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GAUHATI HIGH COURT
B.L.Hansaria, K.N.Saikia, JJ.
Medenkaba and Others -Appellant
Versus
R.Tekatemjen AO and Another -Respondent
Civil Revision No. 1 (K.) of 1979
Decided On : 30-04-1986
RULE 34 - NAGALAND RULES FOR ADMINISTRATION OF JUSTICE AND POLICE - INTERPRETATION - DE NOVO TRIAL - TRANSFER OF CASE TO ASSISTANT DEPUTY COMMISSIONER - REVISION AND APPEAL - LIMITATION - COMPUTATION - TIME REQUISITE FOR OBTAINING COPY OF DECREE OR JUDGMENT - MEANING AND SCOPE - O. 20 R. 6A C.P.C. - APPLICABILITY - SPIRIT OF THE RULE - GUIDANCE TO COURTS.
Fact of the Case:
Plaintiffs-petitioners instituted a declaratory suit in Dobashi's Court at Mokokchung claiming that they were eligible to use certain names and that the defendants-respondents were not entitled to use the same. The Dobashi's court decided against the plaintiffs-petitioners. They preferred an appeal under Rule 31 of the Rules for the Administration of Justice and Police in the Naga Hills District. The Additional Deputy Commissioner, Mokokchung, having reason to doubt the justice of the decision, decided that the case be tried de novo, and transferred it to the Court of the Assistant to the Deputy Commissioner, Mokokchung to try it de novo. The Assistant to the Deputy Commissioner dismissed the suit with costs. From the judgment of the Assistant to the Deputy Commissioner, the plaintiffs-petitioners appealed under Rule 34 of the Rules to the Additional Deputy Commissioner who dismissed the appeal as time-barred.
Finding of the Court:
1. A de novo proceeding held as ordered under Rule 31 of the Rules will be an original proceeding for all purposes and must be treated as such. 2. The entrustment of a case to the Assistant to the D. C. for de novo trial, is valid. 3. Both the remedies under Rule 34, appeal, and revision, would be available to the aggrieved party. 4. The revisional power of the High Court should be resorted to where appeal did to the Deputy Commissioner but was not filed. 5. Once having resorted to Rule 34 by way of appeal or revision before the Deputy Commissioner, further appeal or revision to the High Court will lie. 6. If the party already appealed under Rule 34, the remedy by way of revision under the first part of the Rule to the High Court will still be available. 7. On the other hand, if the party directly approached the High Court either in appeal or revision under the Rule, no further remedy will be available in the High Court. 8. The time required for obtaining a copy of the decree or judgment means the time beyond the appellant's control occupied by the copyist department after an application for a copy has been duly made. 9. The time of putting in the requisites after notification has also to be seen. 10. Time requisite for obtaining a copy ends on the date when the copy is ready for delivery and not when the applicant actually takes delivery.
Issues: 1. Whether a de novo trial ordered under Rule 31 of the Rules is an original or appellate proceeding? 2. Whether the transfer of a case to the Assistant to the D. C. for de novo trial is valid? 3. Whether both the remedies under Rule 34, appeal, and revision, are available to the aggrieved party? 4. Whether the revisional power of the High Court should be resorted to where appeal did to the Deputy Commissioner but was not filed? 5. Whether once having resorted to Rule 34 by way of appeal or revision before the Deputy Commissioner, further appeal or revision to the High Court will lie? 6. Whether the time required for obtaining a copy of the decree or judgment includes the time taken by the applicant to file requisites after notice?
Ratio Decidendi: 1. A de novo trial is a new trial, starting again. It is not a continuation of the previous trial. Therefore, a de novo trial ordered under Rule 31 of the Rules is an original proceeding. 2. The entrustment of a case to the Assistant to the D. C. for de novo trial is valid because it is an original proceeding and the Assistant to the D. C. is competent to hold de novo trial. 3. Both the remedies under Rule 34, appeal, and revision, are available to the aggrieved party because the Rule confers a statutory right of appeal and a discretionary revisional power. 4. The revisional power of the High Court should be resorted to where appeal did to the Deputy Commissioner but was not filed because the direct approach to the High Court is not inhibited by the provisions of appeal provided in the second part of Rule 34. 5. Once having resorted to Rule 34 by way of appeal or revision before the Deputy Commissioner, further appeal or revision to the High Court will lie because the Rule does not provide for any such restriction. 6. The time required for obtaining a copy of the decree or judgment does not include the time taken by the applicant to file requisites after notice because the time requisite means the time beyond the appellant's control occupied by the copyist department after an application for a copy has been duly made.
