SHRI WESTARLY DKHAR & ORS.versusSHRI SEHEKAYA L YNGDOH

                         [2015] 1 S.C.R. 794


A                SHRI WESTARLY DKHAR & ORS.
                                 v.
                   SHRI SEHEKAYA LYNGDOH
                  (Civil Appeal No. 1232 of 2015)

                         JANUARY 28, 2015
B
          [J. CHELAMESWAR AND R.F. NARIMAN, JJ.]

         United Khasi-Jaintia Hills Autonomous District
    (Administration of Justice) Rules, 1953: rr.28, 29 and 47 - Ex
C   parte ad interim injunction passed by the Subordinate District
    Council Court - Appeal thereagainst allowed by District
    Council Court and injunction order set aside - High Court set
    aside the appellate order holding that since an appeal had
    been filed within 30 days of the ex parte ad interim injunction,
D   it would not be maintainable under the CPC - Applicability
    of CPC to these tribal areas challenged - Held· r.28 provides
    right to appeal in all civil cases from all decisions of
    Subordinate District Council Court - An appeal is provided
    as a matter of right ulr.28 and only the spirit of the CPC
E   applies - High Court unfortunately failed to refer to r.28 and
    applied the letter of Or. 39 Rule 3A rlw Or. 43 of the CPC -
    This was the basic error in the judgment - Appeal was
    maintainable since r.28 provided for such appeal without any
    requirement that ordinarily it should be filed only after 30 days
F   - Code of Civil Procedure, 1908.
         Allowing the appeal, the Court

       HELD: 1. Rules 28, 29 and 47 of the United Khasi-
  Jaintia Hills Autonomous District (Administration of
G Justice) Rules, 1953 provide that an appeal is provided
  as a matter of right from all "decisions" of a Subordinate
  District Council Court to the District Council Court. An
  interim order is a "decision" for. the purpose of these
  Rules. Further, under Rule 47, in civil cases, these courts
H                                 794
    WESTARLY DKHAR v. SEHEKAYA LYNGDOH                   795


shall be guided by the spirit but not bound by the letter       A
of the Code of Civil Procedure in all matters not covered
by customary laws. [Para 8] [799-F-G]

     2. The Division Bench has unfortunately failed to
refer to Rule 28 of the 1953 Rules and has applied the
                                                                B
letter of Order 39 Rule 3A read with Order 43 of the CPC.
This is the basic error in the judgment. On the facts of this
case, the appeal becomes maintainable because Rule 28
of the 1953 Rules provides for such appeal without any
requirement that ordinarily it should be filed only after 30
days. Even otherwise, the judgments relied upon by the          C
respondent state that such appeal is maintainable under
the CPC, but the court may relegate the appellant to the
alternative remedy provided - an application to vacate
the stay within 30 days. This in turn does not go to the
maintainability of the appeal but only goes to whether          D
discretion ought to be exercised against the appellant if
the provisions of Order 39 Rule 3A have been followed.
[Para 11] [807-D-G]

    Venkatasubbiah Naidu v. S. Chellappan & Ors. (2000)         E
7 SCC 695: 2000 (3) Suppl. SCR 303; Innovative Pharma
Surgicals v. Pigeon Medical Devices Pvt. Ltd. & Ors. AIR
2004 AP 310; State of Nagaland v. Ratan Singh Etc. (1966)
3 SCR 830; Longsan Khongngain v. State of Meghalaya
(2007) 4 GLT 938 - relied on.
                                                                F
       A. Venkatasubbiah Naidu v. S. Che/lappan & Ors.
(2000) 7 SCC 695:2000 (3) Suppl. SCR 303; Mis Maria
Pl as to Pack (P) Ltd. v. Managing Director, U. P. Financial
Corporation, Kanpur & Ors. AIR 2004 ALL. 31 O - held
inapplicable.                                                   G
                    Case Law Reference :
    2000 (3) Suppl. SCR 303      relied on         Para 6
    AIR 2004 AP 310              relied on        Para 6        H
    796       SUPREME COURT REPORTS                [2015] 1 S.C.R.


