Rajesh Kr. Agarwalla vs Yan Tikhak and Others

V.D. Gyani, J.—This letters patent appeal arises out of judgment and order dated 13.8.97 passed by a learned Single Judge of this Court in Misc. Appeal (F) No. 113/97, thereby dismissing the said appeal on the ground that the suit as filed by the Plaintiff Appellant before the Deputy Commissioner was itself not maintainable. The reasoning employed by the learned Single Judge is contained in paragraph 9 of the impugned order. It is quoted below:

This being the position of law there is no illegality in the impugned order of learned Deputy Commissioner dismissing the suit at the time of disposing the injunction application itself because he came to the finding that this suit is not maintainable on the grounds mentioned. Accordingly, this appeal shall stand dismissed and all the stay orders also shall stand vacated. The learned Counsel for the Appellant prays two weeks time to file LPA but that prayer shall stand rejected inasmuch as LPA does not lie against MA(F). More so, it is not an appeal under the Code of Civil Procedure. It is an appeal under the Rule of Administration of Justice and in that view of the matter also LPA does not lie.

Mr. P.G. Baruah, learned Senior counsel appearing for the Respondent No. 1, raised a preliminary objection contending that this appeal was not maintainable inasmuch as the learned Single Judge who passed the impugned judgment, refused to declare that the case was a fit one for appeal as required under Clause 15 of the Letters Patent. On the other hand, Shri B.K. Goswami, learned senior counsel for the Appellant, submitted that a plain reading of clause 15 along with Rule 3 in Chapter VIII of the Gauhati High Court Rules would make it clear that even without such a declaration this appeal is maintainable, the impugned judgment not being a judgment in respect of a judgment passed in exercise of appellate jurisdiction by a Court subject to the superintendence of this High Court.

The relevant portion of clause 15 reads as under:

an appeal shall lie to the said High Court...from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court....) of one Judge of the said High Court...and that notwithstanding anything herein before provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court...in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal.

.... (emphasis supplied)

In conformity with the above provisions, Rule 3 of the High Court Rules provides that the appeal under clause 15 of the Letters Patent shall be entertained where there is a declaration by the Judge who passed the judgment that the case is a fit one for appeal except in the case of an appeal from the judgment passed in a First Appeal including a First Misc. Appeal when no such declaration will be necessary.

(emphasis supplied).

The instant Letters Patent Appeal is from the judgment of the Single Judge passed in First Misc. Appeal No. MA(F) 113 of 1997 and hence no declaration as aforesaid is necessary in view of Rule 3 quoted above. Rule 3 only reiterates what is provided for in Clause 15. Under clause 15 the instant appeal lies without such a declaration, the impugned judgment not being a judgment passed in exercise of appellate jurisdiction in respect of a judgment passed in exercise of appellate jurisdiction by a Court subject to the superintendence of this High Court. It is in respect of the detailed judgment dated 26.10.96 as well as the operative portion pronounced on 26.10.96 (Annexure E in Misc. F.A. No. 113/97) passed in exercise of original jurisdiction (as distinguished from appellate jurisdiction) disposing of Title Suit No. 14 of 1996 and connected Misc. Case No. 17 of 1996 by the Deputy Commissioner at Changlang in Arunachal Pradesh, a Court subject to the superintendence of this High Court. Had the Deputy Commissioner passed the judgment in exercise of appellate jurisdiction, the appeal before the Single Judge would have been a second appeal, and for Letters Patent Appeal from the judgment passed in such a second appeal a declaration as aforesaid would have been necessary as such a case would have fallen in second part of Clause 15 of the Letters Patent. Since the instant LPA arises from the judgment of the learned Single Judge passed in First Appeal, no such declaration is necessary. We are, therefore, of clear opinion that the instant appeal is maintainable. In the facts and circumstances of this case, the decision in M/s. New Kenilworth Hotel (P) Ltd. Vs. Orissa State Finance Corporation and others, referred to by Mr. Baruah, learned senior counsel for the Respondent No. 1 is clearly distinguishable.

