Sankur Singh Dkhar and Others vs Tokonath Roy and Another

J. Sangma, J.—This Civil Revision under Clause 6 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954, by the Defendants, is against the order dated 23.12.91 passed by Shri H.M. Dkhar, Judge, District Council Court, Shillong, in Misc. Civil Appeal No. 8/91. By this order the learned Judge admitted the appeal against the interlocutary order passed earlier on the same by the Presiding Officer of Subordinate District Council Court, Shillong, in Misc. Case No. 9(T)/91. The learned Presiding Officer rejected the Plaintiffs'' petition for temporary injunction in regard to T.S. No. 11/91.

On admitting the appeal from the order of the Presiding Officer of Sub Court, the learned Judge granted exparte injunction before issue of notice to the Defendant-Respondent. By this revision the Defendants have questioned this order. At the time of admitting the revision this Court by order dated 13.8.92 stayed the order passed by learned Judge District Council Court. So, the injunction has not operated.

In this revision Mr. Ajar, learned Counsel for the Petitioners has submitted that the learned Judge has acted with material irregularity In granting the ex-parte injunction before issue of notice to the Defendants, because the Trial Court dismissed the Plaintiffs'' petition for temporary injunction.

Rule 36A of the Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills, 1937, which provides for appeal and revision from the decision/order of the Courts constituted by the State Government says:

36A. Appeal and Revision.--The High Court or Deputy Commissioner may, on application or otherwise, call for the proceedings of any case decided by any officer subordinate to him and pass such orders as he may deem fit.

The Deputy Commissioner shall be a court of Appeal from a decision of an Assistant. The High Court shall be a court of appeal from an original decision of the Deputy Commissioner if the value of the suit be rupees five hundred or over, or if the suit involve a question of tribal right or customs, or of right to, or possession of, immovable property: provided that the Petitioner of appeal accompanied by a copy of the order appealed against and by a clear statement of the grounds of appeal be filed within 30th day from the date of decision including the time required for obtaining a copy of the decision. An appeal which lies to the High Court may be presented to the Deputy Commissioner, who shall, if it be in order and presented in due time, endorse upon it the date of receipt and transmit it with the records of the case to the High Court.

The decree of the appellate court shall be transferred to the court passing the original order for execution as decree of its own.

The first paragraph is a provision for revision and the second paragraph is for appeal Clause 3 and Clause 6 of the aforesaid High Court Order, 1954 provide for appeal and revision respectively from the decision/order of the Courts constituted by District Council under the provision of Sixth Schedule to the Constitution. Clause 6 says:

Revision--The High Court may, on application or otherwise, call for the proceedings, of any civil or Criminal case decided by or pending in any Court in the autonomous district constituted under the Provisions of Sub paragraph (1) and (2) of paragraphs 4 of the Sixth Schedule to the Constitution (hereinafter called the Court of the District Council) and pass such orders as it may deem fit.

In my opinion, Rule 36A of the Rules of 1937 and Clause 6 of the High Court Orders, 1954 (supra) are analogous to Section 115, CPC to the principle enumerated in this Section (115) of would apply to first paragraph of Rule 36A of 1937 Rules and Clause 6 of the High Court orders 1954. But in Ka Idis Mary v. Ka Therit Lyngdoh AIR 1969 A&N 92 this Court in interpreting Rule 36A held:

High Court has every wide powers in the matter of revision under this Rule. It can go into facts like an appellate court. There is no reason to make a distinction between revisional power of the High Court in Criminal matter and Civil matters respectively.

In the instant case, the trial court did not give ad interim injunction and dismissed the Plaintiffs petition for temporary injunction. The Plaintiff preferred and the appeal before the learned Judge, District Council Court from that order of the Trial Court. Therefore, it was highly improper and against the balance of justice for the learned Judge of the District Council Court to grant ad interim injunction on admitting the appeal. In such a case, an appellate court could give the injunction, if it warranted on the merits, only on final hearing of the appeal before it. I therefore, find that in the instant case the learned Judge of the District Council Court, by granting an exparte ad interim injunction at the time of admission, has committed material irregularity which resulted in injustice to the Defendant. The Plaintiff having instituted the suit in 1981 it is now 13 years old; so by now a temporary injunction cannot be granted.

In the result, the revision is allowed and the order dated 23.12.91 passed by the learned Judge of the District Council Court is wholly set aside. No costs.

The learned District Council Court shall send back the records to Presiding Officer of the Subordinate Court who will now try and dispose of the suit without further delay.