High Court of Meghalaya

State Of Meghalaya & Anr. vs . Khasi Hills Archery Sports on 29 February, 2024

Author: W. Diengdoh

Bench: W. Diengdoh

 Serial No. 01
 Supplementary List


                        HIGH COURT OF MEGHALAYA
                              AT SHILLONG
CRP. No. 36 of 2022
                                                    Date of Order: 29.02.2024
State of Meghalaya & Anr.         Vs.          Khasi Hills Archery Sports
                                               Institute (KHASI) & 3 Ors.

Coram:
              Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   : Mr. S. Sen, Sr. GA. with
                                    Ms. R. Colney, GA.
                                    Mr. A. Momin, GA.
For the Respondent(s)             : Dr. N. Mozika, Sr. Adv. with

Ms. L.M.D. Marak, Adv. (For R 1) Mr. Philemon Nongbri, Adv. (For R 2) Mr. C.C.T. Sangma, Adv. vice Mr. T.T. Diengdoh, Sr. Adv. (For R 3 & 4).

1. An application under Article 227 of the Constitution of India was

preferred by the petitioners being the State of Meghalaya and the Additional

Commissioner, Taxes Department, being highly aggrieved and dissatisfied

with the order dated 08.08.2022 passed by the learned Assistant District

Judge, Shillong, in Misc. Case No. 1(H) of 2021 arising out of T.S. No

11(H) of 2020.

2. From the averments made in the petition, what could be

understood is that the respondent organisation/Khasi Hills Archery Sports

Institute (KHASI) is involved in the organisation of the game of arrow

shooting at Shillong since 29.04.1983 being duly licensed for the same under

the provision of the Meghalaya Amusement and Betting Tax (Assam Act

No. VI of 1939 as adapted and modified by Meghalaya).

3. In addition to the respondent, there are three other Organisations

who are engaged in the game of arrow shooting in Shillong, namely, the

Meghalaya Archery Thoh Team Welfare Association (MATTWA), Khasi

Hills Bookies Welfare Association (KHBWA) and the Meghalaya Book

Makers Welfare Union (MBMWU).

4. As per Rule 42 (2) of the Meghalaya Amusement and Betting

Tax (Amendment) Rules, 1982, one of the conditions for which the license

was issued to the respondent organisation is that the total number of shooters

should not be less than thirty or more than fifty with twenty-six of them from

Khasi and eight shooters each from the three Organisations abovenamed.

5. In the month of January, 2016, a dispute arose amongst the

members of the MBMWU with two factions emerging, each insisting that

they be allowed to field eight shooters each.

6. If this is allowed, then the total number of shooters would exceed

the stipulated fifty and accordingly, the respondent/KHASI suspended

MBMWU from taking part in the arrow shooting and the eight numbers of

shooters previously allotted to the organisation was divided between the

respondent/KHASI who was added with four shooters to its tally and two

each to MATTWA and KHBWA.

7. In the meantime, the respondent/KHASI had given some time to

the said factions of MBMWU to settle their differences. On 02.05.2016, a

letter was addressed to the respondent, such letter being signed by the leaders

of the two factions, MBMWU, wherein it was informed that the internal

differences between them had been resolved and a request was made, firstly

for revocation of their suspension and secondly, to allow them to take part in

the game of arrow shooting. A letter dated 24.05.2016 was also issued upon

the petitioner with a prayer to issue necessary orders as per the provision of

the relevant Act and Rules to prevail upon the respondent No. 1 to allow the

MBMWU to take part in the daily game of arrow shooting.

8. The Commissioner of Taxes acting on Government instructions

had vide letter No. CTAB(TT)4/93/503, dated 09.06.2016 (Annexure-11)

instructed the respondent to revoke the suspension order of MBMWU. On a

query by the respondent No. 1, the petitioner No. 2 vide letter No.

CTAB(TT)4/93/616, dated 23.06.2016 (Annexure-14), had directed the

respondent No. 1 to readmit MBMWU and the eight shooters originally

allotted to it and in the process, the respondent No. 1 and the two

Organisations are to revert back to the original number of shooters allotted to

them.

9. The respondent No. 1, being dissatisfied with the said order dated

23.06.2016, preferred a writ petition before this Court being WP(C) No. 225

of 2016. The same was disposed of vide order dated 03.10.2017 by which

this Court directed the parties to settle the dispute and for the respondent to

comply with the said order dated 23.06.2016. The respondent then went up

on appeal against the said order dated 03.10.2017 before a Division Bench of

this Court. The Division Bench upon hearing the parties, had allowed the

respondent to withdraw from the writ petition itself so as to take recourse to

other appropriate remedy in accordance with law.

