Municipal Commissioners of Howrah vs Satyanarayan Poddar

Chittatosh Mookerjee, J.—Ordinarily we are disinclined to interfere in revision with an order restoring a case or an appeal for rehearing. But in this case, the learned Subordinate Judge clearly committed errors of jurisdiction in restoring an appeal u/s 141 of the Calcutta Municipal Act, 1923, (as extended to Howrah Munich pality) which was dismissed for default. Accordingly, we have decided to send the matter back to the Court below for rehearing of the restoration application.

On June 3, 1967, the present opposite parties had presented in the Court of Subordinate Judge, Howrah, the said appeal u/s 141 of the Calcutta Municipal Act, 1923, (as extended to Howrah Municipality) against the order of assessment in respect of holdings Nos. 47 to 50, Girish Ghosh Lane, Circle No. 1, Ghusury, Howrah, for the quinquennium commencing from the first quarter of 1950-51. On June 5, 1967, they had filed a petition praying for condonation of delay for filing the said appeal. On June 9, 1967, the learned Subordinate Judge, Howrah, ex parte allowed the said prayer for condonation of delay u/s 5 of the Limitation Act and admitted the appeal. Thereafter, the Commissioners of Howrah Municipality, who are Petitioners in the present Rule, had appeared in the said appeal in the Court of Subordinate Judge, Howrah and had filed an objection to the petition of appeal filed by the present opposite parties.

The said appeal was originally fixed for peremptory hearing on July 5, 1968. But on the repeated prayers made by the present opposite parties the peremptory hearing of the said appeal was adjourned on as many as fifteen occasions. It was ultimately fixed for hearing on August 28, 1970. On the said date, the Respondents were ready, but the Appellants again filed a petition for time. The learned Subordinate Judge allowed the said prayer and fixed November 6, 1970, for peremptory hearing. On November 6, 1970, the Respondents filed hazira in the appeal, but the Appellants did not take any steps, they were found absent on repeated calls and, hence, the learned Subordinate Judge ordered that the appeal be dismissed for default with costs to Respondents. On December 10, 1970, the learned Subordinate Judge had drawn up the cost-sheet in the said appeal.

On July 19, 1972, the opposite parties filed an application in the Court of learned Subordinate Judge, Howrah, for setting aside the ex parte order of dismissal of their appeal dated November 6, 1970. The said application was purported to be made under Order 41, Rule 19 and Order 9, Rule 9, read with Section 151 of the Code of Civil Procedure. The Applicants, inter alia, alleged that they had depended upon their lawyer Sri Chandra Sekhar Mukherjee and his mohorur for conducting the appeal. They claimed that from time to time Sri Batakristo Bhandari, a registered mohorur, used to inform them of the dates of the said case and they used to take steps. On many occasions the said registered clerk had come to their office-guddy and had informed them about the dates and had collected dues of the lawyer and incidental expenses. Even on May 10, 1972, the said mohorur had come to the office of the Petitioners and had informed that the hearing of the case was fixed for May 12, 1972 and he had taken fees for filing an application for adjournment. According to the Petitioners, on June 26, 1972, they were surprised to receive a letter from the Law Officer, Howrah Municipality, calling upon them to pay the decretal costs of the above Municipal Assessment Appeal. One of the Applicants, Satyanarayan Poddar had rushed to the Court and he had caused the records to be inspected by another lawyer and it had transpired that the Petitioners had been ''hoodwinked by the said mohorur and a deliberate fraud had been practised upon them and as a result thereof the case had been dismissed. The opposite parties filed a separate application u/s 5 of the Limitation Act for condonation of delay for filing the said application for setting aside the ex parte order.

The Commissioners of Howrah Municipality opposed the said application. They had denied the allegations of the present opposite parties and had contended that they were not prevented by any sufficient cause from appearing on the date the appeal was dismissed for default. The Commissioners also challenged the maintainability of the said application for setting aside the ex parte order on the ground that neither the provisions of Order 9, Rule 9 nor those of Order 41, Rule 19 of the CPC were applicable to an appeal u/s 141 of the Act.