A         (1966) 3 SCR 830             relied on         Para 8
          (2007) 4 GLT 938             relied on         Para 9
          2000 (3) Suppl. SCR 303      held              Para 10
                                       inapplicable
B         AIR 2004 ALL. 310            held              Para 10
                                       inapplicable

        CIVIL APPELLATE JURISDICTION : Civil Appeal No
    1232 of 2015.
c
        From the Judgment and Order dated 27.04.2012 of the
    High Court of Gauhati, Shillong Bench at Shillong in Civil
    Revision Petition No. 18 (SH) of 2010.

      H. S. Thangkhiew, Joseph Aristotle S., Philemon
D Nongbno, A. Rohen Singh for the Appellant.

          Dushyant Parashar for the Respondent.

          The Judgment of the Court was delivered by

E         R.F.NARIMAN, J. 1. Special leave granted.

         2. The instant appeal by way of a Special Leave to Appeal
    has been filed against the judgment and final order dated April
    27, 2012 passed by the High Court of Gauhati, Shillong Bench
F   at Shillong in Civil Revision Petition No. 18 (SH) of 2010 filed
    by the Respondent.

       3. The appeal arises out of an ex-parte ad-interim
  injunction passed by the Subordinate District Council Court in
  a suit instituted by the Respondent, which is registered as Title
G Suit No. 16 of 2009. On 30th September, 2009, an ad-interim
  ex-parte injunction was granted by the Subordinate District
  Council Court, in the following terms:

          "On careful perusal of the same, I am satisfied that there
H         is an urgency in the matter for restraining the opposite
    WESTARLY DKHAR v. SEHEKAYA LYNGDOH                      797
              [R.F. NARIMAN, J.]
    parties from entering into the suit land.                       A

    I am a/so satisfied that the petitioner shall suffer
    irreparable loss and injury if the ad-interim injunction is
    not granted as it can be evaluated from the materials
    available on the record, without giving into the merits of      B
    the case, hence the ad-interim injunction is granted as
    prayed for.

    Therefore, the ad-interim injunction is granted to the
    petitioner whereby the opposite parties No.1-4 or their
    agents or any persons acting on their behalf or instruction     C
    from the opposite parties No. 1-4 are hereby restrained
    from entering or working in the suit land as per schedule
    mentioned in the plaint."

      4. By an order dated 29th October, 2009, the District         D
Council Court admitted an appeal against the said order and
stayed it. By a further order dated 9th March, 2010, the ad-
interim ex-parte injunction was set aside as the District Council
:ourt allowed the appeal. A Civil Revision Petition was filed
against the said order, and by the impugned order dated 27th        E
April, 2012, the revision was allowed stating that since an
appeal had been filed within 30 days of the ad-interim ex-parte
order, 11 would not be maintainable under the Code of Civil
Procedure and, therefore, the appellate order was set aside.

      5. Learned counsel for the appellants argued that the Civil
Procedure Code does not apply in these areas but only the
spirit thereof applies. The appeal was very much maintainable
as it was granted by Rule 28 of The United Khasi-Jaintia Hills
Autonomous District (Administration of Justice) Rules, 1953.
                                                                    G
     6. Learned counsel for the respondent, on the other hand,
supported the judgment under appeal and stated that this
Court's judgment in A. Venkatasubbiah Naidu v. S
Chellappan & Ors , (2000) 7 sec 695 fully supported the case
of the respondent inasmuch as an aggrieved party cannot
                                                                    H
    798       SUPREME COURT REPORTS                [2015] 1 S.C.R.


A approach the Appellate Court during the pendency of the
  application for vacation of a temporary injunction. An appeal
  can only be entertained under an extraordinary circumstance
  - namely, the failure or omission of the Subordinate Court to
  comply with the provisions of Order 39 Rule 3A. Further, the
B learned counsel relied upon the judgment in Innovative Pharma
  Surgicals v. Pigeon Medical Devices Pvt. Ltd. & Ors., AIR
  2004 AP 310, stating the same thing.

