R. KUPPURAJ v. BHARATH GOLD MINES LTD. — 1992 DIGILAW 14 (KAR)

R. V. VASANTHAKUMAR, J. ( 1 ) THIS civil revision petition is directed against the order dated 5-9-1991 passed in M. A. No. 29 of 1991 by the Court of the Civil Judge, K. G. F. , which has dismissed the appeal and confirmed the order dated 7-6-1991 passed on I. A.-1 by the Court of the Munsiff, K. G. F. in O. S. No. 746 of 1990. The petitioner-Employee is the plaintiff in O. S. 747 of 1990 and has sought for a declaration that he was born on 27-10-1936 instead of the year 1930, the date found in the Service Records of the first defendant's Undertaking namely, bharat Gold Mines Ltd. (Government of India Undertaking ). ( 2 ) THE petitioner-plaintiff has also moved the trial court for an injunctive relief under Order 39, Rules 1 and 2 restraining the defendant from superannuating him with effect from 1-1-1991 on the strength of the date of birth originally found in the service records. The counsel on record have taken this Court to the entire pleadings, documents and orders passed by both the courts while deciding the issue on I. A.-I under Order 39, Rules 1 and 2 of the code of Civil Procedure. ( 3 ) BY consent of both the counsel, the civil revision petition is admitted and posted for hearing. Heard both the counsel on merits. ( 4 ) IT is noticed that the plaintiff has brought to the notice of the First Appellate Court that the Rulings rendered by the High Court in several revision petitions arising out of similar subject-matter wherein injunctive reliefs have been granted at the time of their admission in respect of the different persons similarly situate. The first defendant's Undertaking has pleaded that by looking at the nature of the relief sought for and the circumstances stated, there are no compelling reasons warranting issuance of injunctive order. In view of the fact that if the plaintiff succeeds, in that event, he may ask for damages. Another plea of the first defendant Undertaking is that it is on the statement of the plaintiff himself, the date of birth was entered in the service Registers at the time of his joining the service as the year 1930 and no court of equity should give helping hand to the persons who have slept over their rights for over a period of 33 years. ( 5 ) FURTHER, the defendants' counsel has argued that the rights and obligations of an employee are governed by the conditions of service and as well as the Service Registers maintained by the Undertakings. As such, in the absence of mala fides, the superannuation has to be given effect to on the basis of the records maintained by the establishments. More than anything else, the defendants have averred that in spite of the Circulars dated 2-12-1963 and 3-4-1964 issued to all the employees in the years 1963 and 1964 for production of relevant documents for purpose of rectification of their dates of birth in their service Registers, the plaintiff did not either produce any document or make any representation regarding his date of birth as being incorrect. The court of the Munsiff negatived the injunctive relief in favour of the plaintiff after perusing all the materials produced before it, and further the First Appellate court has discussed in detail all the materials placed before it even though the exercise of its appellate jurisdiction was limited. As is often said, it is not ordinarily open to the Appellate Court to substitute its own exercise of discretion for that of the trial Judge; if it appears to the Appellate Court that in exercising its discretion, the trial court has acted unreasonably or capriciously and has ignored the relevant facts and has adopted unjudicious approach, then it would be certainly open to the Appellate Court as in many cases, it may be its duty to interfere with the trial court's exercise of jurisdiction. It is to be noted that the granting or refusal of an order of injunction is in the discretion of the trial court and when the trial court has in the exercise of its discretion decided to grant or refuse the prayer, it is not open to the Appellate Court to come to a different consideration or conclusion and to interfere with the exercise of the discretion under appeal solely on the grounds that if it had considered the matter at the trial stage, then it would have come to a contrary view. ( 6 ) IN the instant case, it is found that the Appellate Court has confined itself to its own limitations as enjoined under the Act and the order that is impugned in this revision petition does not suffer from any legal infirmities. ( 6 ) IN the instant case, it is found that the Appellate Court has confined itself to its own limitations as enjoined under the Act and the order that is impugned in this revision petition does not suffer from any legal infirmities. Under section 115 of the Code of Civil Procedure, no doubt this Court has a duty to interfere provided in case where the Appellate Court has exercised its discretion either illegally or with material irregularity. ( 7 ) SHRI K. Subba Rao, the learned counsel for the petitioner submitted that the order of the First Appellate Court not only suffers from illegality or material irregularity but also on the very face of it, it is perverse. I am also aware that even though there are concurrent findings of fact, this Court will definitely interfere with the findings, if both the courts have based their finding on conjectures and surmises and that they have lost sight of the relevant piece of evidence which have not been controverted. Here in the instant case, the documents on which the plaintiff wants the court to rely upon for purposes of warranting issuance ofinjunctive relief are controverted by the other party and the defendants have also pleaded that the documents have come into existence under doubtful circumstances, which on the face of it, cast a doubt as to its genuineness. I am of the view that this Court, in the exercise of its rcvisional powers should not come to a different conclusion of its own in respect of the concurrent findings of fact until and unless the findings exercised and arrived at by both the courts below are rendered on the basis of non-existent matters and baseless assumptions. ( 8 ) IT is seen from the impugned order of the First Appellate Court that two interlocutory applications have been filed, one under Order 41, Rule 27 and another under Order 16, Rules 1 and 2 for the purposes of placing materials before the Appellate Court for better appreciation of the facts which warrant setting aside of the order of the trial court in respect of the issuance of injunctive relief. As already slated, the powers of the Appellate Court is not to embark upon an independent enquiry and to assess facts on additional materials purported to be placed before it as it is well-established that while dealing with discretionary orders passed by the trial court negativing the injunctive relief, the Appellate Court can interfere only when it finds that the order passed by the trial court is opposed to the well-established principles in the