Ram Bihari Dixit vs Ashok Kumar Shukla and Others

Arun Tandon, J.—Petitioner, Ram Bihari Dixit, has appeared in the Court in person. He submits that he has withdrawn his instruction from his counsels and that he shall argue the matter himself.

Heard the Petitioner in person, Sri A.K. Mehrotra, learned Counsel for Respondent Nos. 1, 2, 3 and 5 and learned Standing Counsel for Respondent No. 4.

Petitioner filed original suit No. 1989 of 1987 for prohibitory injunction restraining the Principal, Khalsa High Secondary School, Govind Nagar and others from interfering in the working of the Petitioner as Assistant Teacher in the said institution. Copy of the plaint filed by the Plaintiff/Petitioner has been brought on record as Annexure-CA-1 to the counter-affidavit. This Court finds that in the plaint allegation, it has been stated that the Petitioner was a teacher in the said institution when it was a recognized junior high school. Subsequently, the institution was upgraded as a Higher Secondary School. The Petitioner/ because of such up-gradation, claims that the became the teacher of the upgraded high school. It was stated that Petitioner was not paid his full salary and only a meager amount was paid. On 16th April, 1968, the Manager and the President of the institution prohibited the Plaintiff/Petitioner from discharging his duties in the school. Petitioner, therefore, made an application before the District Inspector of Schools, Kanpur. He also filed an appeal before the District Inspector of Schools in August, 1969, Which was not decided (reference paragraph-6 of the plaint). Petitioner in paragraph-8 of the writ petition states that he was assured by the Principal of Khalsa Higher Secondary School and General Secretary of Shri Guru Singh Sabha that his case will be decided in due course, but no action has been taken, he is not being permitted to enter the institution. In paragraph-10 it has been stated that Plaintiff-Petitioner has Suffered mentally and physically due to unemployment. In paragraph-11-A, it has been stated that the Plaintiff is still in service of the said institution, as his services have not been terminated or removed in accordance with law. Verbal Order of termination is no order. In paragraph- 11-B it has been stated that Khalsa Higher Secondary is an minority institution and the Defendants are enjoying an illegal backing of the District Inspector of Schools, Kanpur Nagar and the Deputy Director of Education, IV Region, Allahabad. Cause for filing of the suit has been disclosed as 20th October, 1984 and 15th November, 1986. The relief prayed for in the said suit are as follows:

A. A permanent injunction be issued in favour of the Plaintiff against the Defendants, its agents and employees restraining them from interfering in any way in Plaintiff''s discharge of his duties as an assistant confirmed, teacher on Trained Graduate Grade including salary and all services benefits upto date in Khalsa Higher Secondary School Govind Nagar, Kanpur City.

B. That the cost of the suit be awarded to the Plaintiff against the Defendants.

C. That such other and further relief be granted to the Plaintiff as is deemed just reasonable under the circumstances of the case.

Written statement was filed on behalf of the principal of the institution, namely, Ashok Kumar Shukla, wherein it was stated that the suit was bad for non-joinder of necessary parties and that nothing has happened on 11th December, 1986, which could give a cause to maintain the suit. In paragraph-8 of the written statement, it was stated that as per the records of the institution, there are signatures of the Plaintiff/Petitioner for the period between 8th July, 1967 to 16th April, 1968 only.

It may be recorded that the President of the society, Manager of the Khalsa Higher Secondary School as well as Sri Guru Singh Sabha along with Principal and District Inspector of Schools were impleaded as Defendant Nos. 1 to 5 in the said suit.

The suit was dismissed in default on 12th October, 1988. An application for restoration was made by the Plaintiff-Petitioner and at that stage one Vipin Kant Tiwari put in appearance in his capacity as Principal of the institution. The suit was restored on 17th January, 1989 and thereafter on a compromise application made by the Plaintiff and the alleged Principal of the institution, namely, Vipin Kant Tiwari, the suit is stated to have been decided vide judgment and order dated 25th February, 1989, in terms of the compromise.