In first part of clause 15 of the Letters Patent the words "not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court...of one Judge of the said High Court" constitute one expression and if read fully and not in parts shall not exclude a Single Judge judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of original jurisdiction by a Subordinate Court. It would, therefore, be not correct to say that the said expression shall exclude a Single Judge judgment passed in exercise of the appellate jurisdiction. It shall exclude only those Single Judge judgments passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a Subordinate Court. The Apex Court, however, in new M/s. New Kenilworth Hotel (P) Ltd. Vs. Orissa State Finance Corporation and others, held "the judgment from an appellate jurisdiction stands excluded under the first part of Clause 10 (read Clause 15) of the Letters Patent." A question arises whether this interpretation of Clause 15 of the Letters Patent should be treated as the law declared by the Supreme Court within the meaning of Article 141 of the Constitution or just an obiter dicta. Even an obiter is binding on us. But so far as the appeal at hand is concerned, the judgment of the learned Single Judge is in respect of original judgment/order passed by the Deputy Commissioner under Regulation 48 of the Assam Frontier (Administration of Justice) Regulation, 1945 and it was in this appeal against an original judgment and decree that the learned Single Judge has delivered the impugned judgment. Regulation 48 specifically provides for an appeal to the High Court. It is reproduced below for ready reference:

Appeals from Deputy Commissioner. An appeal shall lie to the High Court from an original decision of the Deputy Commissioner if the value of the suit is not less than Rs. 500 or if the suit involves a question of tribal rights or customs, or of the right to, or possession of, immovable property.

So far as the appeal at hand is concerned, Section 104(2) CPC is not attracted. Therefore, the Apex Court''s observations as contained in paragraph 11 of the judgment of New Kanilworth case (supra) are distinguishable.

Basic facts of the case may now be noted: The Plaintiff-Appellant filed a suit on 28.9.96 being Title Suit No. 14 of 1996 in the Court of the Deputy Commissioner-cum-District Judge, Changlang, Arunachal Pradesh. Although he prayed for an interim injunction but his application filed on 28.8.96 was kept pending for over months and no orders as such passed therein, thereby defeating the very purpose of filing an application for ad-interim injunction. Plaintiff-Appellant''s supply of petroleum products had been illegally stopped, as alleged by him. this Court by its order dated 1.10.96 directed the parties to appear before the Deputy Commissioner within six days from the date of the order. The Plaintiff-Appellant was further directed to furnish copies of the plaint and the injunction petition to the Defendants who were expected to file their written statements or objections, if any, within 3 days of such supply and the Court was directed to pass appropriate orders in accordance with law.

What followed thereafter is the order dated 8.10.96 passed by the Deputy Commissioner. Copy of the High Court''s order was placed before him who fixed the following time frame for disposal of the case:

(a) Appearance on 14.10.96, sixth day being Sunday.

(b) To furnish copies of plaint and injunction petition to Defendants on 15.10.96 the day after appearance.

(c) Defendants if so advised may file their written statements/written objection within 18.10.96.

Hearing fixed as per Hon''ble High Court direction within 15 days that is on 25.10.96."

Thereafter on 14.10.96, the Deputy Commissioner entertained a telephonic prayer made by the Respondent No. 1, the order is quoted below for ready reference:

Shri Rajesh Kumar Agarwalla alias Jallan Plaintiff in instant case present, Defendant Shri C.N. Manloong and Shri J.M. Mahanta, DGM (Sales) IOC, AOD, Digboi also present.

Shri Yan Tikhak not present. Shri S. Borgohain, Advocate for Mr. Yan Tikhak contracted over phone that he was held up to the breakdown of vehicle at Tangakhat. He will attend Court on 15.10.96 for copies as informed by him through PA to D.C.

He made a telephonic prayer to allow him to appear on 15.10.96 for copies and his telephonic information was made to accept as appearance because of situation beyond his control.

