J U D G M E N T A N D O R D E R (ORAL)

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH: AIZAWL Sh. Rev. Thangluaia S/o L.K. Siama(L) Bawngkawn, Aizawl. -Vs- C.R.P. (Art. 227) 12 of 2012 Petitioner/ Respondent in RFA No. 21/12. Smt. Janet Laldinliani D/o Smt. Lalzuali (L) Bawngkawn, Aizawl... Respondent/ Appellant in RFA No. 21/12. B E F O R E THE HON BLE MR.JUSTICE C.R. SARMA For the petitioner :- Mr. Nelson Sailo, Sr. Advocate, Ms. Vanhmingliani, Advocate. For the respondent :- Mr. L.H. Lianhrima, Advocate. Date of hearing : Date of Judgment & Order : J U D G M E N T A N D O R D E R (ORAL) Heard Mr. N. Sailo, learned senior counsel assisted by Mrs. Dinari T. Azyu, learned counsel appearing for the petitioner. Also heard Mr. L.H. Lianhrima, learned counsel appearing for the respondent. C.R.P. (Art. 227) 12 of 2012 Page 1 of 7

2 2. By this revision petition, filed under Article 227 of the Constitution of India read with section 151 of the CPC, the petitioner, who is the respondent in RFA No. 21/2012 has challenged the order dated 19 th June, 2012 passed by the learned Addl. District and Session Judge-I in RFA No. 21/ The respondent, as petitioner, filed heirship certificate being Case No. SDCC/HC/- 416/2001, seeking heirship in respect of land covered by Patta Nos. L.S.C. 116/1974, L.S.C. 792/1985, L.S.C. 1864/1984, L.S.C. 1865/1984, L.S.C. 28/1977 and L.S.C. 3007/1989, in the court of Subordinate District Court Court, Aizawl. The Subordinate District Council Court by order dated 22 nd August, 2001, issued heirship certificate in favour of the petitioner. Subsequently, one of the stepdaughters of the petitioner, who is the respondent in this revision petition, after seven years of issuing the said certificate, preferred an appeal being R.F.A. No. 20/2008 before the District Council Court, Mizoram. In view of coming into effect of the Mizoram Civil Courts Act, 2005, the RFA No. 20/2008 preferred by the respondent was transferred to the court of Senior Civil Judge. The learned Senior Civil Judge, Aizawl, by his judgment and order, dated , passed in R.F.A. No. 20/2008, while allowing the appeal ex-parte declined to remand the matter to the original court and directed the parties to file fresh suit or case in appropriate court of law. 4. Aggrieved by the said order, the present petitioner had approached the learned Senior Civil Judge, Aizawl, by filing an application under Order 9 Rule 13 CPC, for setting aside the ex-parte judgment and order dated After receipt of the said application, the learned Senior Civil Judge, by his judgment and order dated set aside his earlier judgment and order dated passed in R.F.A. No. 20 of 2008 and reopened the appeal. Subsequently, by judgment and order, dated , passed in R.F.A. No. 20/2008, the learned Senior Civil Judge, after hearing both the parties, dismissed the R.F.A. No. 20/2008 on the ground that the appeal was barred by Law of Limitation. C.R.P. (Art. 227) 12 of 2012 Page 2 of 7

3 5. Aggrieved by the said judgment and order of dismissal, the present respondent, who was the respondent in the said RFA, as appellant, has again preferred a First Appeal before the District Judge, Aizawl, challenging the judgment and order, dated , passed in R.F.A. No. 20/2008. This appeal preferred by the respondent has been registered as R.F.A. No. 21/2012 and the learned Addl. District Judge-I, Aizawl by the impugned order dated 19 th June, 2012, while admitting the appeal, issued notice to the respondent i.e. the present petitioner and in the interim, stayed the operation of the impugned judgment and order dated aforesaid. 6. Aggrieved by the said order dated , the respondent, as petitioner, has come up with this petition invoking the jurisdiction of this court under Article 227 of the Constitution of India. 7. The learned senior counsel appearing for the petitioner, referring to the provision of section 17(2) of the Mizoram Civil Courts Act, 2005, has submitted that no first appeal can be preferred against the judgment and order passed in a first appeal and as such, the learned Addl. District Judge, Aizawl committed gross illegality and jurisdictional error by entertaining the R.F.A. No. 21/2012 preferred against the judgment and order passed in R.F.A. No. 20/2008. The learned senior counsel has submitted that the R.F.A. No. 20/2008, being preferred against the original judgment and order passed by the Subordinate District Council Court, the respondent, if aggrieved by the judgment and order passed in the said RFA No. 20/2008, ought to have preferred a second appeal before the High Court. 8. The learned senior counsel has submitted that the learned Addl. District Judge, Aizawl has committed illegality and jurisdictional error by entertaining another first appeal against the judgment and order passed in RFA No. 20/2008. It is submitted that the said illegality is to be corrected by exercising jurisdiction vested by Article 227 of the C.R.P. (Art. 227) 12 of 2012 Page 3 of 7