10. Accordingly, the respondent filed a representation dated

16.10.2017 before the appropriate authority and the same was disposed of by

the petitioner No. 2 vide order dated 11.06.2020 which was conveyed to the

respondent vide Letter No. No. CTAB(TT)4/93/Pt/305/119 (Annexure-18),

such order, in effect rejecting the prayer made by the respondent.

11. The respondent filed yet another representation dated 23.06.2020

(Annexure-19) with a prayer for reconsideration of the letter/order dated

11.06.2020, but the same was disposed and communicated vide letter No.

CTAB(TT)4/93/Pt./158, dated 27.08.2020 (Annexure-20) with directions to

the respondent to comply with the order dated 11.06.2020 and to file a

compliance report within seven days therefrom.

12. The respondent once again approached this Court in WP(C) No.

281 of 2020, but in course of hearing the same was sought to be withdrawn

with liberty to avail alternative remedy available under law which was

permitted vide order dated 17.09.2020.

13. The respondent then instituted a civil suit being Title Suit No.

11(H) of 2020 along with an application for grant of ad interim injunction

registered as Misc. Case No. 10(H) of 2020 before the Court of the Assistant

District Judge, Shillong challenging the orders dated 23.06.2016, 11.06.2020

and 27.08.2020. In this regard, status quo order dated 08.10.2020 was

obtained by the respondent.

14. It may be mentioned that during the pendency of the said Title

Suit No. 11(H) of 2020, the respondent received letter dated 05.10.2020

issued by the petitioner No. 2 before the Trial Court, which letter pertains to

a show cause to the respondent as to why the application for renewal of the

organizer license issued to the respondent should not be rejected for violation

of the Meghalaya Regulation of the Game of Arrow Shooting and the Sale of

Teer Tickets Act, 2018 and the connected Rules.

15. The respondent, on receipt of the said letter dated 05.10.2020

brought the same on record before the Trial Court by way of an additional

affidavit dated 07.10.2020 and on prayer made, the learned Trial Court

taking cognizance of the same, vide order dated 08.10.2020 ordered for

status quo to be maintained by the parties.

16. It is also seen from the records that the respondent has stated that

it was in receipt of a letter under Memo No. CTAB(TT)4/93/Pt/300 dated

22.01.2021 issued by the petitioner No. 2 herein directing the

respondent/organisation to cease the operation of the game of arrow shooting

conducted by it on the ground of violation of sub-Rule (7) of Rule 3 read

with sub-Rule (7) of Rule 7 framed under the Meghalaya Regulation of the

Game of Arrow Shooting and the Sale of Teer Tickets Act, 2018. On

27.01.2021 on the direction of the petitioner No. 2 enforcement officers have

forcibly tried to enter the shooting ground and stopped the game of arrow

shooting conducted by the respondent organisation.

17. Being aggrieved by such action of the petitioner No. 2 herein, the

respondent organisation as petitioner preferred an application under Section

94(e) read with Section 151 of the Code of Civil Procedure with a prayer for

stay of the operation of the letter dated 22.01.2021. The said petition was

registered as Misc. Case No. 1(H) of 2021.

18. The learned Trial Court after hearing the parties, had accordingly

passed the impugned order dated 08.08.2022, whereby the operation of

Memo No. CTAB(TT)4/93/Pt/300 dated 22.01.2021 was stayed. Hence this

application.

19. When this matter came up for hearing, the respondents have

raised the issue of maintainability and as such, as agreed to by the parties,

this issue is decided to be answered first.

20. The respondent No. 1 through Dr. N. Mozika, learned senior

counsel has submitted that the challenge to the maintainability of this

revision is on the following grounds:

i. That the original parties in Title Suit No 11(H) of 2020

have not been arrayed as party respondents in this

application, particularly, defendant Nos. 3 and 4 therein.

ii. That this revision is barred by the principle of delay and

laches; and

iii. That the impugned order dated 08.08.2022 is an appealable

order and as such, revision does not lie.

21. The learned senior counsel has asserted that at the time of

institution of the Title Suit by the respondent No. 1 as plaintiff, the

defendants in the suit are:-

i. State of Meghalaya, Represented by the Secretary, ERTS

Deptt, Government of Meghalaya, Shillong.

ii. Commissioner of Taxes, Government of Meghalaya,

Shillong.

iii. The President, Meghalaya Book Makers Welfare Union

(MBMWU).

iv. The General Secretary, Meghalaya Book Makers Welfare

Union (MBMWU).

v. The President, Meghalaya Archery (Thoh Team) Welfare

Association (MATTWA).

vi. The President, Khasi Hills Bookies Welfare Association

(KHBWA).

