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2011 DIGILAW 2640 (RAJ)

Madan Kumari v. Udaipur University, Udaipur

2011-12-01

KAILASH CHANDRA JOSHI

body2011
Hon'ble JOSHI, J.—This civil second appeal has been filed by appellant-plaintiff Smt. Madan Kumari wife of Shri Chandra Prakash Bhatnagar against the respondent Udaipur University, Udaipur (Mohanlal Sukhadia University) being aggrieved by the judgment dated 14.12.1992 passed by learned Civil Judge, Udaipur in Civil Appeal No. 46/1990, whereby the learned lower appe-llate court has dismissed the appeal of the appellant-plaintiff and affirmed the judgment and decree dated 31.8.1989 passed by the learned Munsif and Judicial Magistrate, First Class, Udaipur City (North), Udaipur in Civil Suit No. 49/1981, whereby the suit of the appellant-plaintiff was dismissed. 2. The brief facts of the case are that appellant-plaintiff Smt. Madan Kumari filed a civil suit against the respondent-defendant University inter alia stating that she appeared in the B.A. Examination of the year 1978 in Mathematics as additional subject. Since the result of the examination did not come as per the expectations of the appellant-plaintiff, she applied for re-evaluation of the answer-sheets of the First and Second Paper of B.A. Second Year and First Paper of B.A. Third Year, but the authorities of the respondent University did not respond despite reminders being given in this regard. The appellant-plaintiff again applied for re-checking of the First Paper of Third Year, but the respondent-University got re-checked the Third Paper of the Third Year, therefore, the purpose of the appellant-plaintiff could not be served. It, is alleged that had the answer-sheets of the appellant-plaintiff been re-checked on time, she must have passed and got the benefit the pay scale of Second Grade, but the same did not happen. It is further alleged that in order to make available some benefits to one Smt. Shakuntala Pagaria, the concerned Clerk and Examiner of the respondent-University under a conspiracy have changed the marks of the appellant-plaintiff of Second Paper of Second Year to 11 instead of 19 and marks of Smt. Shakuntala Pagaria have been changed from 12 to 24. It is further alleged that said Smt. Shakuntala Pagaria used to take tuitions from the Examiner of the Second paper of Second Year. It is further alleged that if there had been no forgery in the tabulation register of the examination results, the appellant-plaintiffs must have passed. It is, therefore, prayed that on the basis of the original entries of the tabulation register, the appellant-plaintiff may be declared passed. 3. It is further alleged that if there had been no forgery in the tabulation register of the examination results, the appellant-plaintiffs must have passed. It is, therefore, prayed that on the basis of the original entries of the tabulation register, the appellant-plaintiff may be declared passed. 3. The respondent-University contested the suit by filing the written statement, wherein they admitted that the appellant-plaintiff filed application for re-evaluation, but it was stated that since there was cuttings in the application, therefore, it was not legible as to for which paper of the Third Year, the appellant plaintiff applied for re-evaluation. Further it was stated that as per the application of the appellant-plaintiff, the result of re-evaluation was declared on 6.5.1980. According to the revised results, the appellant-plaintiff was declared failed in the examination of Second Year, whereas the result of the examination of Third year remained unchanged after re-evaluation, thus, the appellant-plaintiff was declared failed as she could not pass in all the papers and the said result was informed to the appellant-plaintiff. It is further stated that even after that, in response to the letter of the appellant-plaintiff dated 19.7.1979, it was ordered that on the earlier fees paid by the appellant-plaintiff her First Paper of Third Year be re-evaluated. On this re-evaluation, the appellant-plaintiff was declared passed in the First Paper of Third Year, but still she remained failed in additional subject Mathematics of the B.A. Examination as she could not pass in all the papers. Further the allegation of forgery was denied and it was prayed that the suit of the appellant-plaintiff may be dismissed. 4. On the basis of the pleadings of the parties, the learned trial court framed the following two issues:- 1- D;k izfroknh u okn ds izkFkZuk i= fnukad 19-9-79 esa ntZ mRrj iqfLrdkvksa dk iquZewY;kadu dj fy;k gS\--- izfroknh 1 ,- D;k izfroknh fo'ofo|ky; ds lacaf/kr fyfid ,oa ijh{kd us lkft'k dj Jherh 'kdqUryk ixkfj;k dh inksUufr gsrq oknh;k ds eqdkcys csgrj volj miyC/k djkus dh fu;r ls o okn i= dh dye ua- 8 c esa of.kZr vadksa dh izfof"B Vscqys'ku jftLVj esa dh xbZ ftlls oknh;k vuqrhZ.k gqbZ vU;Fkk mRrh.kZ gksrh\ ---- oknh;k 2- vuqrks"k\ 5. After recording the oral and documentary evidence of the parties and on hearing the final arguments, the learned trial Court decided both the issues against the appellant-plaintiff and dismissed the suit. 6. After recording the oral and documentary evidence of the parties and on hearing the final arguments, the learned trial Court decided both the issues against the appellant-plaintiff and dismissed the suit. 6. Being aggrieved by the judgment and decree passed by the learned trial Court, the appellant plaintiff filed an appeal before the lower appellate Court, but the learned appellate Court vide the impugned judgment dismissed the appeal of the appellant-plaintiff and affirmed the judgment and decree passed by the learned trial Court. Hence, the appellant-plaintiff has filed the present second appeal. 