Sanjeevi Joseph vs The Director Elementary Education Officer and Others

R. Banumathi, J.—This Civil Revision Petition is directed against the order passed in I.A. No. 128 of 2002 in O.S. No. 118 of 2002 on the

file of Additional District Munsif Court at Vellore, which was dismissed on 11.09.2003 and restored on 23.12.2003, reviving the order of

Injunction granted earlier. The Fourth Defendant is the Revision Petitioner.

There have been several rounds of litigation between the parties regarding D-5-School - Morning Star Higher Secondary School, Thirupakuttai

Village. The Plaintiff - Kanagamani is the Wife of Late Sigamoni George. The said Sigamoni George and D-4-Sanjeevi George are the Sons of I.J.

Sigamoni.

O.S. No. 118 of 2002 - D.M.C. VELLORE:- Case of the Plaintiff is that during the lifetime of I.J. Sigamoni, he was in management of D-5-

School as a Headmaster of the School for nearly 27 years. The said I.J. Sigamoni executed a Letter of Management on 01.01.1970 empowering

his Son Sigamoni to administer and run the School during his lifetime. The Plaintiff''s Husband - Sigamoni died on 29.11.2000. In succession as

Manager of the Fifth Defendant School, the Plaintiff and her Sons and Daughters are entitled to succeed to the Management of the Fifth Defendant

School. The Sons and Daughters of Sigamoni had given consent letter to the Plaintiff to take over the Management of the Fifth Defendant School.

Taking advantage of demise of the Plaintiff''s Husband, the Fourth Defendant is indulged in activities which are against the interest of the School

and the Management. Regarding this, the Plaintiff has preferred a Complaint before Katpadi Police Station, u/s 420 I.P.C on the file of Judicial

Magistrate No. III, Vellore. At the instance of D-4, Defendants 2 and 3 are trying to change over the administration in favour of Fourth Defendant,

which is illegal and unlawful. Hence, the Plaintiff has filed the Suit to declare that she is entitled to manage, maintain and administer D-5 School and

also granting Permanent Injunction, restraining the Defendants 1 to 3 from nominating the Fourth Defendant as Manager and Correspondent of D-

5-School.

I.A. No. 128 of 2002 in O.S. No. 118 of 2002:- Claiming to be entitled to be in management of D-5 School, the Plaintiff has filed this

Application under Order 9, Rule 9 C.P.C for granting Temporary Injunction, restraining Respondents 1 to 3 from in any way appointing or

nominating the Fourth Respondent as Manager / Correspondent to the D-5-School. Exparte order of Interim Injunction was granted.

Respondents / Defendants have filed the Counter Statement, contesting the Application for grant of Temporary Injunction. D-3 - Assistant

Educational Officer, Vellore has filed the Counter Statement, contending that the Court has no jurisdiction in view of Section 53 and 53-A of the

Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. The Defendants have also raised the plea of Res-judicata and constructive Res-

judicata in view of the dismissal of the earlier suit in O.S. No. 232 of 2000 on the file of D.M.C. Vellore. The Defendants have referred to the

earlier litigation O.S. No. 232 of 2000, which was dismissed as abated.

The Fourth Defendant has filed the Written Statement and Counter, denying the right of the Plaintiff to be in management of the school. It is

further alleged that Sigamoni died on 29.11.2000 and the Plaintiff ought to have impleaded herself in O.S. No. 232 of 2000. Without taking

appropriate steps in the earlier suits, the present suit filed is not maintainable.

The Fourth Defendant has also based his claim on the basis of Registered Will dated 01.09.1995 by his Father - Sigamoni bequeathing the

School and the School Building and the Management thereon in favour of the Fourth Defendant. The Administration of the School was also

bequeathed in favour of D-4. D-4 has also been recognised by the Education Department in administration of the School.

In O.S. No. 118 of 2002, Cheque Slips dated 29.04.2003 were issued for paying the deficit Court Fees of Rs. 36.50 and the same has been paid

by the Plaintiff on 05.06.2003. Since no steps were taken within the time, the Suit was dismissed on 11.09.2003. Since the Suit was dismissed,

Injunction Application in I.A. No. 128 of 2002 was also dismissed.

I.A. No. 1816 of 2003 in O.S. No. 118 of 2002:

I.A. No. 1817 of 2003 in O.S. No. 118 of 2002: The Suit was dismissed on 11.09.2003. The Petition was filed on 02.12.2003 under Order 9,

Rule 9 C.P.C to set aside the order of dismissal. There was delay of 53 days in filing Order 9, Rule 9 C.P.C. Petition. Order 9, Rule 9 C.P.C

Petition (I.A. No. 1817 of 2003) was also simultaneously filed to set aside the order of dismissal. In both the Applications, the Government

Pleader appearing for the Department (D-1 to D-3) had taken notice. The Government Pleader sought time for filing the counter. On 05.12.2003,

when the Applications came up for hearing, learned District Munsif passed the order ""Notice of Hearing and Counter. Notice given. Counter not

filed. Respondent called absent. Petition Allowed"". Both the Applications were allowed the Suit was restored.

