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2001 DIGILAW 197 (JK)

Board Of School Education, J&K v. Samina Bano

2001-09-11

MUZAFFAR JAN

body2001
1. Revision petition has been submitted to set aside the order passed by the learned 3rd Addl. District Judge, Srinagar on 31 -08-1998. 2. Record reveals that the plaintiff filed suit in the Court of learned Munsiff (Sub Registrar), Srinagar for declaration and mandatory injunction on the main grounds that she had appeared in Secondary School Examination (10th Class) under Roll No. 230417 in Nov. 1994 Session and did well in the examination but her result was not declared, but was with held for involvement in unfairmeans. Respondent-Plaintiff prayed that the letter No. F/UFM/SSE/94 dated: 02-03-1996, which cancelled her examination be declared null and void and defendants, present petitioners be directed to declare her result. 3. Alongwith the suit an application for temporary injunction was filed in which the trial Court after hearing the parties directed the present petitioners to declare the result of the plaintiff for the Session Nov./Dec 1994, vide order dated: 31-10-1997. This order was challenged in appeal before 3rd Addl. District Judge, Srinagar. The learned 3rd Addl. District Judge after hearing the parties held that the impugned order dated: 31-10-1997 was a consent order and the appeal against a consent order was not maintainable. It is the validity of this order dated: 31-08-1998 which has been challenged in the present revision. 4. Learned counsel for the respondent Mr. S.M. S. Geelani is shown to have appeared, but is not present. Since the assistance of the learned counsel for the petitioner is available and the revision petition involves purely an interpretation of questions of law, the same is taken up for disposal. 5. Heard the learned counsel for the petitioner and perused the entire record. 6. Learned counsel for the petitioners has submitted that the counsel appearing before the trial Court was not authorised to extend any concession and if any concession was extend by the counsel on his own, the same was against law and not binding on the present petitioners. This submission is fortified from the perusal of the written statement in which the stand of the present petitioners before the trial Court is that the respondent was involved in unfairmeans of cheating in the examination. She was charge-sheeted and given opportunity to associate with the enquiry but she did not associate with the enquiry, inspite of knowledge. This submission is fortified from the perusal of the written statement in which the stand of the present petitioners before the trial Court is that the respondent was involved in unfairmeans of cheating in the examination. She was charge-sheeted and given opportunity to associate with the enquiry but she did not associate with the enquiry, inspite of knowledge. On completion of the enquiry, her examination was cancelled under rules, and in these circumstances the declaration of results could not have been conceded before the trial court. The concession extended by the counsel for the petitioners has been without the authority of the petitioners and does not bind the present petitioners. Learned counsel referred to AIR 1992 Pat 153 and submitted that as the compromise is disputed, therefore, the appeal is maintainable against a compromise which is not legally sustainable and is not based on correct admission. Therefore, the impugned order be set aside. 7. Considered the arguments of the learned counsel for the present petitioners and perused the entire record. 8. Record of the trial Court shows that written statement was filed on 26-06-1990 in which the present petitioners have resisted the plaintiffs suit for declaration on the grounds that the present respondent was disqualified, under rules for cheating, in her examinations and using unfairmeans, resulting in the cancellation of her examination. Written statement was already on the file when the interim order to declare the result, was passed on 31-10-1997. That means the trial court had the advantage of considering the stand taken by the present petitioners-defendants before the trial court in their statement, which was to resist the plaintiffs suit. The concession to declare the result extended by the learned counsel for the defendants-petitioners is not owned by the petitioners because of the clear stand that no such instructions were given to the counsel and the learned counsel was not empowered, even otherwise to make concession in violation of the Rules governing the conduct of examinations. It is an admitted position of law, that no concession can be made by an Advocate before the trial Court to bind the State in utter disregard of Rules and regulations, and unless it is in writing on instructions from the concerned officers of the State. It is an admitted position of law, that no concession can be made by an Advocate before the trial Court to bind the State in utter disregard of Rules and regulations, and unless it is in writing on instructions from the concerned officers of the State. If the concession extended by the counsel acting on behalf of the State or its functionaries is disputed, as in the present case, but is accepted, it will jeopardize the functioning of the State. The view taken by the appellate Court that the appeal is not maintainable against the compromise order, has been obviously taken under erroneous exercise of jurisdiction. 9. The appellate Court has committed another error by rejecting the submission of the present petitioners, that as the compromise was disputed and legally not sustainable, therefore, the Court had jurisdiction to entertain the appeal as held in AIR 1992 Pat 153. The appellate Court seems to have been impressed by the submission of the learned counsel for the respondent that since the order of the trial Court was a consensus order, therefore, it was not subject to challenge. The appellate Court should have considered the repercussions of the disputed compromise in view of the law laid down in AIR 1992 Pat 153 (supra). Relevant portion of the judgment is reproduced as under: "..... If the factum of compromise is disputed by a party, then it would mean that parties are disputing whether they consented to the decree or not. In that event, the decree passed on the basis of the parties, as such, appeal would lie under S. 96 (1) of the Code against the decree disposing of the suit in terms of the compromise and bar under sub-section (3) shall not operate. In such an appeal, by virtue of the provisions of sub-rule (2) of 0. XLI11 Rule I-A, it would be open to a party to contest the decree on the ground that compromise should or should not have been recorded." 10. The appellate Court by not considering that the concession made by the counsel for the present petitioner was not in writing and not owned by the petitioners could have avoided the exercise of erroneous jurisdiction and resolved the controversy effectively under law. 11. The appellate Court by not considering that the concession made by the counsel for the present petitioner was not in writing and not owned by the petitioners could have avoided the exercise of erroneous jurisdiction and resolved the controversy effectively under law. 11. Therefore, on the facts and circumstances and reasons as reflected above, the impugned order which has been passed without considering the legal aspect of a disputed concession by an Advocate not authorised to make the concession has to be set aside. The revision petition is accordingly allowed and the impugned order is set aside. Record be returned.