22. In this respect, it was pointed out that in this instant revision

petition, the State petitioners have impleaded only the respondent No. 1 as a

party. However, it was only later in course of the proceedings that this Court

has impleaded the defendant Nos. 5 and 6 as respondent Nos. 3 and 4

respectively, on their own intervention. The original defendants in the suit,

Nos. 3 and 4 have not yet been impleaded.

23. The learned senior counsel has referred to the case of Notified

Area Committee Buria, Tehsil Jagadhri v. Gobind Ram & Ors. reported in

ILR Punjab & Haryana, Vol-XII, 1066 to say that in this case, the full bench

of the Hon'ble Punjab and Haryana High Court, while answering a reference

on the legal question as to whether party to the original suit not impleaded in

appeal within the period of limitation can be added as party later on, has held

as under:

"(1) that if a party to the original proceedings is not impleaded in appeal on account of bonafide and honest mistake on the part of the appellant, the appellate Court has ample powers under Order XLI rule 20, Civil Procedure Code, to allow the mistake to be rectified and the party to be added.

(2) that Section 107(2) read with Order 1, rule 10, Civil Procedure Code, enables the appellate Court to add parties in appeals in suitable cases, but this power must be exercised within the period of limitation; and (3) that apart from the provisions of Order XLI rule 20, Civil Procedure Code, the appellate Court has inherent powers to permit parties to be added to appeals in suitable cases and the language of rule 20 of Order XLI is not exclusive or exhaustive so as to deprive the appellate Court of its inherent powers in this respect."

24. Another case cited in this regard is the case of Hindustan

Petroleum Corporation Limited v. Jaipur Development Authority, reported in

2012 SCC OnLine Raj 652, para 7, which is reproduced below as:

"7. At the outset, it is required to be noted that though the appellant-plaintiff has filed the suit against the present respondent and three others, the present appeal is filed only against the respondent-JDA-original defendant No. 1, without joining the other defendants i.e. defendants Nos. 2 to 4 as party-respondents in the present appeal.

On the query put by the court, the learned counsel Mr. Kasliwal submitted that since the injunction was sought only against the respondent-defendant No. 1, other defendants were not joined as party-respondents in the present appeal. The said submission of Mr. Kasliwal is not acceptable for the simple reason that the appellant- plaintiff having filed the suit for declaration and permanent injunction against all the defendants, all the defendants would be necessary as well as the proper parties in T.I. Application as well as in the present appeal arising out of the order passed in T.I. Application. The present appeal therefore, is held to be bad by non-joinder of necessary parties. Further it is also very surprising that the appellant-plaintiff has filed the suit seeking declaration to the effect that the defendant Nos. 2 to 4 be declared as owners by adverse possession in respect of the disputed land bearing Khasra No. 150. This court fails to understand as to how such a relief could be prayed for in the suit by the appellant, when the defendant Nos. 2 to 4 have not claimed any such ownership by adverse possession against the respondent- defendant JDA in respect of the said land, either by filing separate suit or by impleading themselves as party- plaintiffs in the present suit. It is needless to say that the party claiming continuous, uninterrupted, open and hostile possession for more than 12 years against the true owner could claim ownership by adverse possession, and that such a relief could not be asked by the third party in the suit filed against the true owner as well as against the parties in whose favour such prayer is sought. It is also pertinent to note that when the appellant-plaintiff prayed for such relief in the suit, it would imply that the plaintiff had accepted the respondent-defendant No. 1 as the true owner of the land in question, as the adverse possession could be claimed only against the true owner of the property in question. In the opinion of the court, such a suit itself does not appear to be prima facie maintainable in the eye of law, more particularly when the persons in whose favour the decree for adverse possession has been sought, have not come forward with such a plea against

the respondent-defendant No. 1. Having said that the court is of the opinion that when the suit itself is not prima facie maintainable, the appellant-plaintiff would not be entitled to claim any relief by way of temporary injunction in such suit."

25. The learned senior counsel has submitted that from the decisions

cited (supra), what is understood is that it is well settled that parties to the

original suit must be made parties to any subsequent proceedings, be it in the

form of an appeal or revision which was not done so in the instant

proceeding.