Ashok Kumar Shukla claiming himself to be the lawful Principal of the institution made an application under Order IX, Rule-13 of the CPC being Misc. Case No. 66/74 of 1990 alleging therein that the compromise application filed resulting in ex parte decree dated 25th February, 1989 was an outcome of fraud, inasmuch as alleged Sri Vipin Kant Tiwari was neither Principal of the institution nor he was ever authorised to enter into the alleged compromise on behalf of other Defendants to the suit.

8.II Ird Additional Civil Judge (Junior Division) Kanpur Nagar vide order dated 18th November, 1998 rejected the application so made being Misc. Case No. 66/74 of 1990. Against the said order, Misc. Appeal No. 14 of 1999 was filed by the Defendants, which was allowed by the VII Additional District Judge, Kanpur Nagar vide judgment and order dated 24th September, 1999. The appellate Court remanded the matter to the Trial Court, for evidence being recorded for deciding the issue as to who was the actual principal of the institution and decision of application afresh.

The Plaintiff/Petitioner, not being satisfied with the order so passed by the Appellate Court, filed Civil Misc. Writ Petition No. 48784 of 1999 and an interim order was granted by this Court on 9th December, 1999, whereby the operation of the order of remand of the Appellate Court referred to above was stayed. This interim order continued upto 3rd December, 2003, when the said interim stay order was vacated. Ultimately the writ petition was dismissed on 5th August, 2004.

An application was made before the Trial Court along with the judgment of the Writ Court referred to above for carrying out the directions issued by the Appellate Court passed in Civil Misc. Appeal No. 14 of 1999 dated 25th September, 1999 referred to above. On presentation of the said application, it was deciphered that Misc. Application for recall of the ex parte decree itself was dismissed for want of prosecution on 27th April, 2002 (i.e. during the period, when the operation of the order of the Appellate Court of remand was stayed by the Writ Court). ''

Accordingly, a fresh application was made for recall of the order dated 27th April, 2002 dismissing the application filed for setting aside the ex parte decree. This application was numbered as Misc. Case No. 6/74 of 2004."A further prayer was made that the matter may be heard at an early date.

Request for early hearing was rejected by the Trial Court on 7th March, 2007. Revision No. 74 of 2007 was filed, which was also dismissed on 30th April, 2007. Thereafter a writ petition under Article 227 of the Constitution of India was filed being Civil Misc. Application No. 539 of 2007 by the Principal of the institution. This writ petition was disposed of by the Writ Court vide order dated 6th July, 2007. Direction issued by the Writ Court are relevant for our all purposes and Is being reproduced herein below:

Learned Counsel for the Petitioners submits that in view of the order of the Trial Court rejecting the Petitioner''s application to decide the application under Order IX, Rule 13 CPC and the order of the Re-visional Court affirming that order, the Trial Court would not entertain any application restoration that may be moved by the Petitioners. The apprehension of the Petitioner''s Counsel is misconceived inasmuch as the basis of the order of the Trial Court as well as of the Revisional Court is that the application under Order IX, Rule 13 CPC is not surviving inasmuch as the same has been dismissed in default. Sri R.U. Ansari Counsel for the Respondent Plaintiff stated that the Plaintiff will not raise any objection regarding maintainability of the application, if filed by the Petitioners for restoring the application under Order DC, Rule 13 CPC In view of the alternative remedy of applying to the Trial Court for restoring the application under Order IX, Rule 13 CPC available to the Petitioner it is not a fit case for interference under Article 227 of the Constitution of India.

With the aforesaid observations, this writ petition is disposed of.

From bare reading of the order of the Writ Court is apparently clear that it was specifically provided that the Plaintiff shall not raise any objection to the application made by the Defendants for restoration of the application under Order IX, Rule 13. Accordingly, an application being Civil Misc. Case No. 223/74 of 2007 was filed along with an application u/s 5 of the Limitation Act for recall of the order dated 27th April, 2002. This application was allowed by the Trial Court vide order dated 2nd August, 2008 and the order dated 27th April, 2002 was recalled and the Misc. Application filed under Order IX, Rule 13 of the CPC was restored to its original number.