The learned Subordinate Judge, Howrah, by the order challenged in this Rule, has set aside the said ex parte order and allowed the application of the said opposite party and has restored the above municipal appeal to the original file and number subject to payment of Rs. 30 as costs by them to the Respondents within 30 days, failing which the application was to stand dismissed. The present opposite parties had deposited the sum of Rs. 30 in terms of the above order.

In our view, the learned Subordinate Judge has acted illegally and with material irregularity in the exercise of his jurisdiction by setting aside the above order dismissing the appeal and by restoring the same without at all considering all the relevant materials on record and the circumstances of the case.

The learned Subordinate Judge has overlooked that, according to the Appellants, Sri Chandra Sekhar Mukherjee who had filed the appeal, was the retained lawyer of their estate. They, however, made the application for setting aside the ex parte order dismissing their appeal, not through Sri Chandra Sekhar Mukherjee but through another lawyer. Neither said Sri Chandra Sekhar Mukherjee nor the registered mohorur Batakristo Bhandari were examined as witnesses in the case. The Appellants in their application for setting aside the ex parte dismissal order of their appeal did not make any allegation of lack of bona fide against Sri Chandra Sekhar Mukherjee. On August 20, 1970, the application for adjournment of the peremptory hearing of the appeal was made under the signature of Sri Chandra Sekhar Mukherjee. The said Batakristo Bhandari, the mohorur, had written the application. The Court, in view of the intervening Puja vacation, adjourned the case to November 6, 1970. There is no evidence that Sri Chandra Sekhar Mukherjee, the lawyer of the Appellants, was not aware of the next date of hearing of the appeal. There was no explanation why Sri Chandra Sekher Mukherjee did not appear when the appeal was called for hearing and then dismissed for default on November 6, 1970.

The evidence of P.W. 1 was also not fully considered. P.W. 1 during his cross-examination seemed to have admitted that he was aware that the appeal was fixed for hearing on November 6, 1970. He claimed that he had asked the clerk to apply for adjournment and did not attend Court on November 6, 1970.

The Court below also did not consider in accordance with law that the allegation against the mohorur Batakristo Bhandari amounted to one of deliberate fraud and misrepresentation, therefore, the burden was upon the Appellants to affirmatively establish that such fraud was really perpetrated by Batakristo Bhandari. The Court below admitted into evidence and relied upon an exercise book described as a diary of Batakristo Bhandari which was produced not by him but by Satyanarayan Poddar, P.W. 1. The said exercise book did not contain the name of Batakristo Bhandari or his signature. The Appellants did not suggest any motive for such alleged fradulent acts by Batakristo Bhandari. The Court below also overlooked that diary, if any, kept by Batakristo Bhandari upto the period November 6, 1970, was not produced and the individual entries in the alleged diary of 1971 were not also separately proved by P.W. 1.

We have already referred to the facts that the appeal was previously adjourned on as many as sixteen occasions on prayer of the Appellants. As already observed, the Court below without applying its mind to all the materials reached the conclusion that there had been no lack of diligence on the part of the Appellants in conducting the appeal and that they were victims of ''deliberate falsehood'' on the part of their lawyer''s clerk.

In the above view, the restoration application should be reheard on merits.

In our view, the learned Judge of the Court below was, however, right in holding that he had jurisdiction to entertain the said application for restoration of the appeal in question.

Sub-section (1) of Section 141 of the Calcutta Municipal Act, 1923, conferred a right upon a person dissatisfied with the order passed on his objection to the valuation of his holding to present an appeal to the Court of Small Causes, Calcutta, having jurisdiction in the place where the land or building to the valuation of which the objection was made, is situated. The Government of Bengal by notification No. 260M, dated January 1932 u/s 541 extended Section 141(1) of the Calcutta Municipal Act, 1923, to Howrah Municipality with the modifications that any person dissatisfied with the order, passed on his objection to valuation may appeal to the Subordinate Judge, Howrah. Under Sub-section (2) of Section 141 such appeal to the Subordinate Judge shall be presented within 30 days from the date of the order. Parts II and III of the Indian Limitation Act, 1908, have been made applicable by Sub-section (3) of Section 141 to every appeal preferred under Sub-section (1) of Section 141. u/s 142(3) an appeal from a decision by the Court u/s 141 shall lie to this Court. The Act does not prescribe the procedure for such appeals u/s 141(1) and Section 142(3).