In the interest to follow in the time schedule as directed by the Hon''ble High Court prayer of the Respondent No. 1 is accepted.

Copies to be furnished by the Petitioner on 15.10.96. Also copies can be provided to the Respondent who are present the Court today if same is ready.

On 18.10.96, the Defendant Respondent, as has been noted by the Deputy Commissioner, submitted their written statement and objections and on 28.10.96 the Deputy Commissioner passed the following order:

The facts and circumstances stated above and in view of the discussion and observation made herein and above I hold that the suit is not maintainable that Title Suit No. 14/96, accordingly dismissed. And accordingly inconsequence the injunction petition also is not maintainable and prayer made thereat is therefore rejected and Misc. (J) 17/96 is dismissed.

If so advised the Plaintiff may prefer money suit for relief.

The Plaintiff is directed to hand over the possession of Petrol Pump to Defendant No. 1 being the licence holder.

The Defendant No 1. personally be responsible for its working and maintain supply of petroleum products to the customers.

Defendant No. 3 will resume supply of a petroleum products to the licence holder with immediate effect.

In case licence holder fail to or become incapable to run the business the licensing authority will make alternative arrangement to run the Petrol Pump departmentally or any other suitable and legally approved manner to ensure supply to the customers of the essential products.

Judgment delivered in the open this 25th day of October, 1996.

Copies be made available to the Plaintiff and the Defendants and EAC, Jairampur as Petrol Pump is located at Jairampur.

Further, though at the conclusion of the judgment submission of the Plaintiff for sometime to hand over the Petrol Pump which is granted and time for hand over not later than 28th October, 1996 at 1600 hours and in between date of pronoucement of the judgment and date of hand over the Plaintiff must not do any alternation/position to the situation and conditions of the Petrol Pump." 8. It was vehemently argued that the Central Laws both civil and criminal as in force in rest of the country are not applicable in their entirety to the State of Arunachal Pradesh. We are not at this stage called upon to decide the question of extent of applicability of Central Laws, what we are primarily concerned with is the manner in which the suit has been disposed of. Bare minimum procedural fairness, without going into technicalities of law, is what is expected of any Judge, whether he is in Arunachal Pradesh or Nagaland, it is immaterial whether judiciary is separate from the executive, so far as the first and foremost condition of being fair and judicious in approach required of any Judge, be he an executive or a judicial officer is concerned. It goes without saying that any officer entrusted with the duty of deciding a case, has to be judicious, free from bias, it is his first duty and quality.

Now let us advert to the facts and as revealed from order-sheet dated 14.10.96 drawn by the trial Judge who was contacted on phone by counsel for the Respondent No. 1. It is not so much a question granting an adjournment or exemption from personal appearance, what is important is the easy accessibility of the party on phone.

Let us have a look at the manner in which the suit has been disposed of. The written statements were filed by the parties. The Defendants 2 and 3 filed their written statements on 18th October, 1996. The Defendant No. 1 submitted his written objection against the petition under Order 39 Rules 1 and 2 read with Section 151 CPC on 16th November 1997. What is significant to be noted at this stage is that while the Plaintiff was examined by the Deputy Commissioner as also the other two Defendants, the Defendant No. 1 neither offered himself for such examination nor was he examined by the Deputy Commissioner. He did not even filed a written statement. It appears that the Deputy Commissioner treated the written objection in reply to injunction application as his written statement. The verification to this written objection reads as follows:

I, Shri Yan Tikhak, son of Late Manjoy Tikhak, aged about 53 years, by profession businessman, resident of Miao, Dist. Changlang, hereby declared that the contents of the petition from para 1 to 34 are true to the best of my knowledge and belief and information.