4 Constitution of India. The learned senior counsel has relied on the decision held in the case of Surya Devi Rai vs- Ram Chander Rai & Ors. reported in (2003) 6 SCC Mr. L.H. Lianhrima, learned counsel appearing for the respondent referring to the case of Shiv Shakti Coop. Housing Society, Nagpur Vs- Swaraj Developers and others reported in (2003) 6 SCC 659 in paragraph 32 has submitted that the impugned order being an interlocutory one, which did not attend finality, the present revision petition filed by the petitioner is not maintainable. 10. Section 17 (1) & Section 17(2) of the Mizoram Civil Courts Act, 2005 reads as follows :- (1) Appeals from the decrees and orders passed by a Court of District Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie to the High Court. (2) Appeals from the decrees and orders passed by a Court of Senior Civil Judge in original suits and proceedings of civil nature, shall when such appeals are allowed by law, lie- (a) to the Court of the District Judge of that district when the amount or value of the subject matter of the original suit or proceedings is less than five lakhs of rupees or such other sum as the High Court may, from time to time, specify. (b) to the High Court, in other cases. A careful reading of the section 17 aforesaid clearly indicates that no second first appeal can be preferred against the judgment and order passed in the earlier first appeal. C.R.P. (Art. 227) 12 of 2012 Page 4 of 7

5 By entertaining the said appeal against the order of an appellate court and passing the impugned order, the learned Addl. District Judge acted without jurisdiction, resulting miscarriage of justice. In the case of Surya Devi Rai vs- Ram Chander Rai (supra), the Supreme Court observed :- 22. Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with certain specific powers by clauses (2) and (3) of Article 227 with which we are not concerned hereat. It is well settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar. C.R.P. (Art. 227) 12 of 2012 Page 5 of 7

6 34. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 CPC, and is available to be exercised subject to rules of self-discipline and practice which are well settled. 11. In the case of Shiv Shakti (supra), the Supreme Court observed:- 32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is yes then the revision is maintainable. But on the contrary, if the answer is no then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject-matter of revision under Section There can be no dispute that no revision under section 115, CPC can be entertained against an interim order, which has not attained finality. In the present case, the petitioner has invoked the jurisdiction under Article 227 of the Constitution of India. In the case of Surya Devi (supra), the Supreme Court has clarified that the revisional C.R.P. (Art. 227) 12 of 2012 Page 6 of 7

7 jurisdiction of the High Court does not take away the constitutional jurisdiction of the High Court to issue a writ of certiorari to civil court nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled down. Therefore, there is no difficulty in understanding that the jurisdiction vested by the Article 227 of the Constitution of India can be exercised in appropriate cases to prevent miscarriage of justice, even by interfering with an interim order. If the interim order passed in the present case is allowed to continue then there will be infringement of the statutory provision as prescribed by section 17 of the Mizoram Civil Courts Act, 2005, inasmuch as no first appeal can be entertained against the judgment and order, passed in a first appeal. The continuance of the said interim order passed in the RFA No. 21/2012 will amount to gross illegality and miscarriage of justice. 13. Carefully perusing the entire facts and circumstances of this case, it is found that the learned Addl. District Judge committed jurisdictional error by entertaining a first appeal against the judgment and order in a first appeal i.e. R.F.A. No. 20/2012. By entertaining RFA No. 21/2012 against the judgment and order passed in R.F.A. No. 20/2012, the learned Addl. District Judge, Aizawl has violated the provisions of section 17(2) of the Mizoram Civil Courts Act, Having considered entire aspect of the matter, I find it to be a fit case to interfere with the impugned order, in exercise of jurisdiction, vested by Article 227 of the Constitution of India. Accordingly, I find sufficient merit in this petition. The impugned order is set aside. However, the concerned party may approach the appropriate forum by filing appropriate application/appeal, if so advised, as per law. JUDGE Sushil C.R.P. (Art. 227) 12 of 2012 Page 7 of 7