7. This court while admitting the second appeal on 27.1.1997 framed the following substantial questions of law:- 1. WHETHER the parties cannot be allowed to travel beyond the pleadings? 2. WHETHER in the present case, since the defendant had not pleaded in its written statement about proportionate deduction of marks, therefore, it is precluded to adduce evidence? 3. WHETHER genuineness of the paper cutting, erasing and interpolations in the tabulation can be raised in the second appeal and if so, what was its effect? 8. In this second appeal, the contention raised by the learned counsel appearing on behalf of the appellant-plaintiff is that both the courts below have made out a new case for the respondent-defendant as the simple case as set up by the appellant-plaintiff in her plaint was that she obtained 19 marks in Second Paper of Second Year in Mathematics subject but for the purpose of favouring another candidate Smt. Shakuntala Pagaria, the appellant-plaintiff was awarded 11 marks instead of 19 marks and for this purpose, cuttings were made in the tabulation register, but the learned trial Court as well as the first appellate court has appreciated the evidence from another angle and there was no defence on the part of the respondent-defendant in the written statement that cutting were made due to the reason that initially the marks were allotted out of maximum 40 marks and subsequently proportionately marks were reduced to 11. It is contended that in the absence of any pleadings on behalf of the respondent-defendant regarding the proportionate deduction of marks, the evidence in this regard has wrongly been considered by the learned trial Court as well as the learned first appellate court. It is contended that in the absence of any pleadings on behalf of the respondent-defendant regarding the proportionate deduction of marks, the evidence in this regard has wrongly been considered by the learned trial Court as well as the learned first appellate court. The learned counsel for the appellant-plaintiff further argued that there was no occasion for the appellant-plaintiff to raise objection regarding genuineness of the paper cutting, erasing and interpolations in the tabulation before the first appellate court, therefore, the appellant is right in raising this objection for the first time in the second appeal. 9. On the other hand, learned counsel appearing for the respondent-defendant contended that new plea should not be allowed to be raised at the stage of second appeal as the original case of the appellant-plaintiff was only for re-evaluation of her answer-sheets of mathematics subject and later on by way of amendment the appellant-plaintiff pleaded in para No. 8, five grounds to declare her successful in the Mathematics subject. These grounds were denied by the respondent-defendant and while adducing the evidence, reasons for denial were explained by the witnesses and a detailed cross-examination of each of the witness was conducted by the learned counsel for the plaintiff. It cannot be said at this stage that the appellant-plaintiff was put to this defence surprisingly or abruptly as she was having the knowledge of this defence from the initial stage and the principal contention of the appellant-plaintiff was regarding favouring to Smt. Shakuntala Pagaria by the Examiner so as to adversely affect the interest of the appellant-plaintiff. In para No. 8(n), the appellant-plaintiff pleaded that there was substantial irregularities in the tabulation register, thus, it is not a case in which the defendant was allowed to adduce evidence beyond the pleadings or there was no pleading in the written statement about proportionate deduction of marks because in the question paper itself it was written that for the Science students the maximum marks were 40 and for the Arts students the maximum marks were 27 and the appellant-plaintiff was knowing the fact that she will be awarded marks out of maximum 27 marks. 10. I have heard the learned counsel appearing for the appellant-plaintiff and the learned counsel appearing for the respondent-defendant and perused the record of the case. 11. 10. I have heard the learned counsel appearing for the appellant-plaintiff and the learned counsel appearing for the respondent-defendant and perused the record of the case. 11. To appreciate the above contentions, first of all this court has to keep in mind the scope of Sections 100 and 101 of the Code of Civil Procedure. A conjoint reading of Sections 100 and 101 of the CPC makes it quite clear that:- (1) a second appeal will lie only on the ground of an error in law or procedure; and that (2) a second appeal will not lie merely on the ground of an error on a question of fact. 12. About substantial question of law, it can be said that by the Amendment Act of 1976 the three grounds on which a second appeal could lie under the former Section 100 have been abrogated and in their place only one ground has been substituted which is a highly stringent ground, namely, that there should be a substantial question of law. It is now, therefore, not enough if a mere question of law is involved. It must be a substantial one. Whether a particular question is substantial or not must depend on the circumstances of each case. The words `substantial question of law' means a substantial question of law as between the parties in the case involved and not merely a question of general importance. 