The Jammu and Kashmir and Ladakh High Court on Tuesday ruled that Section 107 and 108 read with Order 43 Rule 2 CPC does not empower an appellate court to mutate the very script of the suit before the trial court and create a new fact situation alien to the original lis and proceed on to carry forward its own perception-based outcome to a given civil suit.
The bench comprising Justice Rahul Bharti was hearing a plea under Article 227 and the moot question that had fallen for adjudication was as to whether an appellate court can, in purported exercise of its jurisdiction under Order 43 rule 1(r) CPC, sidestep main cause of a civil suit and the appealable order passed therein, and self-generate a new situation to deal with.
Facts of the Case:
The petitioner, as being the plaintiff, filed a civil suit on 21st April 2022 before the Court of Sub Judge, Anantnag for seeking a decree of declaration and injunction. The petitioner's right to sue related to his purported status as being the President of the Municipal Committee, Bijbehara. The sole defendant named in the suit is Executive Officer, Municipal Executive Committee, Bijbehara, Anantnag, Kashmir, the respondent no 1.
The purported cause of action for the petitioner to file the suit was the issuance of a notice dated 20th April 2022 by the defendant Executive Officer for the purpose of convening a special meeting under rule 27 of the Procedure & Business with respect to a purported resolution for motion of No-confidence alleged to be signed by nine out of sixteen elected Municipality Committee members of the Municipal Committee, Bijbehara.
The trial court of Sub Judge, Anantnag, vide its order dated 21st April 2022 came to stay, ad interim, the operation of the said Communication of the defendant Executive Officer, Municipal Executive Committee, Bijbehara read with the resolution bearing No-confidence.The respondents 2 to 10 in their written statement stated that it was only upon the failure of the petitioner to act in convening the meeting for fresh election that the original defendant Executive Officer, Municipal Executive Committee Bijbehara, had stepped in, by compulsion of statutory provisions.
After hearing both the parties the Sub Judge Anantnag passed a final order dated 26th May 2022 thereby dismissing the temporary injunction application of the petitioner, and also vacating the interim direction of stay of the communication, with a further direction to the Executive Officer Municipal Executive Committee, Bijbehara, to exercise the process of No-confidence motion strictly in terms of the provisions of the Municipal Act, 2000
This Order came to be challenged in an appeal before the lower appellate court of the Additional District Judge, Anantnag who called for the official record from the office of the Municipal Committee, Bijbehara and made both the petitioner and the respondents to undertake a fresh process & exercise for resolution/motion of no-confidence.
The Additional District Judge, Anantnag also nominated a Sub Judge, serving as Secretary, District Legal Services Authority (DLAS), Anantnag on fees of Rs. 20,000/- payable by the respondents 2 to 10 to supervise laying of a new No-confidence Motion by the respondents against the petitioner before the Secretary Municipal Committee Bijbehara. Accordingly the Sub Judge carried out the directions and submitted his report.
Borrowing reliance from the said report of the Sub Judge as Supervisor, the Additional District Judge, Anantnag came to conduct fresh hearing of the matter in extenso and passed a 30-page impugned judgment dated 20/07/2022 bearing a declaration that the petitioner has lost majority in the Municipal Committee Bijbehara and has no right to hold the office of the President.
Adjudicating upon the matter the bench observed that under Order 43 rule 1(r) CPC it was mandated upon the appellate court of Additional District Judge, Anantnag to hear the appeal and dispose it on its merits in conformity with the principle of judicial hierarchy and domain of civil courts. The intended outcome of the appeal so filed by the petitioner before the court of Additional District Judge, Anantnag would have been either the order impugned of the Court of Sub Judge, Anantnag getting set aside or confirmed/varied/altered, following the well settled legal principles.
The court observed that instead of disposal of appeal as warranted under law the Court of Additional District Judge, Anantnag allowed itself a distraction and take a detour. The Additional District Judge in fact "abandoned" the exercise of examining the submissions so made by the parties on the merits of the case in appeal and examining the trial court order, and resorted to become "self-imposed" supervisory authority of the Municipal Committee, Bijbehara, the bench remarked.
Expressing its displeasure, the bench recorded that a serving judicial officer, paid by the litigants, came to be placed in service of the litigants by the Additional District Judge, Anantnag without bothering to mention it on record as to under which provision of the CPC and the Civil Courts Act, 1977 Svt., such a venture was contemplated and carried out and by which authority in and of law a Sub-Judge was commanded to act as supervisor in the internal political matters of a Municipal Committee.
The bench also frowned on the Judgement delivered by the ADJ bearing a declaration that the petitioner has lost majority in the Municipal Committee Bijbehara and has no right to hold the office of the President, and then passing on a writ like directive to the Executive Officer, Municipal Committee Bijbehara to proceed as per Jammu & Kashmir Municipality Rules.
"The Additional District Judge, Anantnag parted with the judgment with wordings "appeal disposed of and be consigned to records after due compilation". It is lost to imagination as to what fate the trial court order dated 21st April 2022 and suit of the petitioner was consigned by the Additional District Judge, Anantnag vide his said judgment" Justice Bharti observed.
Declining the contention of the respondents that the powers of the appellate court are coterminous viz a viz the trial courts in terms of Sec 107 & sec 108 read with O 43 R 2, the bench observed that the said provisions cannot be read to enable an appellate court to possess a power to mutate the very script of the suit before the trial court and create a new fact situation alien to the original lis.
That will be nothing but an act of perversion of jurisdiction as has happened in the present case at the hands of the Additional District Judge, Anantnag, the bench underscored.
"Everybody in the matter is at loss to know & show from the impugned judgment of the Additional District Judge as to what has been done to the trial court's impugned order and labor invested to pass the said order which was taken in appeal, and also the paralysis of the civil suit lying on the file of the civil court to nobody's understanding as to what disposal is left to be given to the suit" recorded the bench in annoyance.
The impugned order and the proceedings related with and to the passing of the said order of the Court of Additional District Judge, Anantnag were set at naught by holding the same as null and void ab initio.
The District Judge, Anantnag was directed to recall the appeal from the Court of Additional District Judge, Anantnag with an additional directionto hear and adjudicate it by himself within 30 days from the date of receipt of copy of this judgment.
The bench also directed that the Principal District Judge, Anantnag shall call upon the Sub Judge (Secretary DLSA) Anantnag to remit the fee of rupees twenty thousand (Rs.20,000/-) if received from and paid by the respondents and the same shall then be returned to the respondents against receipt.
Case Title: Majid Nabi Khan Vs Executive Officer MC Bijbehara
Citation: 2022 LiveLaw (JKL) 106