Plaintiff/Petitioner, not being satisfied with the order so passed by the Trial Court, filed revision being Civil Revision No. 14 of 2009. The revision has also been dismissed under order dated 25th May, 2009. Plaintiff/Petitioner, not being satisfied, has approached this Court by means of the present writ petition.

On behalf of the Petitioner various issues of facts have been raised for questioning the maintainability of the application under Order IX, Rule 13 of the CPC as well as its consideration by the Trial Court. Various other allegations have been made for suggesting that the order from the Writ Court dated 6th July, 2007 has been obtained on incorrect statement of facts and on filing of the fabricated documents, lastly it is contended that no case is made out for consideration of the application made under Order IX, Rule 13 of the CPC and therefore, this Court may interfere against the order passed by the Special Judge, E.C. Act/Additional District Judge, Kanpur Nagar Passed in Civil Revision No. 14 of 2009.

Having considered the submissions made by the Petitioner, learned Counsel for the institution and learned Standing Counsel for the State-Respondents and having examined the records of the present writ petition, this Court finds that the controversy in respect of right of the Defendants to make an application for restoration of the application made under Order DC, Rule 13 of the CPC stood closed with the passing of the order of the Writ Court dated 6th July, 2007, wherein the Writ Court had specifically noticed the statement made by the learned Counsel for the Petitioner/ Plaintiff, that the Plaintiff will not raise any objection regarding the maintainability of the application, if filed by the Respondents/ Defendants for restoring the application under Order IX, Rule 13 of the Code of Civil Procedure, disposed of the writ petition.

In view of the aforesaid, it is not open for the Plaintiff/Petitioner to raise any objection to the maintainability of the application for restoration of the application made under Order IX, Rule 13 of the Code of Civil Procedure. Meaning thereby that the application can be questioned only on merits only.

From the facts on record, it is apparently clear that the application made under Rule IX, Rule 13 of the CPC by the Defendants was dismissed for want of prosecution on 27th April, 2002 i.e., at a point of time, when there was an interim order by this Court staying the order of the Appellate Court remanding the matter to the Trial Court for consideration of the application made under Order IX, Rule 13 of the CPC with a direction that evidence may be taken as to who was the real principal of the institution at the relevant time.

This Court has no hesitation to record that in these circumstances, both the Courts below are legally justified in granting the application, which have been made being Civil Misc. Case No. 223/74 of 2007 after condoning the delay in making of the same. The Defendants to the suit cannot be said to be sleeping over their rights or to be negligent in pursuing their remedy in any manner. Details qua the date on which the writ petition was finally dismissed and the date on which the application was made have already been stated herein above.

Even otherwise, this Court may record that a suit can be decided on the basis of a compromise, when all the Defendants together or by a person duly authorised on behalf of the parties, agrees to such a compromise. The issue which is to be examined in the present controversy is as to whether the compromise has been obtained by setting up a non-party to the suit proceedings for obtaining the ex parte decree based on compromise or not.

It is settled that decree on merits is always preferable to a decree obtained ex parte. It is all settled that all Courts of law are established for furtherance of interest of substantial justice and not to obstruct the same on technicalities. Reference Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, wherein it has been held that if substantial justice and technicalities are pitted against each other, the cause of substantial justice should not be defeated on technicalities. No procedure in a Court of law should be allowed to defeat the cause of substantial justice on some technicalities. Reference Ghanshyam Das and Ors. v. Dominion of India and Ors. 1984 (10) ALR 318 (SC).

For the reasons recorded above, this Court finds no good ground to interfere with the orders passed by the Trial Court as well as by that of the revisional Court.

The present writ petition is accordingly dismissed.

The application made by the Defendants under Order IX, Rule 13 of the CPC be considered and decided by the Trial Court in light of the directions issued by the Appellate Court dated 24th September, 1999 in appeal No. 14 of 1999, without granting any unnecessary adjournment to either of the parties, preferably with three months from the date a certified copy of this order is filed before it.