Howsoever liberally construed stating facts as true to the best of one''s knowledge, belief and information hardly makes any sense. The law provides that:

...every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

It can always be argued and had in fact been argued that the CPC is not applicable to the State of Arunachal Pradesh, even rules of pleadings may not be applicable but that does not mean that an officer who is called upon to decide a case injudicious manner should so conveniently divorce common sense approach when facts are stated to be true to one''s best of knowledge, belief and information. Should not the officer himself address to those best of knowledge, belief and information ? If this was the state of pleadings, what prevented the Deputy Commissioner from examining the Defendant No. 1 ? On what basis has he judged the veracity of the stated facts in the written objection filed by Defendant No. 1 ? No issues as such were framed again that may be dispensed as the CPC in its strict sense is not applicable to the State but in no case common sense judicious approach can be dispensed as appears to have been done in the instant case.

When it is so vehemently urged on behalf of the Defendant Respondent No. 1 that the law relating to registration of documents, such as, power of attorney is not applicable to the State, without going into the technicalities and finesses of law, suffice it to note that it was none else than the Respondent No. 1 himself who had filed a writ petition before this Court being Civil Rule No. 5206/96, seeking Mandamus from this Court to the registering authority under the Registration Act to register a document purporting to be revocation of power of attorney. The order dated 9.10.96 passed in the above Civil Rule is available on record. A party cannot be allowed to boil hot and cold in the same breathe. The learned Deputy Commissioner has very conveniently ignored this aspect of the matter while dismissing the suit as not maintainable. It cannot be gain said that in seeking injunction the equitable jurisdiction of the Court was sought to be invoked by the Plaintiff, his claim was resisted by the Defendants. The Defendant Respondent No. 1 on his own showing had applied for an agency of a retail petroleum outlet which the Defendant No. 3 had in May, 1984 decided to establish in Changlang district. Applications were invited from suitable persons, unemployed graduates belonging to Scheduled Tribe within the State of Arunachal Pradesh and the Defendant Respondent No. 1 who is a graduate of Gauhati University belonging to Scheduled Tribe recognised as such in the State of Arunachal Pradesh had applied for the same and was offered the agency. It is his pleaded case:

That the Defendant No. 1 is a man of social standing. He became the Member of Arunachal Pradesh Public Service Commission in the year 1988. As a matter of fact he continued as the Member of the said Public Service Commission from 1.4.88 to 31.3.94.

In face of this admitted pleaded facts the Defendant Respondent No. 3, the Indian Oil Corporation has come out with a naive version as contained in paragraph 3 to 6 of the written statement. Having secured the agency for a retail outlet in the individual name the Defendant Respondent No. 1 converted the same into a partnership firm in the name and style of M/s. Tikhak Auto Agency as is evident from letter dated 9th July, 1984 filed as Annexure-1A along with written statement filed by the Indian Oil Corporation. Now this agency is subject to terms and conditions as contained in the agreement filed by the Indian Oil Corporation. Condition No. 35 of the agreement reads as follows:

The Dealer shall not sell assign, sub-let mortgage, charge or part with or otherwise transfer the premises or any part thereof his interest in the Dealership or any right or interest or benefit conferred by this Agreement or grant any licence in connection with the said premises and/or outfit or any part thereof to any person firm or company nor allow any other person firm, or company to use the premises or the outfit or any part thereof except to the extent necessary under the terms of this Agreement and specifically permitted in writing by the Corporation.

Similarly Condition No. 47 prohibits - "Except with the previous written consent of the Corporation:

(i) The Dealer shall not enter into any arrangement, contract or understanding whereby the operations of the Dealer hereunder are or may be controlled, carried out and/or financed by any other person, firm or company whether directly or indirectly and whether in whole or in part.

(ii) The Dealer himself (if he be an individual) or the partners/members or any of them of the Dealer (if the Dealer is a firm/cooperative society) shall not take up any other employment or engage in any other business apart from the running of the retail outlet which is the subject matter of this Agreement, (iii) The Dealer (if it be a firm or a cooperative society) shall not effect any change in its constitution whether in the identity of its partners/members or in the share/shareholding of any of them, or in the terms of the Deed of Partnership or of the Bye-laws as the case may be.