Page and Graham JJ. in the Corporation of Calcutta v. Sheikh Keamuddin 31 C.W.N. 1040 (1042) held that while the Executive Officer in making assessment acted in administrative capacity, the appeal; from its order u/s 141 to the Court of Small Causes, was a judicial proceeding by a Court. Their Lordships further held that u/s 142(3) the appeal to this Court was not a second appeal within the ambit of Section 100 of the CPC and in such an appeal it was open to the High Court to reconsider the findings of fact arrived at by the Court of Small Causes.

A Letters Patent Bench consisting of Rankin C.J., C.C. Ghose and Buckland JJ. in Corporation of Calcutta v. Sm. Jalajbasini Debi 32 C.W.N. 378 approved the view taken in the Corporation of Calcutta v. Sheikh Keamuddin 31 C.W.N. 1040 (1042) and held that an appeal u/s 141 of the Calcutta Municipal Act, 1923, which was given to the Court of Small Causes, was really a proceeding by which an administrative act was challenged before a judicial Tribunal and it differed from an ordinary appeal from a civil Court in that it is incumbent upon the Assessee Appellant to adduce evidence, if he challenged the assessment as incorrect. The Letters Patent Bench agreed with Graham J. that an appeal u/s 142 lies both on law and on facts.

It is undisputed that the Subordinate Judge u/s 141 as extended to Howrah Municipality is required to act judicially. In other words, he possesses all attributes of a Court. The Subordinate Judge in order to discharge his duties can receive evidence and therefore, he might summon and enforce attendance of witness, compel production of documents. In other words, proceedings in an appeal u/s 141 (as extended to Howrah Municipality) must necessarily approximate to those of original proceeding under the Code. Thus he has all the trappings of a Court.

Two Division Bench of this Court in The Corporation of the town of Calcutta v. Asutosh De 31 C.W.N. 864 and in Corporation of Calcutta v. Manik Lal De 33 C.W.N. 1173 had observed that while revising a valuation in an appeal u/s 141 of the Calcutta Municipal Act, the Small Cause Court Judge should record evidence in such a way that the High Court, on appeal, might come to its own conclusion as to whether the decision of the Judge was right or wrong on the evidence.

For the aforesaid reasons, we hold that the Subordinate Judge exercising his power u/s 141 of the Calcutta Municipal Act, 1923, (as extended to Howrah Municipality) is a Court exercising special jurisdiction conferred by the said provisions. Section 141 of the Calcutta Municipal Act, 1923, (as extended to Howrah Municipality) does not either expressly or by necessary implication exclude the application of the provisions of the Code of Civil Procedure. In our view, the proceeding in question being before a civil Court exercising a special jurisdiction, the procedure provided in the CPC in regard to the suits should be followed as far as it can be made applicable. In other words, the provisions of Section 141 of the CPC would be attracted see the observations of Mudholkar J. in Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and Another, .

It is common knowledge that in fact a Subordinate Judge hearing an appeal u/s 141 of the Calcutta Municipal Act, invariably follows, as far as possible, the procedure applicable to suits. In this present case, also the Subordinate Judge, Howrah, had proceeded with the hearing of appeal in accordance with the Code of Civil Procedure.

The learned Subordinate Judge dismissed the appeal of the present opposite parties presumably under Order 17, Rule 2 of the Code by disposing the same in the modes directed by Order 9, Rule 8 of the Code of Civil Procedure. Alternatively, the dismissal of the appeal for default was made under Order 41, Rule 17 of the Code. Accordingly, the Court under both Order 9, Rule 9 and under Order 41, Rule 19, has jurisdiction respectively to set aside the said dismissal order or to readmit the appeal, as the case might be, provided the Court is satisfied that there was sufficient cause for non-appearance of Appellants when the appeal was called on for hearing and dismissed for default.