26. The second contention of the learned senior counsel is that the

revision petition under Article 227 of the Constitution of India is hit by the

principle of delay and laches as the impugned order was passed on

08.08.2022, whereas this application was filed only on 08.12.2022, 122 days

later. The case of Bithika Mazumdar and another v. Sagar Pal and others,

(2017) 2 SCC, 748, para 4 was referred to in support of his contention. The

same reads as follows:

"4. It is an admitted position in law that no limitation is prescribed for filing application under Article 227 of the Constitution. Of course, the petitioner who files such a petition is supposed to file the same without unreasonable delay and if there is a delay that should be duly and satisfactorily explained. In the facts of the present case, we find that the High Court has dismissed the said petition by observing that though there is no statutory period of limitation prescribed, such a

petition should be filed within a period of limitation as prescribed for applications under Sections 115 of the Code of Civil Procedure. This approach of the High Court cannot be countenanced. As mentioned above, in the absence of any limitation period, if the petition is filed with some delay but at the same time, the petitioner gives satisfactory explanation thereof, the petition should be entertained on merits."

27. It is submitted that though, there is no time period for filing an

application under Article 227, however, if the same is filed with some delay,

there ought to be satisfactory explanation for such delay. Therefore, it is not

only a question of delay, but also whether such delay was satisfactorily

explained which was not done so by the petitioner herein. This instant

application is accordingly barred by the principle of limitation and is liable

to be dismissed on this ground alone.

28. The last contention of the learned senior counsel is that this

instant revision petition is not maintainable, inasmuch as, the impugned

order is one passed by the learned Assistant District Judge and Section 21 of

the Bengal, Agra, Assam Civil Courts Act, 1887 provides that an appeal or

order of an Assistant District Judge shall lie with the District Judge. In this

case, the petitioner has tactically filed this revision application knowing fully

well that an appeal against the said impugned order ought to be preferred in

the Court of the District Judge, the fact being that, if such an appeal is filed,

the same will be time barred.

29. Mr. C.C.T. Sangma, learned counsel vice Mr. T.T. Diengdoh,

learned senior counsel for the respondent Nos. 3 and 4 respectively, while

reiterating and endorsing the submission made by the learned senior counsel

for the respondent No. 1, has further submitted that the impugned order is

not a final order, but a continuation of the temporary/ad interim injunction

order dated 08.10.2020 in Misc. Case No. 9 (H) of 2020, wherein the parties

to the suit are directed to maintain status quo. As such, such order passed

under the provision of Order 39 Rule 1 & 2 CPC being temporary and

interlocutory in nature, a revision petition will not lie against the same. The

case of Henalsing Marak v. Thakil A. Sangma, 2020 SCC OnLine Megh

185, para 26 and 27 was cited by the learned counsel in this regard.

30. The learned counsel has further submitted that even assuming

that the application of the respondent No. 1 was filed before the Trial Court

under Section 94(e) of the Code of Civil Procedure, the court has applied its

judicious mind and allowed the same. Therefore, if there has been a wrong

quotation of the relevant provision of law, the same could not be a ground to

reject the relief granted. The said application could always be construed to be

one made under Section 94(c) CPC.

31. Mr. Philemon Nongbri, learned counsel for the respondent No. 2

has submitted that as far as the issue of maintainability is concerned there is

no objection by this respondent since in the main petition, the stand of the

State petitioner would be supported by the respondent No. 2.

32. Mr. S. Sen, learned senior GA, on behalf of the petitioners herein,

while countering the submission and contention of the relevant respondents,

has submitted that records would show that when the application filed by the

respondent No. 1 was taken up for hearing by the learned Trial Court, none

of the other parties arrayed in the application had filed any show cause or

even participated in the hearing. This is evident from a perusal of the

impugned order dated 08.08.2022. Therefore, the conclusion would be that

such parties are not interested in the proceedings relating to the case of the

respondent No. 1's license. In any case, in these proceedings, some of the

parties who were defendants in the Title Suit have also intervened and were

duly arrayed as party respondents and as such, the issue of non-impleadment

of proper and necessary party pales into insignificance.

33. The learned senior GA has also submitted that the provision of

Order 41 Rule 20 CPC applies only to appeals and not to proceedings under

Article 226 or 227 of the Constitution of India. However, what is pertinent to

be examined here is whether the requirement of the said Rule, that is, Rule

20 of Order 41 is complied with in the relevant proceedings, inasmuch as,

the test for impleading parties at the appellate stage is only to examine as to

whether the non-impleaded parties have any interest in the result of the

appeal.

