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2008 DIGILAW 494 (JK)

Mohd. Altaf Mir v. Bilal Ahmad Mir

2008-12-18

MANSOOR AHMAD MIR

body2008
1. This revision is directed against the order dated 12th of April, 2006 passed by Sub-Judge, Anantnag, in a suit titled as Bilal Ahmad Mir Vs. State and others, for short the impugned order. Brief Facts: 2. Respondent-Bilal Ahmad Mir filed a suit for declaration, declaring that he is entitled to appointment/ engagement as Rehbar-i-Taleem teacher in Government Middle School Dupatyar, education zone Bijbehara District Anantnag, and for declaring the selection of defendants 6 and 7, Sarfaraz Ahmad Mir and Mohammad Altaf Mir, as null and void with the command to the official defendants to issue formal appointment/ engagement order in favour of the plaintiff on the grounds taken in the plaint. 3. Defendants appeared and resisted the suit. Seven issues came to be framed vide order dated 17th of December, 2005. Issues 1 and 2 came to be treated as preliminary issues. It is apt to reproduce issues 1 and 2 herein as under:- 1. Whether the suit is not maintainable by application of Article 37 of Civil Service Regulation? OPD 4 and 5. 2. Whether the suit is bad for violation of provisions of section 80 C.P.C.? OPD 4 and 5. 4. Vide impugned order both the preliminary issues came to be decided in favour of plaintiff-respondent No.1 and against the defendant-petitioner and respondents 2 to 7. Feeling aggrieved, petitioner has questioned the impugned order. 5. It appears that advertisement notice came to be issued and cut of date for applying and determining merit/ qualification was fixed as 20th of November, 2004. In terms of the advertisement notice and the order dated 18th of November, 2004 issued under No.CEO/A/SSA/9797-816 by Chief Education Officer, Anantnag, 20th of November, 2004 is the date for determining eligibility of the candidate who had to apply. Admittedly, plaintiff-respondent No.1 was more than 18 years on 20th of November, 2004. 6. The argument of learned counsel for the defendant-petitioner that petitioner was not 18 years old on 1st of January, 2004 thus was not eligible is devoid of force for the simple reason that notification/ order dated 18th November, 2004 (supra) has given the cut of date for determining merit and qualification. So in terms of that notification, the petitioner was eligible and was more than 18 years on 20th of November, 2004. So in terms of that notification, the petitioner was eligible and was more than 18 years on 20th of November, 2004. Even othersie, Article 37 of Jammu & Kashmir Civil Service Regulations, is not applicable to the instant case for the simple reason that the said Article relates to the age of direct recruitment to the Government Service in subordinate and gazetted services. 7. The engagement under Rehbar-e-Taleem scheme cannot be said to be a recruitment to any service. It was launched in order to achieve three objectives; (1) promoting and decentralizing the management of elementary education with the community participation and involvement, (2) to ensure accountability and responsiveness through a strong backup and supervision through the community and (3) to operationalize effectively the schooling system at the grass root level. 8. The concept of the Rehbar-e-Taleem Scheme is to make up the deficiency of the staff at the elementary level of education and to ensure peoples participation at gross root level. The scheme also provides that Rehbar-e-Taleem would be deemed to be a local committee worker for a period of five years and shall be in receipt of monthly honorarium for a period of five years. He is to be engaged at the initial stage for a period of two years and thereafter period can be extended for three years subject to the satisfactory performance. So, in the given circumstances, it can not be said to be a service to a direct recruitment post and thus Article 37 has no application at all. 9. Viewed thus, I am of the considered view that issue no.1 came to be rightly decided in favour of the plaintiff and against the defendants. 10. Now, coming to issue No.2. Mr. Lone heatedly argued that the plaintiff has amended the plaint and after amendment the plaint was to be returned for its presentation after 60 days in terms of Section 80 of Civil Procedure Code, for short Code, or fresh leave was to be sought in terms of Section 80(3) of the Code. Mr. Lone further argued that an interim direction was passed by the trial court-came to be set-aside by this court and thus suit was not of emergent nature and the plaint was to be returned and filed after expiry of 60 days from the date of issuance of notice required under Section 80 of the Code. Mr. Lone further argued that an interim direction was passed by the trial court-came to be set-aside by this court and thus suit was not of emergent nature and the plaint was to be returned and filed after expiry of 60 days from the date of issuance of notice required under Section 80 of the Code. The trial court has wrongly decided issue No.2. 