The decision of the Division Bench in Rai Harendranath Chaudhuri Vs. Sm. Daulatmani Chaudhurani, , with regard to Section 27(4) of the Calcutta Thika Tenancy Act, is clearly distinguishable. Lahiri J. delivering the judgment in Rai Harendranath Chaudhuri''s case upon a review of a large number of judicial precedents held that the District Judge in deciding an appeal u/s 27 is a Court, but not an ordinary Court of the country but a Court of special jurisdiction. The learned Judge held that by necessary implication the provisions of the CPC had been made inapplicable to such an appeal u/s 27(4) of the Calcutta Thika Tenancy Act. Therefore, an appeal u/s 27(4) could not be treated as an appeal under the CPC and within the meaning of Article 152 of the Indian Limitation Act, 1908. In view of Section 29(2) of the Limitation Act, 1908, it was held that Section 5 of the Limitation Act did not apply to such an appeal. But the CPC has not been made inapplicable to an appeal u/s 151 of the Calcutta Municipal Act, 1923. On the other hand, by necessary implication an appeal u/s 141 of the Calcutta Municipal Act, 1923, (as extended to Howrah) is to be disposed of according to the Code of Civil Procedure. Further, even under the authority of the decision in Rai Harendranath Chaudhuri Vs. Sm. Daulatmani Chaudhurani, the Court of the Subordinate Judge u/s 141 is at least a Court of special jurisdiction.

In our view, the present case would come within the dicta of the Privy Council in Adaikappa Chettiar v. R. Chandrasekhara Thevar @ Sundara Pandia Thevar 52 C.W.N. 275 (278) : L.R. 74 IndAp 264 that

where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto.... Lord Simons in his judgment in Adaikappa Chettiar v. Rule Chandrasekhara Thevar Supra had referred to two earlier decisions of the Privy Council in Secretary of State for India v. Chelikani Rama Rao 20 C.W.N. 1311 : L.R. 43 IndAp 192 and in Hem Singh v. Basant Das 40 C.W.N. 610 : L.R. 63 IndAp 180. In Chelikani Rama Rao''s case a claim in respect of a land notified as a reserve forest under the Madras Forest Act was rejected by the Forest Settlement Officer. An appeal was preferred to the District, Court u/s 10 of the Act. The District Court pronounced its decision. The Forest Act did not prescribe the procedure for dismissal of such appeal. The Privy Council in Chelikani, Rama Rao''s case 20 C.W.N. 1311 : L.R. 43 IndAp 192 upheld the views of the Full Bench decision of the Madras High Court in Kamaraju v. The Secretary of State for India in Council ILR 11 Mad. 309 that "when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders and decrees, the ordinary rules of the CPC apply." The Privy Council distinguished its earlier decision in Rangoon Botatoung Co. v. Collector, Rangoon L.R. 39 IndAp 197 : 16 C.W.N. 961, given under the Land Acquisition Act on the ground that the proceedings were from the beginning to end ostensibly and actually arbitration proceedings. Lord Shaw in Chelikani Rama Rao''s case 20 C.W.N. 1311 : L.R. IndAp 192 further observed:

The merits of the present dispute are essentially different in character. The claim was the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seized of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation. The objection taken is accordingly repelled.

In our view, the above observations in Chelikani Rama Rao''s case are equally applicable on the question of maintainability of the proceedings for restoration of an appeal u/s 141 dismissed for default by the learned Subordinate Judge, Howrah.