34. Referring to the case of Notified Area Committee Buria (supra)

relied upon by the respondent No. 1, the learned senior GA has submitted

that this case is distinguishable, inasmuch as, it involves the trial of a

declaratory suit with six plaintiffs thereto, which suit was decreed in their

favour by the Trial Court. On the defendant filing a first appeal, the same

was dismissed by the first appellate court. However, in its judgment the

appellate court, inadvertently omitted to mention one of the names of the

plaintiffs, as such, while preferring the second appeal, the defendants therein

had arrayed only those parties whose names featured in the judgment of the

first appellate court. When an objection was raised in course of hearing of

the second appeal as far as non-impleadment of one of the plaintiffs is

concerned, the Hon'ble High Court held that on account of a bonafide and

honest mistake on the part of the party, the appellate court exercising power

under Order 41 Rule 20 CPC can allow the mistake to be rectified and the

parties to be added. This is not the situation herein as in the present case, the

petitioners have only impleaded only the respondent No. 1 since none of the

other parties have any interest in the outcome of the matter.

35. In the case of Hindustan Petroleum Corporation Ltd.(supra), the

Hon'ble Rajasthan High Court has held that on account of non-impleadment

of the parties in the original proceedings, the appeal was bad for non-joinder

of necessary parties. The learned senior GA has submitted that the Hon'ble

High Court had not discussed the provisions of Order 41 Rule 20 CPC and as

to whether there was non-impleadment of necessary parties who are

interested in the result of the appeal. As such, since it is a case where

dismissal of an appeal is made on the ground of non-joinder of parties, but

that the merits of the whole appeal was considered, therefore this judgment

cannot be treated as an authoritative pronouncement on the issue of Order 41

Rule 20 CPC. In any case, such judgment will only have persuasive value

before this Court, further submits the learned senior GA.

36. The learned senior GA has also submitted that this Court is

empowered to add parties to the proceedings, if it is satisfied that the non-

impleaded party is interested in the result of the appeal and shall be

prejudiced, if a decision is made behind its back. However, in these

proceedings, the only parties that may have an interest in the present

proceedings is the MATTWA and KHBWA, both of which are parties herein

on their respective prayer for impleadment which was accordingly allowed

by this Court.

37. The learned senior GA has further stressed on the fact that none

of the other parties have participated in the hearing before the learned Trial

Court and even those who are present in the proceedings before this Court

have not advanced any argument or shown any materials to establish that

they have any interest in the result of the present revision application.

38. In support of his contention on this issue, the learned senior GA

has referred to the following authorities:-

i. State Bank of India v. Ramkrishna Pandurang Barve, 1990

(Suppl) SCC 801, paras 3, 4, 5, 6 and 7;

ii. Hindustan Vidyut Products Limited v. Delhi Power

Company Limited, (2014) 13 SCC 662, paras 1, 2, 3, 4, 5,

6 & 7;

iii. Paul Bargaon v. Nihilal Daimari & Ors. reported in (1988)

2 GLR 421, para 6 & 7.

39. On the issue of delay and latches, the learned senior GA would

submit that the impugned order was passed on 08.08.2022 and the revision

application was filed on 08.12.2022 even while applying the time

prescription of 90 days under Article 131 of the Limitation Act, 1963, there

appears to be a delay of only 30 days. The revision application was filed

under Article 227 of the Constitution of India which is a constitutional power

without any fetters or restrictions as far as the period of limitation is

concerned, the law of limitation not being applicable to proceedings under

Article 227. However, the doctrine of delay and latches can be considered by

the court to ensure that stale or dead claims do not clog the judicial system.

40. In this connection, the case of Bithika Mazumdar and another v.

Sagar Pal and others, (2017) 2 SCC, 748, paras 3 & 4 have been referred to

by the learned senior GA to say that in deserving cases depending on the

particular and peculiar facts and circumstances of the case, delay can be

condoned which was done so in the case referred to, where a delay of about

two years in filing the revision application under Article 227 was condoned.

41. On the last objection made by the respondent indicating that this

instant revision application could not have been filed since there is a specific

provision of Section 21 of the Bengal, Agra and Assam Civil Courts Act,

1887, wherein it is provided that any order passed by the Assistant District

Judge is appealable before the Court of the District Judge, the impugned

order dated 08.08.2022 being one such appealable order, the learned senior

GA for the petitioners has submitted that Section 21 of the Civil Courts Act

provides for appeal before the appellate Court (District Judge) upon which

jurisdiction is determined based on the value of the suit. The petitioners have

not preferred an appeal, but a revision application under Article 227 and as

such, Section 21 (supra) is not applicable to the present case.