11. Plaintiff-respondent no.1 filed a suit along with application under Section 80(3) of the Code for grant of leave. The trial court considered the matter and held that matter was of emergent nature granted leave to file the suit without following the mandate of requirement of notice under Section 80 of the Code. The trial court vide order dated 25th of April, 2005 directed the parties to maintain the position which was existing on the date of institution of the suit i.e. 12th of March, 2005. Feeling aggrieved, the defendant-petitioner filed revision petition-came to be allowed vide order dated 10th of June, 2005 and order came to be set-aside. It is apt to reproduce the relevant portion of the said order herein: ..It goes without saying that anything done during pendency of the suit is subject to the result of the suit on the principle of lis pendence. In the instant case the order of appointment was subject to final outcome of the suit. In other words, it could be set aside/ cancelled by the decree, it however virtually stands cancelled by an interim order. In my opinion, an order of appointment having been issued, rightly or wrongly, the same can be challenged in an amended suit and not by this circuitous method of restoring status quo ante. 12. After noticing the order, the Plaintiff moved an application seeking permission to amend the plaint-came to be granted vide order dated 7th of October, 2005. Defendant challenged the said order by the medium of revision petition-came to be dismissed. It is apt to mention herein that this court while reversing the interim direction observed that if any order is passed during the pendency of the suit, the said order is subject to final outcome of the suit and held that the order of appointment issued in favour of the defendant was subject to the final outcome of the suit while keeping in view the principle of Lis Pendence. In terms of Section 80(3) of the Code, it was for this court to direct the plaintiff to file fresh suit after following the requirement of law. My this view is fortified by judgment of the Punjab and Haryana High Court delivered in case titled Union Territory of Chandigarh and others Vs. V. K. Khanna and others, reported as AIR 1985 Punjab & Haryana 32. It is apt to reproduce para-7 of the said judgment herein:- 7. Adverting to the facts of the present case it is clear that the Court came to the conclusion that the plaintiff could not be given the relief claimed by him under sub-s. (2). It was, therefore, incumbent upon it to return the plaint to the plaintiff under the proviso with a direction that it should be presented after serving notice as required by sub-s.(1). In my view, the trial Court has not interpreted sub-s.(2) of S.80 correctly. Consequently I accept the revision petition, set aside the order of the trial Court and direct it to return the plaint to the plaintiff for presenting the sameafter complying with the requirements of sub-s. (1) of S.80 of the Code. No order as to costs. 13. This court in its wisdom has not thought it proper to direct the return of the plaint, how can the trial do so. Even otherwise the question is very important. It deem it proper to thrash it out. 14. The word `shall is used in the proviso to sub-section 3 of section 80 of the Code. If the court is of the opinion that no urgent relief is to be granted, the plaint is to be returned for its presentation after complying with the requirement of section 80 of the Code but this court has not thought it proper to return the plaint but directed the plaintiff to amend the plaint. 15. The object of notice contemplated by Section 80 is to give concerned government/ Public officer an opportunity to reconsider the legal position and to settle the claim. Section 80 of the Code is just to avoid unnecessary litigation. The purpose of this section is not to defeat the case of the plaintiff by dragging him into technicalities and procedural wrangles and tangles or to dismiss the suit by asking him to present the plaint after following the mandate of Section 80 of the Code. 16. Section 80 of the Code is just to avoid unnecessary litigation. The purpose of this section is not to defeat the case of the plaintiff by dragging him into technicalities and procedural wrangles and tangles or to dismiss the suit by asking him to present the plaint after following the mandate of Section 80 of the Code. 16. This court in case titled Union of India Vs. Hari Tara Charitable Trust Jammu, reported as 1996 SLJ 49 and in another case titled Firm Ghulam Mohi-ud-Din and others Vs. State of Jammu & Kashmir, reported as AIR 1961 J&K 6 has laid down the same principle. 