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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1232        OF 2015 [Arising out of SLP (Civil) No.16099 of 2012]

Shri Westarly Dkhar & Ors.                          …….Appellants

Versus

Shri Sehekaya Lyngdoh                                             ....….Respondent

J U D G M E N T  

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 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 Suit No. 16 of 2009.  

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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   is an urgency in the matter for restraining the opposite   parties from entering into the suit land.

I am also 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   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 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 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  Court  allowed  the  appeal.  A  Civil  

Revision  Petition  was  filed  against  the  said  order,  and  by  the  

impugned  order  dated  27th April,  2012,  the  revision  was  allowed  

stating that since an appeal had been filed within 30 days of the ad-

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interim ex-parte order, it 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.

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  SCC  695  fully  supported  the  case  of  the  respondent  

inasmuch as an aggrieved party cannot 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 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.   

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7. The  United  Khasi-Jaintia  Hills  Autonomous  District  

(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:

“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 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.  

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 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   Council Court shall be a Court of appeal in respect of all   suits and cases triable by Additional Subordinate District   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 by reason of  its  Presiding Officer being on   leave or otherwise the appeal shall lie to the Additional   District Council Court.  

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Provided  further  that  such  appeal  are   accompanied 'by a certified 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 required for entertaining a copy of the   order appealed against.  

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   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 the 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 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 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:

    “In order to avoid this implication, the Rules are   attacked as ultra vires Arts. 21 and 14. Article 21 is used  

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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 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. 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  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  O.  9,  r.  8  or  O.  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 the spirit of the Code and put   aside the technicalities by attempting to find out whether   the dismissal was referable to O. 9, r. 8 or O. 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 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  one  he  would  follow  the   procedure in a warrant case. The question of a Sessions   trial  cannot  arise  because  there  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   

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observe the warrant procedure and in the circumstances   he was observing the spirit of the 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   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 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 is of discretion. In this   area  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  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 imposition of the Code of   Criminal Procedure would retard 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.

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 this area. It is not discrimination to administer   

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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, 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  of  the  Criminal  Procedure  Code  in  all  its   rigour  and  technicality,  and  to  say  that  they  shall  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.

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   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   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   between one district and another in Nagaland.

Lastly,  it is contended that the Rules themselves allow   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   Rules have been purposely made elastic so that different   kinds of cases and different situations may be handled   

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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   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   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  and   circumstances require. The Rules of 1937 were designed   for  an  extremely  simple  and  sophisticated  society  and   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   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 consider his action and set it right. As we said   earlier the law has not attempted to control discretion 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 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:

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“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,   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):

“A regional Council or District Council, as the case may   be, may with the previous approval of the Governor make   rules regulating--

(a)……………………………

(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   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   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   would be too complicated for the tribals to understand   and 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 not recognize any exception in their operation   in favour of the tribals. Should an issue arise regarding   

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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 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   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   (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   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)

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  M/s Maria Plasto 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  

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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 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   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   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   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 were prosecuting the case by themselves without the   assistance  of  legal  experts,   there  can  be  no  bar  in   applying the letter of the Code of Civil Procedure in a   forensic  battle  fought  between  parties  well  and   adequately  represented by their  respective counsel.  On  the contrary, 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 facts and circumstances of   the  case  as  they  develop  in  the  course  of  trial,  such   

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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 doubt, such discretion 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 case, I have a sneaking suspicion that both the   parties  were  indulging  in  forum  hunting  to  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  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 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  

under  the Code of  Civil  Procedure,  but  the court  may relegate  the  

appellant to the alternative remedy provided – an application to vacate  

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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 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.

………………………………..J. (J. Chelameswar)

………………………………..J. (R.F. Nariman)

New Delhi, January 28, 2015

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