LAWS(CAL)-1988-3-43

HPD CHOUDHURY Vs. USHA RANI BOSE

Decided On March 28, 1988
HPD CHOUDHURY Appellant
V/S
USHA RANI BOSE Respondents

JUDGEMENT

(1.) THE Code of Civil procedure was applied to the Andaman 6 Nicobar Islands by section 14 of the Andaman and Nicobar Regulation, being Regulation No. III of 1876, with the modification that section 102 of the Code was deleted and section 100 and section 115 were substituted by new sections. Under section 100, so substituted, second appeal was to lie to the High Court from any appellate decree passed by any court subordinate thereto, provided such appellate decree reversed or modified the decision of the Trial Court on the point material to the merit of the case and provided further that it appeared to the court, on a perusal] of the ground of appeal and the copies of the judgment of the Courts below, that a further consideration of the case was necessary for the ends of justice. A second appeal under the aforesaid section thus amounted almost to a third round of trial on facts as well as law, where the first appellate decree was of variation or reversal though a second appeal could not lie against an appellate decree of affirmance.

(2.) THIS position continued in these Islands upto 1950 when the Islands became incorporated in the Union of India as a Part 'd' Territory under the Provisions of the Constitution of India. As such Part ' D' Territory, the Uslandss, under Article 243 of the Constitution, as it stood then, were administered by the president acting through a Chief Commissioner and under Article 243 (2), the: President was empowered to make Regulation for the peace ' and good government of such Territory and by such Regulation could amend or repel any existing Law. In the exercise of such powers, the President promulgated Regulation II of 1950, whereby section 14 of the Regulation III of 1876, as aforesaid, has been substituted by a new section 14, which simply provides that "in the application of the Code of Civil Procedure 1908, to the Andaman and Nicobar - Islands, the functions of the High Court under that code shall be discharged by the High Court in Calcutta. "

(3.) AS already noted, the old section 14 of the Regulation III of 1876 actually made the Code of Civil Procedure applicable to these islands with the modification as noted at the outset. That section in terms provided that "the Code of Civil Procedure (Act V of 1908) shall be in force in the Andaman 8 Nicobar Islands" subject to the modifications made therein whereby, as pointed out earlier, section 100 of the Code dealing with second appeals, was substituted by a new Section. The said section 14 of the Regulation of 1876, therefore, was the authority for the application of the Code of civil Procedure in the Islands and that Section virtually legislated by reference the provisions of the Code of Civil Procedure for these Islands. The new section 141, in repealing and replacing the old section 14, has, as already noted, merely provided that the High Court at Calcutta shall be the High Court for the Islands in discharging the functions under the Code, without anywhere expressly providing, as was provided ,in the old section 14, that the Code of Civil Procedure shall apply to and shall be in force in the Islands. The new section 14 proceeded on the basis and took it for granted that the Code of Civil Procedure continued to be in force in the Islands, even though the old section 14 which made the Code of Civil Procedure applicable to the Islands stood repealed and replaced. What then was the bais for the continued application of the Code in the Islands, after the repeal of the old section 14 which made the Code application here, when neither the new section 14 substituted by the Regulation II of 1950 nor any other provision therein provided for the enforcement and application of the Code ?