I.A. No. 2011 of 2003 in O.S. No. 118 of 2002:- This Application was filed on 10.12.2003 to restore I.A. No. 128 of 2002 on the ground

that the Suit has been restored on 05.12.2003. In this Application also, notice was given to the Government Pleader, who has been appearing for

the Department - D-1 to D-3. The Application came up for hearing on 23.12.2003 and the Court passed the order,

...Heard. Since the Suit is already restored, the I.A is also restored. Hence, this Application allowed"".

On the basis of the above order, on behalf of the Plaintiff, Telegram and Notice were sent to the Department and also D-4 informing them

about the restoration of the Suit and also the Interlocutory Application and revival of the order of Interim Injunction.

Aggrieved over the restoration of I.A. No. 128 of 2002 and revival of order of Interim Injunction, the Revision Petitioner has preferred this

Revision Petition. Assailing the impugned order, learned counsel for the Revision Petitioner has challenged the maintainability of the Suit. Learned

counsel has submitted that in view of Section 53 of the Tamil Nadu Recognised Private Schools (Regulation) Act, the Civil Court has no

jurisdiction to try the matter. It is further submitted that when the Suit has been filed for declaration that the Plaintiff is entitled to manage and

maintain and administer the School, the main contesting party is the Fourth Defendant. It is further contended that in view of the factual situation,

notice ought to have been ordered to the Fourth Defendant and the Fourth Defendant ought to have been given sufficient opportunity to file his

Counter. The further contention is that the restoration of the Suit and the Interlocutory Application without notice to the Fourth Defendant and the

revival of the order of Injunction violates principles of natural justice and against the provisions of law, which is to be set aside exercising the

supervisory control of the High Court under Article 227 of the Constitution of India.

The First Respondent was served, but not entered appearance. Learned Government Advocate appearing for the Department has submitted

that after the dismissal of the Suit in O.S. No. 118 of 2002, the Fourth Defendant - Revision Petitioner is in Management of the School. It is further

submitted that after the dismissal of the Suit, the Department has recognised the Revision Petitioner as to be in administration of the School.

Learned Government Advocate has further submitted that the Department would comply with any of the order passed by the Court.

Upon consideration of the contentions of the Revision Petitioner, impugned order and other materials on record, the following points arise for

consideration:

i. Whether the impugned order restoring the Application in I.A. No. 128 of 2002 and reviving the order of Interim Injunction without notice to D-4

is proper?

ii. Whether the impugned order is in flagrant violation of principles of natural justice and whether the impugned order could be sustained?

O.S. No. 730 of 1997 D.M.C. Gudiyatham:- Even at the outset, it is to be pointed out that O.S. No. 118 of 2002 is the second round of

litigation. Apart from the two suits filed by D-4 in O.S. No. 499 of 2000 and O.S. No. 237 of 2000, the Plaintiff''s Husband Sigamoni has earlier

filed O.S. No. 730 of 1997, which was transferred to D.M.C. Vellore and re-numbered as O.S. No. 232 of 2000. Alleging that a Letter of

Management was executed by I.J. Sigamoni dated 01.01.1970, Sigamoni has filed this Suit to declare him as the Educational Agency of D-5

School. He has also sought for permanent Injunction restraining the Department from recognising any Educational Agency for D-5 School.

Sigamoni died on 22.01.2001. No steps had been taken in O.S. No. 232 of 2000. Hence, the Suit in O.S. No. 232 of 2000 was dismissed on

19.11.2003 as abated. Without pursuing the Suit in O.S. No. 232 of 2000, the Plaintiff has filed this separate Suit in O.S. No. 118 of 2002. As

contended by the Defendants, the question of constructive res-judicata arises.

u/s 53 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, the jurisdiction of the Civil Court is barred. Section 53 of the

said Act reads as follows:

...CIVIL COURT NOT TO DECIDE QUESTIONS UNDER THIS ACT:- No Civil Court shall have jurisdiction to decide or deal with any

question which is by or under this Act required to be decided or dealt with by any authority or officer mentioned in this Act"".

Thus, the Civil Court jurisdiction is ousted regarding the Management of the Private School. Since there seems to be statutory bar for entertaining

the Suit under Order 14 Rule 2 C.P.C, it is within the discretion of the Court to try the issue of jurisdiction as the preliminary issue.

