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1989 DIGILAW 331 (ORI)

STATE OF ORISSA v. DINANAT MOHANTO

1989-09-22

G.B.PATNAIK, V.GOPALASWAMY

body1989
JUDGMENT : G.B. Patnaik, J. - Defendants 1 and 2 are the Appellants against the judgment and decree of the Subordinate Judge, Keonjhar. 2. Plaintiff-Respondent No. 1, a teacher in Banko High School, had filed the suit for a declaration that he was entitled to receive the trained graduate scale with effect from 27-2-1976 and also for arrear salary amounting to Rs. 8,1l2/- on the assertion that he was appointed by the Managing Committee by resolution dated 17th of February, 1976 (Ext. 17) and joined the service on 27-2-1976. The school in question was a private educational institution and it was the Managing Committee which was responsible for the management and control over the institution. The Plaintiff's appointment as a teacher was approved by the Circle Inspector and was extended for a further period of six months from 28-8-1977. Though the Plaintiff continued to serve as a teacher, yet his salary was not paid after October, 1977 and, therefore, the Plaintiff filed the suit in question. 3. Defendants 1 and 2 filed a joint written statement and they denied the assertion that the Plaintiff was appointed as a teacher by the Managing Committee of the school on a valid resolution. It was alleged in the written statement that the Plaintiff managed to join the school as an Assistant Teacher illegally on the strength of a forged and fake resolution dated 17-2-1976 alleged to have been passed by the Managing Committee of Banko High School with the assistance oft Defendants 3 and 4, and the approval to such appointment and subsequent extension were illegally obtained from the appropriate authority by misrepresentation and fraud and by suppressing the real state of facts which were latex on revealed by an enquiry being conducted and therfore, such an appointment could not be held to be a valid appointment, in the eye of law. 4. Defendants 3, and 4 remained ex parte, 5. On these pleadings, the learned Trial Judge framed 8 issues of which issues Nos. 5,6 and 7 are the most important ones. On those issues after discussing the evidence on record the learned Trial Judge disbelieved the defence witnesses and came to the conclusion that the resolution (Ext. 17) appointing the Plaintiff was genuine and not forged and it was difficult to believe the evidence of d. ws. 5,6 and 7 are the most important ones. On those issues after discussing the evidence on record the learned Trial Judge disbelieved the defence witnesses and came to the conclusion that the resolution (Ext. 17) appointing the Plaintiff was genuine and not forged and it was difficult to believe the evidence of d. ws. 2, 3 and 5 that there was no resolution of the Managing Committee appointing the Plaintiff as a teacher of Banko High School. Thereafter on consideration of the evidence adduced on behalf of the Plaintiff, the Trial Judge came to hold that the facts and circumstances and conduct of the parties would go to show that the resolution dated 17-2-1976 (Ext. 17) was genuine. Trial Judge further held that the Managing Committee was the proper authority for appointment of a teacher and it was the admitted case that there was no resolution of the Managing Committee to terminate the Plaintiff's services. It was also found that the Plaintiffs appointment had been validated by the Validating Act and as there was no order terminating his service, the Plaintiff was entitled to a declaration that he was the teacher of Banko High School since 27-2-1976. Further the Plaintiff was entitled to Rs. 81l2/- representing his salary for the period October, 1977, till February, 1979. On the question of maintainability of the suit, the Trial Judge found the suit to be maintainable and on the question of notice u/s 80, Code of Civil Procedure, he found that the suit was not bad for want of notice u/s 80, Code of Civil Procedure. On these findings, the suit was decreed. Hence J the present appeal. 6. Mr. Patra, the learned Additional Government Advocate, assailing the judgment and decree of the Court below raises the sole contention that the finding that the resolution dated 17-2-1976 (Ext. 17) is genuine and not forged is contrary to the evidence on record and cannot be sustained and, therefore, the suit must fail. Mr. Mohanty, the learned Counsel appearing for the Plaintiff- Respondent No. 1, on the other hand, submits that the Trial Judge having scanned the evidence on record and having come to the conclusion on a proper reading of the evidence, the same cannot be interfered with by this Court. The sole question for our consideration, therefore, is whether the resolution (Ext. Mohanty, the learned Counsel appearing for the Plaintiff- Respondent No. 1, on the other hand, submits that the Trial Judge having scanned the evidence on record and having come to the conclusion on a proper reading of the evidence, the same cannot be interfered with by this Court. The sole question for our consideration, therefore, is whether the resolution (Ext. 17) is a forged one as alleged by the Defendants in their written statement and in order to arrive at a conclusion it would be necessary to examine the evidence on record. 