42. The learned senior GA has further submitted that in order to

determine whether the impugned order is appealable or not, it is necessary to

ascertain the source of power exercised by the court which has passed such

order. The impugned order was passed by the learned Assistant District

Judge on an application made under Section 94(e) read with Section 151

CPC which application was made with a prayer to stay the operation of a

letter dated 22.01.2021 issued by the Commissioner of Taxes, Shillong to the

respondent No. 1 which was a direction to cease operation of arrow shooting

since they did not have a valid license. Nowhere in the said application

preferred by the respondent No. 1 before the Trial Court was any prayer

made for grant of an injunction under Order 39 Rule 1 and 2 and no

observation or finding was ever made in the impugned order by the learned

Trial Court as far as the ingredients of an injunction namely, presence of a

prima facie case, balance of convenience and irreparable loss likely to be

suffered by the respondent No. 1 is concerned.

43. The learned senior GA for the petitioners has then submitted that

the learned Trial Court has passed the order presumably under the provision

of Section 94 CPC, which empowers the court to resort to appropriate action

including granting of temporary injunction. However, such course of action

is to be taken keeping in mind the words "if so prescribed", which

expression can only mean that any order passed will have to be prescribed by

the rules in the code itself. Again, Order 39 being part of such rule in the

code. Therefore, an order passed under Section 94 has to be prescribed by

Rule 1 and 2 of Order 39 CPC.

44. In this regard, the case of Vareed Jacob v. Sosamma Geevarghese

& Ors. reported in (2004) 6 SCC 378, paras 6, 7, 8, 9, 10 & 11 was referred

to by the learned senior GA to prove the point that power to grant injunction

under Section 94(c) are regulated by the provision of Order 39 Rule 1 & 2

CPC. The respondent No. 1 has not invoked Section 94(c), but has instead

invoked Section 94(e) CPC and have therefore failed to establish as to how

the impugned order dated 08.08.2022 is an appealable order, the learned

Trial Court, it appears has invoked the inherent power under Section 151

CPC to pass the impugned order and as such, the same is not appealable

under the provision of the CPC. The case of Keshardeo Chamria v. Radha

Kissen Chamria & Ors. reported in (1952) 2 SCC 329, para 18 was cited to

support this contention.

45. In view of the above, the learned senior GA has submitted that

this instant revision petition is maintainable and the same may be held so by

this Court for proceeding further with the hearing of the revision on merits.

46. This Court, upon hearing the parties and the argument advanced

in support of their respective stand, has firstly considered the aspect of

whether the impugned order is an appealable order, wherein no revision will

lie against such order or that a revision can be preferred against the same.

47. As has been submitted, the impugned order was passed on an

application filed under Section 94(e) read with Section 151 CPC. These

provisions read as follows:

"94. Supplemental Proceedings.-In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,-

(e) make such other interlocutory orders as may appear to the Court to be just and convenient."

"151. Saving of inherent powers of Court.-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

48. Supplementary proceedings are action taken in a separate

proceeding when there is already an original action or proceeding or suit in

place. Such proceedings are instituted in order to give relief to the party from

any obstruction or an act done to frustrate the cause of such party in the main

suit before such suit is finally disposed of. Supplementary proceedings are

intended only to protect the interests of the parties, not to advance the suit

itself.

49. The impugned order was apparently passed under the provision

of Section 94(e) read with Section 151 of the Code of Civil Procedure. As

pointed out, proceedings under Section 94 generally are supplemental

proceedings. The learned senior GA for the petitioners has laid stress on the

fact that a supplementary proceeding can be resorted to by the court, if the

same is so prescribed by the relevant rules, which term appears or is seen in

sub-Section 16 of Section 2 CPC. Again, the expression rules having been

defined in Section 2(18) to mean rules and forms contained in the First

Schedule or made under Section 122 or Section 125.

50. Order 39 CPC which provides for temporary injunction and

interlocutory orders is found within the First Schedule of the CPC and as

such, according to the learned senior GA for the petitioners when a provision

for an order of injunction under Order 39 is available, there is no reason for

the learned Trial Court to resort to Section 94 while passing the impugned

order.

51. As for Section 151, the Hon'ble Supreme Court in a catena of

judgments has sought to explain the ambit and scope of this provision. For

the limited purpose herein, it would not be out of place to extract a portion of

what has been observed by the Hon'ble Supreme Court at para 12(b) and (c)

in the case of K.K. Velusamy v. N. Palanisamy reported in (2011) 11 SCC

275, which is reproduced herein as under:

"12 (b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co- extensive with the need to exercise such power on the facts and circumstances.

(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code."