       7. The United Khasi-Jaintia Hills Autonomous District
C (Administration of Justice) Rules, 1953 (hereinafter referred to
  as "1953 Rules") have been made under Paragraph 4 of the
  Sixth Schedule to the Constitution of India. Rules 28, 29 and
  47 are quoted hereinbelow, as they are applicable to the facts
  of this case:
D         "28. Appeal to District Council Court - An appeal shall
          lie to the District Council Court from the decisions of a
          Subordinate District Council Court in any case, Civil or
          Criminal. The District Council Court may hear the appeal
          itself or may endorse it for hearing to the Additional
E         District Council Court:

          Provided that when the District Council Court is not sitting
          by reason of its Presiding Officer being on leave or
          otherwise, the appeal shall lie to the Additional District
          Court.
F
          Provided further that such appeals are, accompanied by
          a copy of the order appealed against and a clear
          statement of the ground of appeal, and are filed within
          sixty days from the date of the order, excluding the time
G         required for obtaining a copy of the order appealed
          against.}

          29. District Council Court to be a Court of Appeal -
          Subject to the provision of rules 30 and 32, the District
H         Council Court shall be a Court of appeal in respect of all
    WESTARLY DKHAR v. SEHEKAYA LYNGDOH                       799
              [R.F. NARIMAN, J.]
    suits and cases triable by Additional Subordinate District       A
    Council Court. The District Council Court may hear the
    appeal itself or may endorse it for hearing to the
    Additional District Council Court:

    Provided that when the District Council Court is not sitting
                                                                     8
    by reason of its Presiding Officer being on leave or
    otherwise the appeal shall lie to the Additional District
    Council Court.

    Provided further that such appeal are accompanied 'by
    a certified copy of the order appealed against and a clear       C
    statement of the ground of appeal and are filed within
    sixty days from the date of the order excluding the time
    required for entertaining a copy of the order appealed
    against.
                                                                     D
    47. Procedure in civil cases - In civil cases, the
    procedure of the District Council Court, [the Additional
    District Council Court] the Subordinate District Council
    Court [and the Additional Subordinate District Council
    Courts] shall be guided by the spirit but not bound by the       E
    letter of the [Code of Civil Procedure, 1908 as amended
    up to date] in all matters not covered by recognized
    customary laws or usages of tne District."

     8. It is clear from the reading of these Rules that an appeal
is provided as a matter of right from all "decisions" of a           F
Subordinate District Council Court to the District Council Court.
That an interim order is a "decision" for the purpose of these
Rules is not disputed before us. Further, under Rule 47, in civil
cases, these courts shall be guided by the spirit but not bound
by the letter of the Code of Civil Procedure in all matters not      G
covered by customary laws. In State of Nagaland v. Ratan
Singh Etc., (1966) 3 SCR 830, this Court, when confronted with
a challenge to these Rules, repelled the challenge in the
following terms:
                                                                     H
    800        SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A         "In order to avoid this implication, the Rules are attacked
          as ultra vires Arts. 21 and 14. Article 21 is used because
          it is contended that these Rules do not amount to law as
          we understand it, particularly where the Rules say that not
          the Criminal Procedure Code but its spirit is to govern
B         the administration of justice. It is urged that this is not a
          law because it leaves each officer free to act arbitrarily.
          This is not a fair reading of the Rule. How the spirit of the
          code is to be applied and not its letter was considered
          by this Court in Gurumayum Sakhigopal Sarma v. K.
c         Ongbi Anisija Devi (Civil Appeal No. 659 of 1957 decided
          on 9th of February, 1961) in connection with the Code of
          Civil Procedure. With reference to a similar rule that the
          courts should be guided by the spirit and should not be
          bound by the letter of the Code of Civil Procedure this
          Court explained that the reason appeared to be that the
D
          technicalities of the Code, should not trammel litigation
          embarked upon by a people unused to them. In that case
          although a suit was ordered to be dismissed for default
          of appearance, an order was passed on merits. The
          question arose whether it was dismissed under 0. 9, r. 8
E         or 0. 17, r. 3 of the Code of Civil Procedure. It was held
          by this Court that it did not matter under which Order it
          was dismissed but that no second suit could be brought
          on the same cause of action without getting rid of the
          order dismissing the suit. In this way this Court applied
F         the spirit of the Code and put aside the technicalities by
          attempting to find out whether the dismissal was referable
          to 0. 9, r. 8 or 0. 17, r. 3 of the Code. That case illustrates
          how the spirit of the Code is used rather than the
          technical rule. In the same way, under the criminal
G         administration of justice the technical rules are not to
          prevail over the substance of the matter. The Deputy
          Commissioner in trying criminal cases would hold the
          trial according to the exigency of the case. In a petty case
          he would follow the summons procedure but in a heinous
H         one he would follow the procedure in a warrant case. The
WESTARLY DKHAR v. SEHEKAYA LYNGDOH                         801
          [R.F. NARIMAN, J.]
question of a Sessions trial cannot arise because there            A
is no provision for committal proceeding and there are
no Sessions Judges in these areas. Therefore, the
Deputy Commissioner who was trying the case observed
that he was going to observe the warrant procedure and
in the circumstances he was observing the spirit of the            B
Code.

