputed that the Sub-Divisional Judge even if not subordinate court to the High Court, and it is a tribunal, still it will be amenable to the jurisdiction of the High Court for exercising the power of superintendence over all Courts and tribunals when the Court finds and feels that there is a patent error on the face of the record of the case o- that there is a miscarriage of justice. In the instant case it is admitted by the learned Counsel for the Respondents that there is no power vested in the Sub-Divisional Judge to dismiss any revision-petition in default. He has even suo moto power to exercise his revisional jurisdiction when he apprehends any failure of justice or miscarriage of justice in any case or in any proceeding pending before a Nyaya Panchayat.

According to Rekhu and Anr. v. Emperor AIR 1944 Lah 218 if any special Court set up in the province does not conduct itself in accordance with the Chapter which creates it and acts in a manner not authorised by law, the High Court has jurisdiction to set the matter right even if its jurisdiction to interfere is excluded by the statute which sets up the special Courts. The principle applies not only to a case of civil nature but also to criminal cases as is clear from the wording of S. 561A, Criminal P.C. A Magistrate acting u/s 39, Punjab Panchayat Act, functions judicially and not administratively and this being so, its functions at once become open to the revisional jurisdiction of the High Court by virtue of the provisions of the Code of Criminal Procedure. If on an examination of the record therefore, it appears to the High Court that the order of the Magistrate, who has functioned u/s 39, Panchayat Act, is not in consonance with law, the High Court can interfere in revision. This authority, in my opinion, fully applies to the facts of the present case because in the present case the Magistrate has acted illegally in the exercise of the jurisdiction vested in him. Therefore, if there is any error apparent on the face of the record this Court under its power of superintendence under Article 227 of the Constitution has got the jurisdiction to correct the error and set the subordinate court or the authority or the tribunal within its bounds.

In these circumstances the order which is patently illegal is hereby set aside and the case is sent back to the Sub-Divisional Judge who will dispose of the case in accordance with law at an early date.

Petition allowed and case remanded.