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THE HIGH COURT OF GAUHATI (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KARDAK ETE, J
Pegmir Tarak Son Of Late Pegmir Takar - Appellant
Versus
Pegmir Punu Son Of Late Pegmir Neni - Respondent
CRP 43 / 2024
Decided On : 06-02-2025
(A) Code of Civil Procedure, 1908 - Sections 115 and 151 - Review of orders - The petitioner sought to review orders rejecting his examination as a witness due to absence on medical grounds - The court found that the petitioner had sufficient reason for absence and that procedural rules should not hinder justice - The learned Civil Judge's orders were deemed erroneous and reviewable. (Paras 29 , 31 , 34 )
(B) Right to Fair Hearing - The court emphasized that all parties should have the opportunity to present their case unless serious prejudice is caused to the opposing party - The procedural rules are to facilitate justice, not obstruct it. (Paras 31 , 32 )
Facts of the case:
The petitioner, a defendant in a title suit, was unable to appear for his examination due to a medical emergency involving his brother-in-law. The trial court dismissed his request to review the order dropping him as a witness.
Findings of Court:
The court found that the petitioner had valid reasons for his absence and that the trial court's refusal to allow his examination was an error. The petitioner was granted another opportunity to present his evidence, subject to costs.
Issues: The main issues were whether the petitioner was entitled to an opportunity to adduce evidence and whether the trial court's orders were erroneous.
Ratio Decidendi: The court ruled that procedural rules should not prevent a party from presenting their case unless it causes serious prejudice to the other party, emphasizing that the pursuit of justice is paramount.
Result: The impugned order was set aside and the revision petition was allowed.
JUDGMENT :
(KARDAK ETE, J.)
Heard Mr. N. Danggen, learned counsel for the petitioner. Also heard Mr. T. Nikam, learned counsel for the respondent.
2. This Civil Revision Petition under Section 115 read with Section 151 of the Code of Civil Procedure, 1908, is directed against the order dated 20.08.2024 passed in Misc. Case No. 14/2024 arising out of T.S. No. 08/2016, by the learned Civil Judge, Senior Division, Ziro, District Lower Subansiri, Arunachal Pradesh, whereby, the review petition seeking review of the order dated 23.01.2024 and 24.01.2024 with a prayer to allow the petitioner to examine and adduce evidence has been rejected.
3. The case in brief is that the respondent herein filed a Title Suit being T.S. No. 08/2016 in the Court of Civil Judge, Senior Division, Ziro and the petitioner has been arrayed as defendant No.3. The claim of the respondent in the Title Suit is that his land at Harakso, Juli, Tor, Nguduk Yorbe, Suikhi Happa, Hokagaab, Moya, Pong, Herikh which was inherited from his forefather late Pegmir Lel. The suit has been instituted in the capacity of duly authorized descendant of late Pegmir Lel families claiming that the land was given to Late Pegmir Lel by Late Yowa Tegii in lieu of bridal price which could not be returned to late Pegmir Lel and since then, the land was under the possession and ownership of late Pegmir Lel.
4. It is the claim of the Respondent that some member of Yowa Clan headed by one Yowa Kumar without knowing the facts started reclaiming the land from the descendents of Late Pegmir Lel before the Court of Additional Deputy Commissioner, Raga. Consequently, a Mel/local case was held in the year 2014. However, Shri Yowa Khan the eldest son of Late Yowa Tegii @ Jugii gave a statement on 17.02.2014 that the land mentioned above belongs to family of Late Pegmir Lel. Hence the matter was resolved between them. It is alleged that the defendants in the suit taking advantage of the dispute between Yowa Clan and Late Pegmir Lel families started encroaching upon the suit land. It is further alleged that the defendants have no legal right over the land and that they are only in permissive possession on the land from the plaintiffs. Against the petitioner, who has been arrayed as defendants No.3, the particular allegation is that of encroachment of land called Komu Pobu, a part of suit land, near the resident of the plaintiff.
5. The petitioner filed a written statement as a defendant No.3, denying the allegations and particularly stating that he along with other clan relatives are the actual owners of the suit land and he has been in possession of his land since time immemorial. He has been in possession of the land after inheriting from his parents and since then, it is under his uninterrupted and peaceful possession. It is also stated that he has planted cardamom and local bamboo in his garden. The Anchal Samiti Member of Ripari Anchal Samiti and GB of Ripari, who knows the suit land has issued a certificate declaring that the suit land belonged to the defendant. The plaintiff never raised objection to the possession of suit land by the defendant till 2014.
6. It is the contention of the petitioner that the respondent is claiming the suit land including land of defendants, who are residing and cultivating in the respective land on the basis of declaration made by Shri Yowa Khan on 21.02.2014. Sri Yowa Khan, who is staying at Yazali far away from the suit land, which is 100 km approximately from the suit land, has no knowledge about the suit land. Moreover, Shri Yowa Khan is not an authorized person to declare the land of defendant as land of plaintiff. As such declaration made by Shri Yowa Khan is invalid and illegal. The plaintiff never claimed and possessed the suit land before declaration made by Shri Yowa Khan because he was not residing at Harakso Village. He was residing at Linya Village far away from Harakso Village, which is approximatel
Procedural rules should not obstruct justice; parties must have the opportunity to present their case unless serious prejudice is caused to the opposing party.
Court can exercise its power of review only when there is an error apparent on the face of the record and an error which is to be fished out by a process of reasoning cannot be said to be an error ap....
The plaintiffs cannot claim a mere declaration of title without seeking further relief for possession, as stipulated by Section 34 of the Specific Relief Act, rendering the suit not maintainable.
The appellate court emphasized the necessity of treating counter-claims with the same rigor as original suits, mandating separate decrees and proper procedural adherence.
Non-appearance during an appeal hearing should be adequately justified to warrant a review based on Order 47 Rule 1 of CPC.
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