  Laws of this kind are made with an eye to simplicity.
  People in backward tracts cannot be expected to make
  themselves aware of the technicalities of a complex
  Code. What is important is that they should be able to
                                                                   c
 present their defence effectively unhampered by the
  technicalities of complex laws. Throughout the past
  century the Criminal Procedure Code has been excluded
  from this area because it would be too difficult for the local
 people to understand it. Instead the spirit of the Criminal       D
  Procedure Code has been asked to be applied so that
 justice may not fail because of some technicality. The
  argument that this is no law is not correct. Written law is
  nothing more than a control of discretion. The more
  there is of law the less there isof discretion. In this area     E
  it is considered necessary that discretion should have
  greater play than technical rules and the provision that
  the spirit of the Code should apply is a law conceived in
. the best interests of the people. The discretion of the
  Presiding Officer is not subjected to rigid control because      F
  of the unsatisfactory state of defences which would be
  offered and which might fail if they did not comply with
  some technical rule. The removal of technicalities, in our
  opinion, leads to the advancement of the cause of justice
  in these backward tracts. On the other hand, the                 G
  imposition of the Code of Criminal Procedure would
  r;etard justice, as indeed the Governor-General, the
  Governor and the other heads of local Government have
  always thought. We think, therefore, that Art. 21 does not
  render the Rules of 1937 ineffective.                            H
    802        SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A         A similar attempt is made by comparing these Rules with
          the Criminal Procedure Code applicable in the rest of
          India. It is contended that this leads to discrimination. We
          think that the exigency of the situation clearly demands
          that the Criminal Procedure Code should not apply in
B         this area. It is not discrimination to administer different
          laws in different areas. The Presidency towns have got
          special procedures which do not obtain in other areas.
          We have known of trial by jury in one part of India for an
          offence which was not so triable in another. Similarly,
c         what is an offence in one part of India is not an offence
          in another. Regional differences do not necessarily
          connote discrimination and laws may be designed for
          effective justice in different ways in different parts of India
          if people are not similarly circumstanced. These
          backward tracts are not found suitable for the application
D
          of the Criminal Procedure Code in all its rigour and
          technicality, and to say that they shali be governed, not
          by the technical rules of the code but by the substance
          of such rules is not to discriminate this area against the
          rest of India.
E
           It is contended that there is discrimination between the
           Tuensang District and the other two districts of the State
          because in the other two districts the Code of Criminal
          Procedure applies. This seems to be stated in the
F         judgment of Mr. Justice C. Sanjeeva Rao Nayudu who
          proceeded upon a concession of Advocate-General of
          Nagaland. We have, however, no reason to think that the
          Advocate-General could have conceded this point. It was
          made clear to us that there was some mistake and the
G         assumption made by Naidu J. was based on a
          misapprehension. It is now admitted by Mr. A. K. Sen on
          behalf of the respondents that the Criminal Procedure
           Code does not apply to any of the three districts and
           therefore there is no question of any discrimination
H         between one district and another in fl!agaland.
WESTARLY DKHAR v. SEHEKAYA LYNGDOH                    803
          [R.F. NARIMAN, J.]

