Vanlalveni vs Tlanglawma

S.K. Kar, J.—Under Rule 18 of the "Rules for Regulations of the Procedure of the Officers appointed to Administer Justice in the Lushai Hills, 1937", presented this appeal by the appellant, Smt. Vanlalveni against the respondent, Tlanglawma to challenge the judgment and order dated 27.6.2000 passed by learned Addl. District Magistrate (J), Aizawl in Civil Appeal No. 18/2000 before him.

The appeal was admitted on the formulation of the following substantial question of law by this Court, vide order dated 27.7.2000.

"(1) Whether the first appellate Court of learned ADM(J) Aizawl could have entertained in Civil Appeal No. 18/2000 being barred by limitation.

(2) Whether the learned ADM(J) Aizawl has jurisdiction to take up the Suit No. 3/98."

The brief facts are as follows : The present appellant instituted a declaratory Suit, Suit No. 3/98, originally before the learned Assistant to Deputy Commissioner, Aizawl District, Aizawl stating that the she advance loan of Rs. 47,500/- to Rokima (now dead), brother of the respondent on 24.6.97. In acknowledgement thereto, Rokima executed an agreement to repay the amount of loan on or before June 1998 failing which, the appellant will take into her possession the land alongwith the structures thereupon standing in the name of the respondent and covered by LSC No. 270/97 measuring 127 Sq.m., the borrower Rokima (brother of the respondent) died on 2.9.97 without making the payment of the loan and on demand, the respondent also failed to make payment. Accordingly, the appellant approached the Revenue authority for transferring the LSC No. 270/97 in her favour but, the Revenue authority refused to do so, unless she produces an order from the court. Accordingly she instituted a Suit for such a declaration. She also stated in her plaint that LSC was handed over to her during the transaction of money.

The appellant contends that in spite of summons being issued, respondent did not appeared in the suit and accordingly the learned trial court decreed the Suit ex-parte - recording her evidence and another witness on 28.7.99. That as per agreement (ext. p-1) and the subsequent decree passed in her favour of the appellant/plaintiff is entitled to get the land and the house thereupon covered by LSC No. 270/97 transferred in her name.

Respondent, however, preferred an appeal against the ex-parte judgment and decree passed before the learned Addl. District Magistrate (J) on the strength of Rule 18 of the Rules for Regulations of Procedure of Officers Appointed to Administrative Justice in the Lushai Hill, 1937 and u/s 96 of CPC which was registered as appeal No. 18/2000. Learned Appellate Court vide judgment and order dated 27.6.2000 set aside the judgment and decree passed by the learned trial court on 28.7.99 holding, inter alia, that both the parties being Tribal, the Assistant to the Deputy Commissioner had no jurisdiction to try this Suit. Respondent also contended therein that no summon was served on him before passing the ex-parte decree.

The appellant before this Court submits that any such appeal presented by the respondent being not presented within 30 days as prescribed by law/rules was time-barred and accordingly, the judgment and decree passed by the learned appellate court was without jurisdiction. That learned appellate court committed an error by opining that Assistant to the Deputy Commissioner had no jurisdiction to try the suit etc.

I have heard Mr. P.C. Prusty, learned counsel appearing for the appellant. None appeared for the respondent. The appellant has filed an affidavit that notice of this appeal was duly served on the respondent accordingly appeal be heard ex-parte.

I have considered the submission made by the learned counsel appearing for the appellant and perused the materials in the case record of the appeal No. 18/2000 which was called for. The original case of the trial court is not available before this court. There is Annexure-1, photo copy of the plaint and also photo copy of ext.p-1 of the original suit.

The English translation of the document ext.p-1 which, allegedly, had given rise to the cause of action for the suit is as follows.

(Original in Mizo) -

"I, Shri Rokima S/o Thangchungnunga has taken a loan of Rs. 47,500/-(Rupees forty seven thousand five hundred) only from Vanlalveni to refund the said amount on or before the month of June 1998. If I cannot refund the said amount my brother Tlanglawmas'' LSC No. 270/79 area 127 sq.m. alongwith the structure standing thereon will be taken by Vanlalveni without any sort of dispute/opposition. Vanlalveni will take over the said land alongwith structure.

In this connection, my elder brother Tlanglawma will have no say in this regard".

The only ground for presenting this Second appeal is that the first Appellate Court decided the appeal although it was barred by time. Memo of appeal presented by the appellant before the First Appellate Court has mentioned that there was a delay due to the laches on the part of the appellants'' counsel in handing over the copy of the judgment and decree but even then the appeal was presented in time. Since no Certified Copy of the judgment is in record, but only a photo copy has been filed, it is difficult to ascertain whether there was any delay and the appeal was presented beyond the prescribed period of limitation. A photo copy of the judgment and order of the trial court enclosed with memo of appeal shows that it was served on the appellant on 26.8.99.

Be that as it may, there is nothing on record to show that the present appellant, i.e. respondent before the Learned First Appellant Court, raised any objections on the question of limitation before the first appellate court. The judgment of the learned appellate court only made the following observation in so far the contention of the respondent raised before it.

"On the other hand, the respondent submitted that she is only a layman and she does not know whether the Trial Court has jurisdiction or not".

Therefore, there is no evidence that objection to limitation was taken before the first appellate court.

Law is well settled in the context of limitation that the objection on the ground of limitation cannot be raised for the first time in the second appeal, if such objections was not taken before the First Appellate Court. I quote -

"The point regarding limitation is a mixed question of law and fact and cannot be raised for the first time in the 2nd appeal without the foundation being laid earlier".

AIR 1982 Del 520 : Navak Chand v. Chand Kishore.

Moreover, there is no materials before this court also to record any finding on the question of any such limitation.

Incidentally, it may be noted from contents of the plaint photo copy of which is available in the case record, that the present appellant as plaintiff had confused whether the basic document upon which cause of action for the Suit was traced was a hand-note, or a promissory note or an agreement. Then again the suit was instituted for as a declaratory suit with fixed court fees of Rs. 25/- but the basic documents will show that there was only a pecuniary liability on the part of the deceased Rokima and not the present respondent Tlanglawma. The present respondent was only a witness to the said agreement/hand note. There is nothing to show that the respondent Tlanglawma ever incurred any liability under the said hand note/agreement. It was mentioned in the said agreement ext.p-1 that LSC had been handed over to the lender/plaintiff but there is nothing in the judgment of trial court to show existence of any such document. Therefore, it will be opined that the judgment of the trial court was under misconception of law and without jurisdiction. It should have been either a Money Suit or Title Suit on mortgage. Therefore, there is a necessity to quash the entire proceedings starting from the original court upto the stage of first appellate court by exercising of the inherent power u/s 151 of C.P.C. for ends of justice. Such misconception of law cannot be allowed to be sustained.

It may be observed from contents of the impugned judgment that while allowing the appeal the first appellate court directed the respondent/plaintiff to file the suit afresh in proper forum within three months, if so advised. But without complying with the direction, the respondent has chosen to prefer this second appeal under misconception of law. It was rightly held by learned court below that both parties being tribal suit should have been instituted before the District Council Court and not before Asstt. Deputy Commissioner to Deputy Commissioner.

Be that as it may, concluding I find that there is no merit in the second appeal which is dismissed.