52. In the interplay of Section 94 Order 39 and Section 151 CPC, the

case of Vareed Jacob(supra) relied upon by the petitioners is relevant,

wherein para 8, 9, 10 and 11 of the said judgment is reproduced herein below

to put emphasis on this aspect.

"8. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, it has been held that the effect of the expression "if so prescribed" in Section 94 CPC is to prescribe the circumstances in which courts can exercise or grant a particular relief and ordinarily the court is not to use its inherent powers to make the necessary orders in the interest of justice, but to see whether the circumstance of the case come within the

prescribed rule. Therefore, in a case where the plaintiff seeks temporary injunction courts have to ascertain whether the facts of the case fall under Order 39. That it is in the incidence of exercise of power of the court to issue temporary injunction that Section 94 has a role to play and that Section 94, however, does not take away the right of the court to exercise its inherent power. In the same judgment, Section 151 CPC is also analysed. The Apex Court in the same judgment has held that inherent power has not been conferred upon the court by Section 151 CPC. It is a power inherent in the court by virtue of its duty to do justice between the parties before it. That Section 151 merely recognises the existence of the inherent power of the court, therefore, even if in a given case circumstances do not fall within Order 39 CPC, the courts have inherent jurisdiction to issue temporary injunction if the court is of the opinion that interest of justice requires issue of such interim injunction.

9. In the case of Ram Chand & Sons Sugar Mills (P) Ltd v. Kanhayalal Bhargava, AIR 1966 SC 1899, it has been held by this Court that the inherent power of the court under Section 151 CPC is in addition to an complimentary to the powers expressly conferred under CPC, but that power will not be exercised in conflict with any of the powers expressly or by implication conferred by other provisions of CPC. If there is express provision covering a particular topic, then Section 151 CPC cannot be applied. Therefore, Section 151 CPC recognises inherent power of the court by virtue of its duty to do justice and which inherent power is in addition to and complimentary to powers conferred under CPC expressly or by implication.

10. In the case of Jagjit Singh Khanna v. Dr. Rakhal Das Mullick, AIR 1988 Cal 95, it has been held that a temporary injunction may be granted under Section 94(c) only if a case satisfies Order 39 Rule 1 and Rule 2. It is not correct to say that the court has two powers, one to grant temporary injunction under Section 94(c) and the other under Order 39 Rules 1 and 2.That Section 94(c)

CPC shows that the court may grant a temporary injunction thereunder, only if it is so prescribed by Rule 1 and Rule 2 of Order 39. The court can also grant temporary injunction in exercise of its inherent powers under Section 151, but in that case, it does not grant temporary injunction under any of the powers conferred by CPC, but under powers inherent in the constitution of the court, which is saved by Section 151 CPC.

11. The above discussion shows that the source of power of the court to grant interim relief is under Section 94. However, exercise of that power can only be done if the circumstances of the case fall under the rules. Therefore, when a matter comes before the court, the court has to examine the facts of each case and ascertain whether the ingredients of Section 94 read with the rules in an order are satisfied and accordingly grant an appropriate relief. It is only in cases where circumstances do not fall under any of the rules prescribed that the court can invoke its inherent power under Section 151 CPC. Accordingly, the courts have to grant relief of attachment before judgment, if the circumstances fall under Order 38 CPC. Similarly, courts will grant temporary injunction if the case satisfies Order 39. So depending on the circumstances falling in the prescribed rules, the power of the court to grant specified reliefs would vary. Therefore, each set of rules prescribed is distinct and different from the other and therefore, one cannot equate rules of temporary injunction with rules of attachment before judgment although all are broadly termed as interlocutory orders."

53. Again, the contention of the learned senior GA that the impugned

order passed under Section 94(e), the same being regulated by the provisions

of Order 39 Rule 1 and 2 CPC, the only assumption that can be arrived at is

that it is an order passed under Section 151 CPC and such, order are not

appealable in nature as could be seen in the case of Keshardeo Chamria

(supra) at para 18 which reads as follows:

"18. It was not contended and could not be seriously urged, that an order under Section 151 simpliciter is appealable. Under the Code of Civil Procedure certain specific orders mentioned in Section 104 and Order 43 Rule 1, only are appealable and no appeal lies from any other orders (vide Section 105 CPC). An order made under Section 151 is not included in the category of appealable orders."

54. On consideration of the above, this Court is convinced that the

impugned order is not an appealable order, being in the nature of an

interlocutory order, for which revision of the same is not maintainable under

Section 115 CPC, accordingly, an application under Article 227 of the

Constitution of India is the only remedy available to the petitioner to take

recourse to which is done so in this instant petition.