Lastly, it is contended that the Rules themselves allow A
for discrimination ·because one officer may take
something to be the spirit of the Criminal Procedure
Code and another may not. The requirements of the case
must determine what should be applied from the
Criminal Procedure Code and what should not. The B
Rules have been purposely made elastic so that different
kinds of cases and different situations may be handled
not according to a set pattern but according to the
requirements of the situation and the circumstances of
the case. In a backward tract the accused is not in a c
position to defend himself meticulously according to a
complex Code. It is, therefore, necessary to leave the
Judge free so that he may mould his proceedings to suit
the situation and may be able to apply the essential rules
on which our administration of justice is based
                                                              0
untrammelled by any technical rule unless that rule is
essential to further the cause of justice. This would rather
lead to less discrimination because each accused would
be afforded an opportunity which his case a·nd
circumstances require. The Rules of 1937 were designed
for an extremely simple and sophisticated society and E
approximate to the rules of natural justice. It is impossible
in such circumstances to think, that because the Judge
has more discretion than if he acted under the Criminal
Procedure Code or is able to bring different
considerations to the aid of administration of justice that F
there must be discrimination. If a Judge does not apply
the spirit of the Code but goes against it or acts in a
manner which may be considered to be perverse the
High Court will consid'er his action and set it right. As we
said earlier the law has not attempted to control discretion G
by Rules in this area but has rather left discretion free
so that the rule may not hamper the administration of
justice. As there is no vested right in procedure the
respondents cannot claim that they be tried under the
 Criminal Procedure Code in this State where the Code H
    804         SUPREME COURT REPORTS              (2015] 1 S.C.R.


A         is excluded. In such a situation it is difficult to find
          discrimination." (at pages 851-853)

        9. In Longsan Khongngain v. State of Meghalaya, (2007)
    4 GLT 938, a Division Bench of the Assam High Court stated:
B         "We have already noticed that the Code of Criminal
          Procedure. has no application to the tribal areas unless
          made applicable by the appropriate State Government
          by a notification. A similar declaration is contained under
          Section 1 of the Code of Civil Procedure also. Therefore,
c         the courts constituted under paragraph 4 of the 6th
          Schedule either by the District Council or the Regional
          Council, as the case may be, are not bound by the
          procedures prescribed under either of the Codes referred
          to above. Para 4(4).
D
          "A regional Council or District Council, as the case may
          be, may with the previous approval of the Governor make
          rules regulating-

          (a) ................................ .
E
          (b) The procedure to be followed by village councils or
          courts in the trial of suits and cases under sub-paragraph
          (1) of this paragraph."

          Stipulates that those courts are to function in accordance
F
          with the procedure evolved by the rules made by the
          District Council or Regional Council as the case may be
          with the previous approval of the Governor. Such
          procedures may or may not be available for adjudicating
          some of the complicated questions arising out of the
G         various laws in force in the tribal areas. The purpose of
          creating special provisions under the 6th Schedule of the
          Constitution for the administration of tribal areas is the
          perception that the tribals are less "sophisticated" than
          the non-tribals and, therefore, the normal gamut of laws
H
   WESTARLY DKHAR v. SEHEKAYA LYNGDOH                      805
             [R.F. NARIMAN, J.]
    would be too complicated for the tribals to understand and     A
    obey. But the tribals are not wholly exempted from the
    entire body of law made either by the Parliament or the
    appropriate State Legislature. Some of those laws still
    operate either wholly or part on the tribals, for example,
    the Indian Penal Code and the Passports Act which do           B
    not recognize any exception in their operation in favour
    of the tribals. Should an issue arise regarding the rights
    and obligations created under the Passports Act between
    a tribal and an authority created under the Passports Act
    or should a tribal is accused of offence under the             c
    provisions of the Passports Act. The procedure evolved
    by the Village Courts might become inadequate for an
    appropriate adjudication of the issues involved in such
    litigation having regard to the complexity of the matter.
    In order to meet such a situation, in our view, the
                                                                   D
    Governor is authorized under paragraph 5 of the 6th
    Schedule to invest such powers as he deems fit, available
    either in Code of Civil Procedure or Code of Criminal
    Procedure, either on the District Council or Regional
    Council or a court constituted by the District Council
                                                                   E
    (Village Court).