17. Now, the question arises, once permission is granted and by subsequent developments, the plaintiff is forced to pray for amendment, has the plaintiff to seek fresh leave in terms of Section 80(3) of the Code or has he to fulfill the mandate of requirement of notice under Section 80 of the Code. The answer is in negative. Once suit is filed, permission is sought and granted and if any order is passed during pendency of the suit which renders suit of the plaintiff infructuous or compels the plaintiff to pray for amendment and the cause of action is same, the plaintiff has not to seek fresh permission and has not to follow the mandate of Section 80 of the Code. But answer is in affirmative, if cause of action is different and not one interlinked with the cause of action already mentioned in the plaint. My this view is fortified by judgment of Calcutta High Court titled Lalchand Chowdhury v. Union of India, reported as AIR 1960 Calcutta 270. It is apt to reproduce relevant portion of para-14 of the said judgment herein: 14. I am of opinion that if a plaint has to be amended owing to facts which have arisen subsequent to the institution of the suit a fresh notice under Section 80 of the Code of Civil Procedure need not be served by the plaintiff. The same principle applies to a plaintiffs additional written statement necessitated by amendments introduced by the defendant. It is true that by this process the suit cannot be converted into a suit of a different character. In such a case a fresh suit must be brought after service of a fresh notice under Section 80: vide Mullas Civil Procedure Code, 12th edition, page 310. It is true that by this process the suit cannot be converted into a suit of a different character. In such a case a fresh suit must be brought after service of a fresh notice under Section 80: vide Mullas Civil Procedure Code, 12th edition, page 310. In the instant case the relief claimed in the plaint was compensation for, inter alia, the failure or neglect of the Railways to carry the goods safely to the plaintiff within a reasonable time. The relief asked for and the basis thereof are not altered by the averments in the Additional Written Statement which only embody certain further materials in support of the plaintiffs contention. No fresh notice under Section 80 was in my opinion, therefore necessary. 18. It is apt to reproduce Note-A of Calcutta High Court judgment delivered in case titled State of Bihar and others Vs. United Industrial Bank Limited and others, reported as AIR 1984 NOC 224 Calcutta herein: (A) Civil Procedure Code (5 of 1908); Section 80-Amendment of plaint becoming necessary due to subsequent events but not introducing new cause of action-Fresh notice under Section 80 is unnecessary. 19. Keeping in view the facts of the case and discussion made hereinabove, the amendment of plaint became necessary due to subsequent events/ developments and the cause of action is interlinked with the cause of action as already mentioned in the plaint. 20. When the necessary amendment was sought the defendants filed written statement, participated in the proceedings, issues came to be framed and have taken all steps, thus are precluded to raise the objection in terms of Section 80 of the Code. My this view is fortified by the judgment of Madya Pradesh High Court titled Shri Kailash Chandra Jain Vs. State of Madhya Pradesh and another, reported as AIR 1992 MP 242. It is apt to reproduce relevant portion of para-7 of the said judgment herein: 7. Once such a leave had been granted and written statement had been filed and all the steps taken and orders passed in the case were in the presence of the State Govt. through its counsel representing the case right from 1979, it would not merely be piling unreason upon technicality but it also cannot stand the test of scrutiny of the specific statutory provisions as laid down in both the substantive part of S.80(2) as well as the proviso thereto. 21. through its counsel representing the case right from 1979, it would not merely be piling unreason upon technicality but it also cannot stand the test of scrutiny of the specific statutory provisions as laid down in both the substantive part of S.80(2) as well as the proviso thereto. 21. In view of the above discussion, the impugned order is legally correct needs no interference. 22. It appears that the trial court has not framed issue relating to the jurisdiction of the trial court. It is for the trial court to consider whether issue is to be framed while keeping in view the pleadings of the parties and law applicable. 23. Viewed thus, revision petition is dismissed along with all connected CMPs. Interim direction, if any, shall stand vacated. Send down the record along with a copy of this order.