7. Before scrutinizing the evidence, it would be appropriate to notice that though Defendants 1 and 2 in their written statement made a general, vague allegation that the resolution dated 17-2-1976 (Ext. 17) is a forged and fake one but no particulars of alleged forgery had been pleaded. Order 6, Rule 4 of the Code of CPC clearly stipulates that where allegations of fraud or misrepresentation et cetera are alleged, the Plaintiff must setforth the particulars of the fraud or misrepresentation and it would not be enough to use general words. It has been held by high authorities that general allegations however strong may be the words in which they are stated are insufficient even to amount to an averment of fraud of which any Court ought to take notice. A litigant who prefers charges of fraud or other improper conduct should not be allowed to proceed with his case unless he places on record precise particulars as to the charges even if no objection is taken on behalf of the parties who are interested in disproving the charges. In the case of AIR 1937 146 (Privy Council), it was held by their Lordships: Where a litigant prefers the charges of fraud or other improper conduct against the other party, the tribunal, which is called upon to decide such issues should compel that litigant to place on record precise and specific details of these charges. Cases of such type will be much simplified if this practice is strictly observed and insisted upon by the Court, even if no objection is taken on behalf of the parties who are interested in disproving the accusations. (quoted from the headnote) The Supreme Court in the case of Bishundeo Narain and Anr. v. Seogeni Rai and Ors., AIR 1961 SC 280, also considered the aforesaid question and held: ... (quoted from the headnote) The Supreme Court in the case of Bishundeo Narain and Anr. v. Seogeni Rai and Ors., AIR 1961 SC 280, also considered the aforesaid question and held: ... Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence & coercion, the parties pleading it must setforth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion.... In view of the aforesaid position of law, the general allegations of fraud and forgery made in paragraph-8 of the written statement, in our opinion, do not satisfy the tests laid down in the aforesaid cases and, therefore, the stand taken in the written statement of Defendants 1 and 2 must be held to have not been sustained on this sole point. 8. Even otherwise, if the evidence led on this point is also examined, the conclusion of the trial Judge remains unassailable. According to the learned Additional Government Advocate while assessing the evidence of d. ws. 2, 3 and 5, the following tell-tale circumstances must be considered which would establish the fact that there had been no resolution on 17-2-1976. The learned Additional Government Advocate urges that the facts that there was no prior notice of the meeting dated 17-2-1976; there has been no reference to the resolution dated 17-2-1976 in Exhibit-1, the letter of appointment there has been no reference to Plaintiff's application in Exhibit-17 ; and the resolution in question has not been confirmed in the next resolution, are the circumstances to prove the fact that the resolution dated 17-7-1976 is a forged one and the Court below committed an error in not taking the aforesaid circumstances into consideration. But in our considered opinion, the submission is devoid of any substance. The Defendants in their written statement never took the stand that there had been no prior notice of meeting to be held on 17-2-1976. But in our considered opinion, the submission is devoid of any substance. The Defendants in their written statement never took the stand that there had been no prior notice of meeting to be held on 17-2-1976. Consequently, it was not necessary for the Plaintiff to lead evidence on that score and in the absence of the necessary particulars in the pleading, the question of coming to such a conclusion does not arise. We also do not find any substance in the argument of the learned Additional Government Advocate as to why there should be reference to the resolution in the letter of appointment (Ext. 1) or why there should be a reference to the Plaintiff's application in the resolution (Ext. 17). At any rate, neither Ext. 17 nor Ext. 1 can be said to be not genuine merely because there has been no reference to the Plaintiff's application. We also do not find any substance as to why the resolution was not confirmed in the next meeting. A resolution becomes effective when it is passed and question of confirmation arises only when in the resolution such confirmation is made a condition precedent. But on examining the resolution book we find in some cases resolution passed on a particular date required