The learned Advocate for both the parties placed before us a number of reported cases dealing with the questions whether or not the proceedings under different special statutes would be governed by the Code of Civil Procedure. The answer to the question in each case primarily depends upon the nature and scope of the provisions of a particular statute under which the particular proceeding took place. We have already held that Section 141 and Section 142 of the Calcutta Municipal Act (as extended to Howrah Municipality), neither expressly nor by necessary implication, exclude the applicability of the Rules relating to ordinary procedures for suits and appeals before exercising a special jurisdiction to an appeal before the Subordinate Judge, Howrah. On the other hand, therefore, it is really not necessary for us to deal with these decisions cited at the Bar with regard to the nature of the proceedings under other statutes. In AIR Commentaries on the Code of the Civil Procedure (8th ed., vol. II, pp. 251-253) a large number of reported decisions of different Courts which deal with the applicability of Section 141 of the CPC to judicial proceedings under various statutes have been mentioned.

The power of the learned Subordinate Judge, Howrah, to restore an appeal u/s 141, Calcutta Municipal Act, 1923, dismissed for default may be upheld on another ground. The learned Subordinate Judge while acting as a Court of Special Jurisdiction, possesses inherent powers to do things which are necessary for ends of justice. It is well-settled that Section 151 of the Code does not confer such inherent jurisdiction upon a Court constituted for the purpose of administering justice according to law, but it recognises that there is a power to act for ends of justice. In case it is contended that the provisions of Order 9, Rule 9 and Order 41, Rule 19 do not apply to an appeal u/s 141 of the Calcutta; Municipal Act, 1923, the Subordinate Judge would be competent to act ex debito justitice. Exercise of such inherent powers would be in no way inconsistent with or come into conflict with the powers conferred upon the '' learned Subordinate Judge to hear and dispose of an appeal u/s 141.

The Supreme Court in income tax Officer Cannanore v. M.K. Mohammed Kunhi AIR 1969 S.C. 430 upheld a decision of the Kerala High Court (reported in 65 Ker. Law Times, 1055) that an appellate Tribunal u/s 254 of the income tax Act, 1961, has the power to grant a stay as incidental or ancillary to its appellate jurisdiction. Grover J. in his judgment in income tax Officer, Cannanore v. M.K. Mohammed Kunhi observed that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. The powers which have been conferred by Section 254 on the appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. Similarly, in the instant case, when jurisdiction has been conferred upon the learned subordinate Judge u/s 141 of the Calcutta Municipal Act, 1923, by necessary implication he has been granted incidental and ancillary powers to restore an appeal which has been dismissed for default due to circumstances beyond control of the Appellant or when the appeal has been decreed ex parte the Court u/s 141, in our view, has power to mitigate such injustice by restoring an appeal in the exercise of its inherent powers. The said inherent powers of the Court u/s 141 should be recognised in order to make the exercise of the jurisdiction under the said provision (viz. Section 141) effective and consistent with the fundamental principles of justice.

We are unable to accept the submission of the learned Advocate for the Petitioners that in case an appeal u/s 141 is dismissed for default, the only remedy of an aggrieved party is to prefer an appeal to this Court u/s 142(3) of the Calcutta Municipal Act, 1932. In the first place, existence of a remedy by way of appeal does not necessarily totally oust the jurisdiction of the Court of the first instance to set aside an ex parte order passed by it in the exercise of its inherent powers. Secondly, in case an appeal u/s 141 is dismissed for default and there is no material on record to indicate whether the Appellants had been prevented by any sufficient cause from appearing at the time of passing of such ex parte order, an appeal u/s 142(3) would be practically nugatory as there would be no material on record to enable this Court to decide whether there was any sufficient cause for non-appearance.

We, accordingly, uphold the jurisdiction of the learned Subordinate Judge to entertain the application for restoration of an appeal u/s 141 of the Calcutta Municipal Act, 1923, (as extended to Howrah Municipality) dismissed for default. But we have already observed that this case should go back to him for a fresh consideration of the merits of the restoration application filed by the opposite parties in accordance with law.

We accordingly, make this Rule absolute in part and set aside the order complained of. The learned Subordinate Judge is directed to rehear the application for restoration of the appeal u/s 141 of the Calcutta Municipal Act, 1923, filed by the present opposite parties in accordance with law.

There will be no order as to costs. Let the records be sent down expeditiously.

S.K. Bhattacharyya J.

I agree.