In the event of the death of any partner/member of a firm/co-operative society which has been appointed as a Dealer hereunder the surviving partners/members hereby agree to indemnify and keep indemnified the Corporation against any claims or demands which may be made by the heirs of the deceased partner/member.

On face of these conditions as incorporated in this agreement filed by the Defendant-Respondent No. 3, Plaintiffs claim for injunction was essentially based on agreement which was in contravention of the agreed terms of contract between the Indian Oil Corporation and the Defendant No. 1.

It would not be out of place at this stage to note the pleaded case of the Defendant No. 2 who came out with a categorical admission in paragraphs 5 and 7 of the written statements virtually admitting the Plaintiffs case. Both these paragraphs are reproduced hereunder:

That the contents of para 6 of the plaint are admitted by this answering Defendant. It is specifically admitted that due to financial hardship the answering Defendant was unable to run the business of the petroleum products under the Licence No. ARUN-38 stands in the name of the Defendant No. 1 i.e. Shri Yan Tikhok and the name of the firm is M/s. Tikok Auto Agency, Jairampur, Arunachal Pradesh, and approached the Plaintiff for financial help alongwith the Defendant No. 1 Mr. Yan Tikok (the Defendant No. 1 in this suit).

It is submitted that the Plaintiff agreed to help the Defendant Nos. 1 and 2 by providing necessary finance provided that the management of the business will be under the control of the Plaintiff and the Defendant No. 2 jointly, to which both of us i.e. Defendant No. 1 and this answering Defendant agreed ; and as per consent and permission of the Defendant No. 1 the answering Defendant executed an Irrevocable Power of Attorney being No. 298 of 1991 of Tinsukia Sub-Registry Office on 16.7.91 in favour of the Plaintiff to control and manage the said business of M/s. Tikok Auto Agency, Jairampur and since 1991 the Plaintiff and the answering Defendant had been carrying on the business peacefully with the knowledge of the Defendant No. 1.

It is further submitted that the Defendant No. 2 during the tenure of his sole management of the said business from 1988 to 1991 had invested the huge amount for which he had taken some loan from various persons which was also within the knowledge of the Defendant No. 1 ; and now to repay the said loan amount which was obtained for the said petroleum products business of M/s. Tikok Auto Agency this answering Defendant was in need of some money. The answering Defendant had taken the said amount from the Plaintiff by executing a Deed of Mortgage being No. JUD. 1/96 dated 8.1.96 duly authenticated by the Judicial Magistrate, and against the said amount of Rs. 25,00,000/- the Defendant No. 2 had mortgaged the business establishment of M/s. Tikok Auto Agency, Jairampur with the Plaintiff and since then the Plaintiff alone is carrying on the said business of petroleum products peacefully and it is within the knowledge of the Defendant No. 1.

That as regards the contents of para 9 of the plaint it is submitted that the Defendant No.2 is admitting the said fact that the Defendant No. 1 executed an Irrevocable Power of Attorney to and in favour of this answering Defendant and the Defendant No. 2 also executed an Irrevocable Power of Attorney with the consent and knowledge of the Defendant No. 1 in favour of the Plaintiff to control and manage the business of M/s. Tikok Auto Agency, Jairampur when the Plaintiff provided us the financial help in the year 1991 as stated above. The Plaintiff had submitted all copies of the Power of Attorney and other documents to the Defendant No. 3 i.e. Indian Oil Corporation (Marketing Division), Digboi for their necessary records and information, the Defendant No. 3 had been and is supplying the petroleum products to the Plaintiff in the name of M/s. Tikok Auto Agency regularly on the basis of the said authority.