to be confirmed on the next date and in some Cases no such confirmation was required. It is not the case that only the impugned resolution did not require any confirmation. In that view of the matter non-confirmation of resolution cannot be held to be a circumstance proving the fact that the resolution is a forged one. 9. So far as the evidence of the Defendants is concerned, we find that the relevant witnesses are d. ws. 2, 3 and 5. D. w. 2 was the President of the Managing Committee and d. ws. 3 and 5 were the members of the Managing Committee. No doubt they have stated in their evidence that there was no meeting of the Managing Committee on 17-2-1976. Though d. ws. 2 and 3 denied their signatures in the resolution but d. w. 5 admitted his signature (Ext. 17/G) on the resolution dated 17-2-1976. He, however, took the stand that signed the same after some time and not on the day of the meeting. Though d. ws. 2 and 3 denied their signatures in the resolution but d. w. 5 admitted his signature (Ext. 17/G) on the resolution dated 17-2-1976. He, however, took the stand that signed the same after some time and not on the day of the meeting. D. w. 2 as also d. w. 3 have been held to be unreliable witnesses by the learned Trial Judge and the grounds for holding them unreliable have been discussed in paragraphs 10 and 11 of the judgment. On an analysis of the evidence of the aforesaid two witnesses and after applying our mind to the same, we also confirm the said conclusion. Nothing has been placed to the contrary by the learned Additional Government Advocate to take a different view. We would, of course, discuss later some tell-tale circumstances which would belie the defence stand on the face of it. The resolution book itself candicates, that in the next meeting d. ws. 2, 3 and 5 were also present but none of them have made any grievance on that day to the earlier resolution dated 17-2-1976. That apart, the resolution dated 17-2-1976 contains several other decisions including appointment of two other staff in the school, but neither the Inspector nor any of the members of the Managing Committee challenged the appointments of other staff made pursuant to the resolution dated 17-2-1976. This is a clinching conduct against the Defendants who challenge the resolution to be not genuine. Then again, another important document is Ext. 19/r dated 13-9-1977. By this resolution, the Managing Committee resolved unanimously to extend the services of Plaintiff Dinanat Mahanto and pursuant to this resolution the Inspector approved the same under Ext. 4, dated 8-2-1977. It is really difficult to comprehend that the Inspector could not know the genuineness of the original resolution dated 17-2-1976 and went on approving the Plaintiff's appointment on the basis of subsequent resolution. Then again, under Ext. 19/m dated 2-5-1977, the Managing Committee had resolved to give increment to the Plaintiff and d. w. 5 was a signatory to the said resolution. The Inspector under Annexure-5 dated 3-3-1978 approved extension of Plaintiff's, service till recommendation of the Selection Board is received. Then again, under Ext. 19/m dated 2-5-1977, the Managing Committee had resolved to give increment to the Plaintiff and d. w. 5 was a signatory to the said resolution. The Inspector under Annexure-5 dated 3-3-1978 approved extension of Plaintiff's, service till recommendation of the Selection Board is received. In this view of the matter and in view of the conduct of the Inspector, not only there has been no pleading with regard to particulars of fraud or, forgery committed by the members of the Managing Committee while passing the resolution dated 17-2-1976 but also the materials produced clearly belie the stand of the Defendants with regard to the alleged forgery. It is important to notice that the Managing Committee as well as the Headmaster, the two other Defendants who could really throw light remained ex parte and it is the public authority who only contested the suit. In the premises, as aforesaid, we would affirm the conclusion of the learned Trial Judge, and in agreement with the same, we also hold that Defendants 2, 3 and 5 are wholly unreliable witnesses and, therefore, the Defendants failed to establish the allegation of forgery which was baldly made in the written statement and, on the other hand, the oral and documentary evidence adduced establish the fact that the Managing Committee passed a resolution on 17-2-1976 and Plaintiff was validly appointed pursuant to the said resolution. The contention of the learned Additional Government Advocate in assailing the conclusion of the learned Trial Judge with regard to the genuineness of Ext. 17 must be rejected. 10. No other contention having been raised and the only contention having failed, this appeal fails and is accordingly dismissed. The judgment and decree of the learned Trial Judge are affirmed. There will, however, be no order as to costs of this Court. V. Gopalaswamy, J. 11. I agree. 12. Appeal dismissed. Final Result : Dismissed