    Paragraph 5 also authorises the Governor to invest an
    officer with such powers available under the Cr.P.C. or
    CPC, as the Governor may deem fit, having regard to the
    situation that is required to be dealt. Obviously such a       F
    power is entrusted by the Governor to meet a situation
    where the Governor comes to the conclusion that the
    Village Courts may not be able to meet the requirement
    of a given situation." (at para 13)
                                                                   G
      10. Two things become clear. An appeal is provided as a
matter of right under Rule 28 of the 1953 Rules and only the
spirit of the Code of Civil Procedure applies. This being clear,
the law laid down in A. Venkatasubbiah Naidu v. S.
Chellappan & Ors., (2000) 7 SCC 695 and Mis Maria Plasto
                                                                   H
    806        SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A   Pack (P) Ltd. v. Managing Director, U. P. Financial
    Corporation, Kanpur & Ors., AIR 2004 ALL. 310, will not apply
    as both judgments are based upon the letter and not the spirit
    of the Code of Civil Procedure. What applies is Rule 28 of the
    1953 Rules which provides a right of appeal in all civil cases
B   from all decisions of Subordinate District Courts. The judgment
    under appeal states:

          "7. As already noticed, both the parties were effectively
          and adequately represented before the appellate court
          or the trial court by their respective counsel, who cannot
c         said to be unaware of the complexities of the Code of Civil
          Procedure. Fortunately, no plea is made by the
          respondents that they have been substantially prejudiced
          or hampered by the technicalities of complex laws such
          as the Code of Civil Procedure, which ordinarily bars an
D         appeal from an ex-parte order of injunction. The
          contention of the learned senior counsel is that as only
          the spirit of the Code of Civil Procedure is followed in
          Courts constituted under the Sixth Schedule, the
          respondents could not be barred from preferring an
E         appeal against the ex-parte order of injunction passed by
          the trial court. Though the argument appears to be
          attractive at the first blush, it does not stand closer scrutiny
          on deeper consideration. In the first place, when it is
          nobody's case that the parties were unrepresented and
F         were prosecuting the case by themselves without the
          assistance of legal experts, there can be no bar in
          applying the Jetter of the Code of Civil Procedure in a
          forensic battle fought between parties well and adequately
          represented by their respective counsel. On the contrary,
G         the application of the letter of the Code of Civil Procedure
          even in a District Council Courts and Courts subordinate
          to them constituted under the Sixth Schedule will ensure
          fairness, certainty, predictability and consistency in the
          procedure adopted by them. However, if both the parties
          are not assisted by legal experts, depending upon the
H
    WESTARLY DKHAR v. SEHEKAYA LYNGDOH                       807
              [R.F. NARIMAN, J.]
     facts and circumstances of ·the case as they develop in         A
     the course of trial, such Courts, in order to ensure that
     neither of the parties are hampered by the complexities
     and technicalities of the Code of Civil Procedure may
     consider the question as to whether there should be strict
     application of the Code or not. No daub(, such discretion       s
     is expected to be exercised by the Court judiciously and
     not arbitrarily or whimsically: judicial discretion like any
     discretionary power is to be exercised in a reasonable
     manner. In the instant faSfti I have a sneaking suspicion
     that both the parties were indulging in forum hunting to        c
     obtain favourable order at the expense of the other. I say
     no more in this behalf The case must go back to the trial
     court for consideration of the application for temporary
     application filed by the petitioner."

      11. We fail to understand how the letter of the Civil          D
Procedure Code would apply depending upon whether parties
are or are not assisted by legal experts. The Division Bench
has unfortunately failed to refer to Rule 28 of the 1953 Rules
and has applied the letter of Order 39 Rule 3A read with Order
43 of the Code of Civil Procedure. This is the basic error in        E
the judgment. On the facts of this case, the appeal' becomes
maintainable because Rule 28 of the 1953 Rules provides for
such appeal without any requirement that ordinarily it should be
filed only after 30 days. Even otherwise, the judgments relied
upon by the respondent state that such appeal is maintainable        F
under the Code of Civil Procedure, but the court may relegate
the appellant to the alternative remedy provided - an application
to vacate the stay within 30 days. This in turn does not go to
the maintainability of the appeal but only goes to whether
discretion ought to be exercised against the appellant if the        G
provisions of Order 39 Rule 3A have been followed. We,
therefore, allow the appeal, set aside the judgment dated 27th
April, 2012 of the High Court and restore the judgment dated
9th March, 2010 of the District Council Court.

Devika Gujral                                      Appeal allowed.
                                                                     H