Be that as it may, let us consider the point arising for our consideration. As noted earlier, I.A. No. 1816 of 2003 was filed u/s 5 of the

Limitation Act to condone the delay of 53 days in filing the Application under Order 9, Rule 9 C.P.C. In that Application, notice was given to the

Government Advocate, who has been appearing for the Department - D-1 to D-3. In similar Application I.A. No. 1817 of 2003 filed under Order

9, Rule 9 C.P.C (which has been numbered simultaneously), notice was given to the Government Advocate appearing for D-1 to D-3. On

04.12.2003 in both the Applications, it was ordered for counter. On the very next day on 05.12.2003, the applications came up for hearing and

the learned District Munsif passed the following order:-

Notice of Hearing and Counter. Notice given. Counter not filed. Respondent called absent. Petition Allowed"".

On the same day, simultaneously the Application in I.A. No. 1817 of 2003 filed under Order 9, Rule 9 C.P.C was also allowed and the suit was

restored.

By perusal of the proceedings in I.A. No. 1817 of 2003, there seems to be hurry in allowing the Applications. Learned District Munsif has not

cared to see whether Notice was given to all the parties. Even by cursory perusal of the docket sheet in the Applications, it is clear that no Notice

was given to D-4. Without giving notice to the main contesting Defendant, the Suit was restored. The petitions were allowed on the ground ""No

counter filed"". There is no speaking order as to how the learned District Munsif satisfied regarding ""sufficient cause"" explaining the delay. Similarly

in ordering restoration of the Suit, no reasonings have been recorded for restoration of the Suit. Strangely, Order 9, Rule 9 C.P.C petition was also

allowed on the same day. After condoning the delay, the Application filed for restoration of the Suit was also allowed without any further

opportunity.

Not only that, I.A. No. 2011 of 2003 was filed under O.9 R.9 and Section 151 C.P.C to restore I.A. No. 128 of 2002. In this Application

also, no notice was given to the main contesting party - D-4. Like in other applications, notice was given only to the Government Advocate, who

has been appearing for the Defendants - D-1 to D-3. The learned District Munsif has not bestowed care to see whether Notice was given to D-4

or not. When no Notice was given to the main contesting party, viz., D-4, learned District Munsif erred in restoring the Application in I.A. No. 128

of 2002 and thereby reviving the order of Injunction.

Restoration of the Suit and revival of the order of Injunction had serious consequences. Since the Suit in O.S. No. 118 of 2002 was dismissed

for default, the Department - D-1 to D-3 have recognised D-4 as in Management of the School. The Education Department has also issued the

proceedings in Na. Ka. No. 1908/A1/2003 dated 22.12.2003 appointing D-4 as the Manager of the School. Immediately after restoration of the

Application, I.A. No. 128 of 2002, on behalf of the Plaintiff, telegram was sent on 24.12.2003 calling upon D-4 not to act upon or sign the orders

in respect of the school administration. The telegram was followed by a Legal Notice dated 25.12.2003 to the Department and to D-4. In the said

Notice, the Defendants were informed about the restoration of the suit and the interlocutory applications and that the interim injunction granted has

been extended till the next hearing date. In the notice, the Defendants 1 to 3 were requested to refrain from appointing D-4 in the Management of

the School. Restoration of the Application in I.A. No. 128 of 2002 and revival of order of Injunction is clear instance of non-compliance of

principles of natural justice. Without issuing notice to D-4, the Suit has been restored and the Interim Injunction Application in I.A. No. 128 of

2002 has been restored. Since there is violation of principles of natural justice, which is likely to cause injustice to D-4, the High Court exercising

the power of Supervisory Control under Article 227 of the Constitution of India. Hence, the order made in I.A. No. 128 of 2002 in O.S. No. 118

of 2002 is suspended.

There had been number of litigations regarding the Management and Administration of D-5 School. D-4 is said to have filed two Suits in O.S.

No. 499 of 2000 and 237 of 2000. Since the Suits are pending for a long time and the parties are litigating their rights regarding the Management

of the school, the Suits are to be taken up for early hearing. As discussed earlier, the Trial Court may take up the preliminary issue regarding the

maintainability of the Suit and to determine the issue whether there is statutory bar u/s 53 of the Tamil Nadu Recognised Private Schools

(Regulation) Act,1973.

For the forgoing reasons, the Injunction Order passed in I.A. No. 128 of 2002 in O.S. No. 118 of 2002 on the file of Additional District

Munsif Court, Vellore (dismissed on 11.09.2003 and restored on 23.12.2003) is suspended and this Civil Revision Petition is allowed. The

learned District Munsif, Vellore is directed to expedite the Trial in O.S. No. 118 of 2002 and O.S. Nos. 499 of 2000 and 237 of 2000 and if

necessitated to take up the preliminary issue regarding the maintainability of the Suits and dispose of the same expeditiously in accordance with

law. The connected C.M.P. No. 21575 of 2003 is closed. There is no order as to costs.