KA BRILL KHARKONGOR JAID DKHAR Vs. KA JUNGIEM KHARKONGOR AND ORS.
HIGH COURT OF GAUHATI
Ka Brill Kharkongor Jaid Dkhar
Ka Jungiem Kharkongor And Ors.
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K.Lahiri, J. -
(1.)THIS is an application, under Rule 36 of the Rules for the Administration of Justice and Police in Khasi and Jaintia Hills, 1937, as amended, for short "the Rules", directed against the judgment and order dated 10.7.1978 passed by Shri G.S. Choubey, Additional Deputy Commissioner, Khasi Hills, Shillong in Misc. Civil Appeal No. 6 (T) of 1976 allowing the appeal and setting aside the decree of the trial Court holding that it had no jurisdiction to try the suit with a direction to return the plaint to the Plaintiff for presentation to the appropriate Court.
(2.)THE relevant compact facts leading upto the present petition may be summed up as follows:
The Petitioner -Plaintiff instituted a vide suit against the Defendants opposite parties. She also filed an application for permanent injunction under Order 39 Rule 1 of the Code of Civil Procedure. The trial Court printed ad -interim injunction against which the Defendants preferred an appeal and the appellate Court on admission of the appeal called for the records. However, on 30.5.1974, during the pendency of the said appeal the main suit came up for hearing. It appears clear that the learned lawyer for the Defendants instructed the Defendants that as the records of the suit had been called by the appellate Court in the appeal against the order of injunction the Defendants need not attend Court or that date. However, the suit was called for hearing, and, as the Defendants were absent an ex -parte decree was passed against the Defendants, who preferred an appeal for setting aside the ex -parte decree. It was registered as Misc. Civil Appeal No. 10(T) of 1974, Sri S. Phukan, Additional Deputy Commissioner, Khasi Hills, Shillong by his order dated 13.2.76 held that the Defendants ought to have first applied to the trial Court for setting aside the decree under Order 9 Rule 13 and, thereafter should have come up before the appellate Court in appeal. Learned Judge held that the appeal was incompetent and directed the Defendants to prefer an application under Order 9 Rule 13 to the trial Court. We fail to fathom the reasoning of the learned Judge. He had undoubted power to entertain the appeal against the ex -parte decree. He failed to exercise the jurisdiction vested in him by law and held that the appeal was premature and incompetent. If the application under Order 9 Rule 13 was allowed the question of preferring any appeal could not have arisen. On the other hand, on dismissal of the prayer for setting aside the ex -parte decree under Order 9 Rule 13 the appeal would have been against a distinct and separate order rejecting the prayer for setting aside the decree. However, we do not propose to and in fact cannot enter into the merits of the decision as it has become final. We say this much and no further that by virtue of the said order learned Judge caused great prejudice to both the parties. Learned Counsel for both parties submit that the appellate order was palpably illegal and the learned Judge should have disposed of the appeal on merits. In consequence of the erroneous order both the parties have suffered large expenses, wasted valuable time and energy, passed many anxious years. We recall a legal maxim "Actus curiae neminem gravabit", which rule has universal application. It means, that the act of the Court should not prejudice any one. It must be rectified. Indeed, the cardinal principle of administration or justice is that an erroneous act of, the Court should not prejudice any party. (Vide, Mulholland and Tedd v. Baker, (1939) 3 All E.R. 253 (255). The principles are applicable to and followed in India. In Arun Chandra Das Mazumdar v. Wazid Ali and Anr. : 1978 Cri. L.J. 1184 (1188) (Gauhati) this Court applied the principle. However, the appellate order has become final and as such it cannot be interferred with.
Thereafter, on 20.2.76 at directed by the appellate Court the Defendants filed an application under order 9 Rule 13 of "the Code". The trial Court rightly held that against an ex -parte decree the Petitioner could file an appeal or alternatively could have made an application under Order 9 Rule 13 of the Code. However, learned Assistant to the Deputy Commissioner misconceived the appellate order and treated it as an order of disposal of the appeal on merits, and, accordingly held that he had no jurisdiction to entertain the application under Order 9 Rule 13 after the appeal had been disposed of by the appellate Court.
(3.)THE finding of the trial Court are erroneous on the ground that the appeal was never disposed on merit. The appellate Court had held that the appeal was premature and not competent as such. Secondly, the appellate Court had directed the Defendants to prefer an application under Order 9 Rule 13 of the Code, which was binding on the trial Court. As such, the order of the trial Court not to entertain the application was in defense of the order of the superior Court and illegal as such. When the appeal was not disposed on merit, the trial Court was bound to entertain the application under Order 9 Rule 13 and dispose the same. At any rate, the appellate Court directed the Defendant to file such an application to the trial Court. The said order of the appellate -Court was binding on it. Be that as it may the trial Court held that it bad no jurisdiction to entertain the application under Order 9 Rule 13 and rejected the petition on 13.12.1976. Against the said order refusing to entertain the application, the Defendants opposite parties preferred an appeal. The tragedy of errors was further compounded by the appellate Court. The appellate Court did not consider the legality or validity of the impugned order refusing to entertain the application under Order 9 Rule 13 but entered into the merits or the suit and hold that the trial Court had no jurisdiction to entertain the suit and render the ex -parte decree on ground of lack of territorial jurisdiction of the trial Court.
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