Final Decision: The impugned order was set aside, and the appeal was sent back to the Additional Deputy Commissioner for disposal in accordance with law.
This revision under Rule 34 of the Rules for Administration of Justice and Police in the Naga Hills Distrait is from the order dated 19.8.78 of the Additional Deputy its Commissioner, Mokokchung passed in an appeal which was of from the judgment of the Assistant to the Deputy Commissioner, Mokokchung.
2. The plaintiffs - petitioners instituted a declaratory suit in Dobashi' s Court at Mokokchung claiming, inter alia, that " they being legal heirs of the clan were eligible to use the names 'Wazatipongla' and 'Jamtisungla' and that the defendants - respondents were not entitled to use the said names. The Dobashi's court have in decided against the plaintiffs petitioners. They preferred an appeal under Rule 31 of the Rules for the Administration of Justice and Police in the Naga Hills District (hereinafter referred to as 'the Rules'). The learned Additional Deputy Commissioner, Mokokchung having reason to doubt the justice of the/decision, decided that the case be tried de the novo, and transferred it to the Court of the Assistant to the Deputy Commissioner, Mokokchung to try it de novo and the learned Assistant to the Deputy Commissioner by his judgment & 51 dated 18.1.78 dismissed the suit with costs. From the judgment the of the Assistant to the Deputy Commissioner, the plaintiffs - petitioners appealed under Rule 34 of the Rules to the Additional Deputy Commissioner who dismissed the appeal on 19. DJ 8.78 as time barred. The plaintiff-petitioners have come in this by revision against the said dismissal under the same Rule 34 of the Rules.
3. When this petition was moved before a Single Bench of fed my learned brother Hansaria, J. at Kohima on 7.8.80 the following questions were found to have been involved in the petition, namely, whether, after an appeal has been preferred to the Deputy Commissioner or the Additional Deputy Commissioner under Rule 31 of the Rules, the court could transfer the case to his Assistant as was the practice in vogue instead of trying it itself; whether such de novo disposal by the Assistant to the Deputy Commissioner or for that matter by the Additional Deputy Commissioner himself would be an original or appellate proceeding; and after such de novo disposal by the Assistant to the Deputy Commissioner, whether an appeal shall lie to the Deputy Commissioner under the second part of Rule 34 or a revision would lie under the first part of the same Rule. This was considered to be important because for revision no period of limitation has been prescribed, whereas an appeal has to be preferred within 30 days "excluding the time required for obtaining a copy of the decision". Notice was issued to the learned Advocate General, Nagaland to assist the Court as Amiens Curiae and the case was transferred from Kohima to the principal seat where a Division Bench issued Rule on, 18.9.80.
4. On 16.8,80 the petitioners filed an application for amendment of the petition and on 20.2.81 it was ordered to be taken up at the time of hearing. It is stated in the petition that at the time of filing the revision petition the petitioners' representative could not properly instruct their counsel, but after perusing the records it was considered necessary to add the proposed paragraphs 13A to 13D and 17A to C and grounds V and VI in the petition for the ends of justice. The opposite parties have filed counter, but have not opposed the amendment prayer at the hearing. Hence the amendment is allowed.
5. We have heard Mr. J. P. Bhattacharjee, the learned Advocate General, Nagaland on the aforesaid questions of law and on interpretation of Rules 31 and 34 of the Rules. Rule 3t of the Rules reads:
"31. An appeal shall lie from the decision of the mauzadar, gaonbura, chief, headman of a khel or other duly recognised village authorities (to the tribal court whenever constituted or otherwise) to the Deputy Commissioner or his Assistant. A record shall be made of the matter in dispute and the decision of the village a
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