55. This Court having held that the instant petition is maintainable,

the next question is with regard to the issue of non-impleadment of original

parties who were before the Trial Court and as such, under the provision of

Order 41 Rule 20 CPC, this petition is not maintainable.

56. It is the contention of the respondents that this petition should fail

on the ground that the original parties of T.S. No. 11(H) of 2020 were not

arrayed as parties herein. The respondent No. 1 has specifically pointed out

that although in course of proceedings, the defendant No. 5 (MTTWA) and

defendant No. 6 (KHBWA) have got themselves impleaded as party

respondents herein, the defendant Nos. 3 and 4 respectively, that is, the

General Secretary, MBMWU and the President, MBMWU have not been

impleaded in this instant petition.

57. The contention of the petitioners that the test of impleading

parties at the appellate stage is whether such non-impleaded party or parties

has any interest in the result of the appeal is found acceptable by this Court.

Under the facts and circumstances of the case between the parties, the

dispute as could be made out in the suit is with regard to the suspension of

the KHASI/respondent No. 1 ordered against the President and Secretary,

MBMWU respectively and the consequential action of the petitioner No. 2

herein who had directed the respondent No. 1 to revoke such suspension. It

need not be reminded that the matter is pending trial before the court.

58. No doubt, in course of proceedings of the said trial, the petitioner

No. 2 had issued the impugned letter under Memo No. CTAB(TT)

4/93/Pt./300 dated 22.01.2021, whereby the respondent No. 1 was directed to

cease the operation of arrow shooting. Again, it was against this order that an

application under Section 94(e) read with Section 151 CPC was preferred by

the respondent No. 1 as petitioner before the Court of the learned Assistant

District Judge. The matter was heard and vide the impugned order dated

08.08.2022, the petition was allowed. Hence this petition.

59. In such a scenario, it would appear that the matter in dispute

involves the respondent No. 1 and the petitioners herein, the respondent No.

1 being aggrieved by the direction of the petitioners to cease the operation of

arrow shooting, apparently on the ground that the license issued to it has now

been renewed.

60. At this juncture, it would be proper to look at the provision of

Order 41 Rule 20(1) CPC which reads as follows:

"ORDER 41

20. Power to adjourn hearing and direct persons appearing interested to be made respondents.-[(1)] Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourned the hearing to a future day to be fixed by the Court and direct that such person be made a respondent."

61. From the above, it is understood that it is only such party or

parties who are interested in the result in the appeal and who have not been

made party to the appeal may be directed by the court to be so joined. In the

case in hand, the renewal or non-renewal of the license of the respondent No.

1 would not be of interest to the other defendants in the Title Suit, namely;

i. The President, Meghalaya Book Makers Welfare Union

(MBMWU)

ii. The General Secretary, Meghalaya Book Makers Welfare

Union (MBMWU)

iii. The President, Meghalaya Archery (Thoh Team) Welfare

Association (MATTWA)

iv. The President, Khasi Hills Bookies Welfare Association

(KHBWA)

62. This being the case, this Court need not go further, but is

convinced that any order passed in this instant petition would not cause

prejudice to the abovenamed parties. On this ground too, the respondents

have not been able to make out a case in their favour. The authorities cited

by the parties in this regard, need not be extensively analyzed as to their

relevancy as far as this issue is concerned, except for the case of Paul

Bargaon(supra) cited by the petitioners of which para 6 of the same is

reproduced herein as

"6. Keeping the above principle in view, let me now examine the case on hand. As earlier stated, the case of the plaintiff was that he purchased the suit land from proforma defendant-6. The "proforma" means as a matter of form or for the sake of form. In the context of the case, a party against whom no relief has been claimed. Therefore, the plaintiff respondent was the real contestant. In such a situation, the proforma defendant-6 was sufficiently represented by the plaintiff-respondent and the interest of the proforma defendant-6 was not likely to be prejudiced by the determination of the appeal as was constituted before the lower appellate Court."

63. On the last issue, that is, the objection on the ground of alleged

delay in filing this petition, as has been submitted by the learned counsel for

the petitioners that in a number of judgments on the subject the Hon'ble

Supreme Court has held that there is no limitation prescribed for filing an

application under Article 227 of the Constitution, though it is expected that

such application should be filed without unreasonable delay, delay if any,

should be satisfactorily explained, such submission finds favour with this

Court under the circumstances, taking into account the submission that there

has been a minimal delay of only thirty days while preferring this petition.

64. In the light of the above observations and findings, this Court is

of the considered view that the instant petition under Article 227 is

maintainable. The parties are now directed to argue on the merits of the same