The trial Judge has in hot haste proceeded to dismiss the suit and at the same time directed the Respondent No. 3 to resume supply of petroleum and HSD products to Defendant Respondent No. 3 for which even the defendent Respondent No. 1 had not prayed for even in his written objection which the trial Court has treated as written objection. There is no counter claim put forth by the Defendant Respondent No. 1, yet the gratuitous relief granted to him by the learned Deputy Commissioner even while dismissing the Plaintiffs suit. The statutory laws, such as, the Code of Civil Procedure, Indian Registration Act and the Contract Act may not be applicable to the State of Arunachal Pradesh as argued by the learned Counsel, but that does not necessarily mean that the basic principles of equity are also not applicable and it is a fundamental principle of equity that one who comes to the Court of equity must come with clean hands. In the instant case the record reveals that neither party came to the Court with clean hands while the Defendant Respondent No. 3 in his written statement admits that he said petroleum pump is owned by the IOC and nobody including the Defendant No. 1 can give or take mortgage of such property. The licence of M/s. Tikok Auto Agency and the building and land where the petroleum pump is, is non-transferable, yet the fact remains that it was transferred. Although the Defendant Respondent No. 1 claims that he came to know in August, 1996 that some "foul play" has been done in respect of operating the petrol pump and the Plaintiff has been operating the petrol pump behind the back of the Defendant No. 1 without his knowledge. Now this "foul play" was known to the Defendant No. 1. The Corporation pleads ignorance but despite having come to know of the "foul play" after filing of the written objection by Defendant No. 1, on 16th October, 1996, no action appears to have been taken by the Defendant Respondent No. 3.

We would like to make it clear that in this appeal we are not going into the question of allotment of petrol pump and it is an admitted position that the licence as granted to the Defendant Respondent No. 1, on his own showing, has expired by the end of December, 1997 (see paragraph 20 of the written objection). The Defendant Corporation admits this position that the licence No. ARU-38 in the name of M/s. Tikok Auto Agency is valid upto 1997. Now that period has already expired. Now adverting to the direction for resuming supply of petroleum products to the licence holder, that is Defendant Respondent No. 1 with immediate effect, can by no stretch of imagination can be sustained in law unless the licence itself is renewed. In view of the gross and glaring irregularities that has now come to light, the Defendant Respondent No. 3, the Deputy General Manager (Sales), IOCL is expected to act strictly in accordance with law and rules following the terms and conditions of the agreement in their true letter and spirit in granting/renewing a licence. The Corporation must act in just, fair and reasonable manner. The direction made by the Deputy Commissioner in this behalf being contrary to the norms of fairness of law is liable to be quashed, it is accordingly quashed.

Now so far as the handing over of possession of petrol pump to Defendant Respondent No. 1, being the licence holder, as directed by the Deputy Commissioner, this direction can also not be given effect to in view of the admitted position that Defendant Respondent No. 1 as on date, is not holding a licence, his licence having expired by 31st December, 1997. That apart, it is his pleaded case:

That the said petrol pump is owned by Indian Oil Corporation Ltd., so it is the property of Central Govt. and no body including Defendant No. 1 can give or take mortgage of such property. The licence of Tikhak Auto Agency and the building and the land where petrol pump is built is also non-transferable more particularly to an non-Arunachali. Therefore, Plaintiff has no leg to stand, no right or title to sue (except genuine monetary claim) and therefore the present suit is liable to be dismissed.

In face of this pleaded case of Defendant Respondent No. 1, the direction as regards handing over of possession cannot be given effect to, it is liable to be quashed and is accordingly quashed. It is now for the Corporation to take a decision strictly in accordance with law in just fair and reasonable manner as already indicated above. So far as the dismissal of the suit is concerned, as rightly argued by Mr. Goswami, the trial Court has acted in hasty manner. A bare minimum procedural fairness irrespective of the question of applicability of the CPC to the State of Arunachal Pradesh has not been followed. That part of the impugned order dismissing the suit is liable to be set aside, it is accordingly set aside and the matter is remanded back to the trial Court for disposal in accordance with law. So far as the grant of ad-interim injunction is concerned, being a discretionary relief, we do not find any reason to interfere with the same. The appeal stands disposed in terms indicated above. There shall be no order as to costs.