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Hranga of First Assam Rifles Vs. Nui of Kulikawan - Court Judgment

LegalCrystal Citation
Subject;Limitation
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 139 (H) of 1955
Judge
ActsLimitation Act, 1908 - Sections 5; Lushai Hills Autonomous District Administration of Justice Rules, 1953 - Rules 6, 30 and 46
AppellantHranga of First Assam Rifles
RespondentNui of Kulikawan
Appellant AdvocateP. Chaudhuri and J.P. Bhattacharjee, Advs.
Respondent AdvocateN.M. Dam, Adv.
DispositionPetition allowed
Prior history
Sarjoo Prosad, C.J.
1. This application is under Rule 6 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954, read with Article 227 of the Constitution of India. It is directed against an order of the District Council Court, Aijal dated 16-1-1954, passed in Civil Appeal No. 68 of 1955 dismissing the appeal of the petitioner on the ground that it was time-barred.
2. The petitioner is a Sepoy in the First Assam Rifles and belongs to the Lushai tribe. His brother Tha
Excerpt:
.....in this area, yet the court below should have acted on the principles of justice, equity and good conscience in condoning this delay. district council courts and the additional subordinate district council courts shall adjudicate according to law, justice, equity and good conscience consistent with the circumstances of the case. it would have been better if the district council had framed the rules accordingly and made a provision to that effect. but when there is no such provision made, there is no reason why the courts should not apply the principles of justice, equity and good conscience in dealing with a matter of this kind. as provided by rule 46 of the rules, the court was required to act on the principles of justice, equity and good conscience in all matters of adjudication...........in this area, yet the court below should have acted on the principles of justice, equity and good conscience in condoning this delay. he draws our attention to rule 46 of the rules wherein it is provided that in all civil cases the district council court, the subordinate. district council courts and the additional subordinate district council courts shall adjudicate according to law, justice, equity and good conscience consistent with the circumstances of the case. it is unfortunate that in rule 30 itself, there is no provision made for such class of cases where on account of sufficient cause a party is prevented from filing an appeal within the period specified. it would have been better if the district council had framed the rules accordingly and made a provision to that effect......
Judgment:

Sarjoo Prosad, C.J.

1. This application is under Rule 6 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954, read with Article 227 of the Constitution of India. It is directed against an order of the District Council Court, Aijal dated 16-1-1954, passed in Civil Appeal No. 68 of 1955 dismissing the appeal of the petitioner on the ground that it was time-barred.

2. The petitioner is a Sepoy in the First Assam Rifles and belongs to the Lushai tribe. His brother Thanga died and on his death the opposite party who is the widow of Thanga filed a suit in the Subordinate District Court claiming his properties on the basis of some agreement by virtue of which she alleged that as the widow she was entitled to the properties left by her deceased husband. The petitioner on the other hand claims to inherit his brother's properties according to the customary law.

The Subordinate District Court by its judgment dated 16-4-55 upheld the claim of the opposite party and directed that the gun belonging to late Thanga should go to the petitioner, while all the other properties should devolve on the opposite party. At the time when the judgment was delivered, it is not disputed, that the petitioner was not present in Court, but was away to the Naga Hills on duty in connection with certain operations. He returned to Aijal on casual leave and then he says that he came to know of the judgment passed in the case, and thereafter he obtained a copy of the judgment and preferred an appeal to the District Council Court on 5-7-1955,

The Court dismissed the appeal on the ground that it was time-barred. Rule 30 of the Rules of the Lushai Hills Autonomous District (Administration of Justice) Rules, 1953, provides for an appeal to the District Council Court from the decision of a Subordinate District Council Court in civil or criminal cases, provided such an appeal is accompanied by a copy of the order appealed against and a statement of the grounds of appeal is filed within 60 days of the date of order, excluding the time needed for obtaining a copy of the order appealed against. The District Council Court is of the view that the appeal was clearly filed beyond the period allowed under Rule 30 of these rules. In fact on the face of these rules, it has not been argued before us that the appeal was within time.

3. Mr. Chaudhuri on behalf of the petitioner, however, contends that in the circumstances the delay in filing the appeal should have been condoned as there was sufficient cause for the delay as explained by the petitioner. He submits that although Section 5 of the Limitation Act in terms may not apply to cases arising in this area, yet the Court below should have acted on the principles of justice, equity and good conscience in condoning this delay.

He draws our attention to Rule 46 of the Rules wherein it is provided that in all civil cases the District Council Court, the Subordinate. District Council Courts and the Additional Subordinate District Council Courts shall adjudicate according to law, justice, equity and good conscience consistent with the circumstances of the case. It is unfortunate that in Rule 30 itself, there is no provision made for such class of cases where on account of sufficient cause a party is prevented from filing an appeal within the period specified. It would have been better if the District Council had framed the Rules accordingly and made a provision to that effect.

But when there is no such provision made, there is no reason why the Courts should not apply the principles of Justice, equity and good conscience in dealing with a matter of this kind. The facts stated by the petitioner in his application are not disputed and if those facts are correct, there is no doubt that there was sufficient justification for the Court to condone the delay and to admit the appeal. As provided by Rule 46 of the Rules, the Court was required to act on the principles of justice, equity and good conscience in all matters of adjudication. Mr. Dam appearing on behalf of the opposite party contends that Rule 46 should not be extended to apply to this case.

According to him the rule has no application to an earlier stage of the case, but must be held to apply only to the stage of actual decision on merits, I do not find anything in Rule 46 to restrict its operation to the stage of adjudication on the merits of the claim. The rule is wide enough and in my opinion, applies to all stages of adjudication by the District Council Courts concerned, and in all these stages the rule enjoins that the Court should act on the principles of justice, equity and good conscience. In the circumstances of the present case we feel that the petitioner was entitled to condonation of delay on account of the facts stated by him.

Even if Rule 46 had not been there, we would have been justified in making this appropriate order under Rule 6 of the Rules on the authority of which this petition has been presented. We are, therefore, of the opinion that the application should be allowed and the appeal should be admitted by the Court below to be disposed of on merits according to law. An attempt was made on behalf of the parties to argue on the merits of the case, but we do not feel inclined to express our opinion on the point. We leave it to the Court of appeal below to decide the questions raised according to law.

H. Deka, J.

4. I agree.


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