exercise of judicial discretion and further when it finds that the order passed by the trial court is arbitrary, capricious or perverse and not on sound principles of law and further not when the Appellate Court finds that on facts and on record whether on the materials that arc already there or the materials that are said to be produced by invoking provisions of Order 41, Rule 27 and Order 16, rules 1 and 2 of Code of Civil Procedure and that it can come to a different conclusion than the one arrived at by the trial court. The reasoning advanced by the Appellate Court in dismissing the appeal are based, in my view, on sound principles of law. ( 9 ) I am of the view that this is not a case where interference of this Court in the exercise of its powers under Section 115 is warranted. Further, it is to be noted that the First Appellate Court while confirming the order of the trial court has embarked upon an enquiry beyond its jurisdictional limits while dealing with interlocutory applications under Order 39, Rules 1 and 2. So it has to be made very clear that the observations made by the First Appellate Court in respect of certain materials placed before the court should not prejudice the parties at the time of adjudication of the subject-matter of the suit at the final stage of the proceedings and further it is to be made clear that if there are two views possible on the set of facts placed before the court, this Court in its revisional jurisdiction should not interfere with the findings arrived at by the courts below. It is further stated that when two reasonable views on the basis of the materials available on record at the stage of interim injunctions are possible, the High Court will not interfere under Section 115 of the Code of civil Procedure. It is further stated that when two reasonable views on the basis of the materials available on record at the stage of interim injunctions are possible, the High Court will not interfere under Section 115 of the Code of civil Procedure. ( 10 ) THE ratio decidendi of the case reported in Lalithakshi Annadanagowda v Sadashivappa Basappa and Another, 1983 (2) Kar. L. J. 289 postulate the ambit and the parameters ot the First Appellate Court and as well as that of the trial court while considering the applications filed under Order 39, Rules 1 and 2. It is also stated that if the discretion that has been exercised by both the courts are reasonable and are in a judicious manner, the fact that the circumstances warrant the courts to take a different view of the matter would not be sufficient by itself to interfere with the discretionary orders passed by both the courts. In the aforesaid decision, the following observation is relevant:"the granting or refusal of an order of injunction is in the discretion of the trial court and when the trial court has in the exercise of discretion decided to grant or refuse the prayer, it is certainly the right and duty of the court of appeal to set aside its order and make its own order and exercise its own discretion, when it is satisfied that there was no exercise of judicial discretion by the trial court or that the ground or the basis on which the discretion has been exercised was wrong and not otherwise. " ( 11 ) EVEN the Supreme Court in a decision rendered and reported in The Printers (Mysore) Private Ltd. v Pothan Joseph, AIR 1960 SC 1156 has held as follows:"as it is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge, but if it appears to the appellate court in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts and has adopted an unjudicial approach then it would certainly be open to the appellate court - and in many cases it may be its duty - to interfere with the trial court's exercise of discretion. " ( 12 ) IN the instant case, both the courts have relied upon the materials placed by the plaintiff and have come to a conclusion that the facts placed before the courts do not warrant any issuance of injunctive relief. When such is the case and when the powers that have been exercised by the courts are well within the parameters of Order 39, Rules 1 and 2, it is not proper for this Court in the exercise of its powers under Section 115 to interfere with the findings and I have already made clear that the findings either of the First Appellate Court or that of the trial court should not prejudice the rights of the plaintiff at the time of the final adjudication of the issues involved in the subject-matter of the suit. ( 13 ) PETITIONER also has moved this Court for grant of injunctive relief, perused all the materials. I am of the view that there are no compelling reasons to grant any injunctive relief since the conduct of the plaintiff in accepting the recorded date of birth for more than 3 decades gives a lie to his present claim of change in the date of birth. The present claim of the plaintiff based on educational certificate, birth extract seems very inconsequential against the sanctity and authority of time honoured entries in the Service Book which the plaintiff himself has been accepting for more than 30 years. Entries in the Service records which have stood the test of time and remain unchallenged for a considerable period cannot be modified unless there are overwhelming reasons to establish that the entries had been made under dubious or erroneous circumstances which throw grave doubts about the authenticity or validity of the entries and the conduct of the plaintiff has been throughout transparently open and above board. It is recognised principle that unless the entry is challenged well in time, unless it is established that the plaintiff had not derived any undue benefit which he would not have enjoyed by his claim of changed date of birth at the fag-end of one's career should not be countenanced. In view of the same, I feel that for purposes of obtaining injunctive relief plaintiff has not made out prima facie case warranting this Court's interference in granting injunctive relief. In view of the same, I feel that for purposes of obtaining injunctive relief plaintiff has not made out prima facie case warranting this Court's interference in granting injunctive relief. ( 14 ) HENCE, I confirm the impugned order passed by the First Appellate court in M. A. No. 29 of 1991. But in all fairness taking into consideration the nature of the pleadings and also the nature of the relief sought or by the plaintiff, it is advisable that the entire suit should be disposed of within six months from this date and both the counsel have given assurance that they would co-operate with the progress of the case before the trial court. ( 15 ) SRI K. Subba Rao, learned counsel for the petitioner has brought to my notice that LA. has been filed under Order 39, Rule 2 (a) and has requested the court to consider that LA. also at the time of the final disposal. It is made clear that if really there has been breach committed by the party, he may move the trial court for proper redressal of the matter. ( 16 ) IN the result, civil revision petition stands dismissed. No costs. --- *** --- .