13. It is settled position of law that if there is a finding based on no evidence or in disregard of evidence or on inadmissible evidence or on assumptions of facts without inquiry, such findings can be disturbed in second appeal, as they amount to an error of law. This view has been expressed by the Hon'ble Apex Court in Jagdish Singh vs. Nathu Singh ( AIR 1992 SC 1604 ) and Roop Singh vs. Ram Singh (2000 AIR SCW 1001). 14. This view has been expressed by the Hon'ble Apex Court in Jagdish Singh vs. Nathu Singh ( AIR 1992 SC 1604 ) and Roop Singh vs. Ram Singh (2000 AIR SCW 1001). 14. In view of the above judgments, the position of law is very clear that as a rule High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be or as a rule in second appeal, finding of fact should not be disturbed, but if, as already stated above, they are based on no evidence or in disregard of evidence or on inadmissible evidence or against the basic principles of law or on the face of it there appears error of law or procedure or when there is a complete variance between pleadings and proof, such findings can be disturbed. 15. Looking to the above proposition of law, it is to be seen in this case whether the learned trial court as well as the learned first appellate court have allowed the respondent-defendant to travel beyond the pleadings and whether the evidence adduced by the respondent-defendant regarding proportionate deduction of marks could be allowed by the learned trial court and whether the genuineness of the paper cutting, erasing and interpolations in the tabulation can be raised in the second appeal when it has not been raised by the appellant in the first appeal? 16. To appreciate the arguments of the learned counsel for the parties, I have to see whether the evidence adduced by the parties could be allowed to be adduced. Here it is relevant to state that facts are of two kinds, facta probanda and facta probantia. Facts on which the party pleading relies for his claim or defence are called facta probanda and the facts by means of which they are to be proved are called facta probantia. The former are material facts, the latter evidence to prove the former. It may further be stated here that pleadings should not state the evidence by which the facts are to be proved the Hon'ble Supreme Court in Om Prabha vs. Abnash Chand ( AIR 1968 SC 1083 ) has observed that the ordinary rule of law is that evidence should be given only on plea properly raised and not in contradiction of the plea. 17. 17. The general principle is that no party should be taken by surprise by the change of case introduced by the opposite party. Therefore, the test, when an objection of this kind in taken, is to see whether the party aggrieved has really been taken by surprise, or is prejudiced by the action of the opposite party, In applying that test the whole of the circumstances must be taken into account and carefully scrutinized to find out whether there has been such surprise or prejudice as will disentitle a party to relief. Every variance, therefore, between pleading and proof is not necessarily fatal to the suit or defence and thus, the general principle that the parties cannot be allowed to travel beyond the pleadings will not be strictly applied where there could be no surprise and the opposite party is not prejudice thereby. A variation which causes surprise and confusion is always looked upon with considerable disfavour. But, where a ground though not raised in the pleadings is expressly put in issue or where the new claim set up is not inconsistent with the allegations made in the pleadings and is based on facts alleged therein, there is no question of surprise to the opposite party. So also, where although there was no specific plea or specific issue on a particular question, the parties have gone to trial with the full knowledge that the question was in issue and adduced evidence, there can be no prejudice. Whether the parties have been allowed to travel beyond the pleadings may be gathered from the pleadings taken as a whole, and if a sufficient plea is disclosed and the parties have led evidence on the point the Court can give relief on such plea. 18. The Hon'ble Supreme Court in Bhim Singh vs. Kan Singh ( AIR 1980 SC 727 ) has held that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by the evidence. 19. 19. Thus, from the above discussion, it can be concluded:- (1) That the reason for the general rule that a party is bound by his pleadings is that if he is allowed to substantiate a case different from that pleaded, his opponent will be seriously prejudiced. But the Court may depart from the strict enforcement of the general rule, if it is satisfied that rigid compliance of the rule will lead to injustice. (2) That where no prejudice was caused by the variation between the pleading and the proof to the opposite party, even no objection was raised about it when evidence was being led, such variance would not be fatal to defence of party who has made variation. (3) That generally the parties should not be allowed to travel beyond their pleadings. However, pleadings should be construed liberally and the Court should not adopt a pedantic approach. If the substance of the essential material facts for grant of relief is stated in the pleading, the Court should not throw away the same on the ground of defective form or the deficiency in the pleading. Even if the plea is not raised in the pleading even then a claim of the party cannot be defeated, if the parties know the respective cases of each other on the said plea and led evidence in support of their cases. (4) That if the alternative case is admitted by the defendant in his written statement and not only that, thereafter, both parties have led evidence, in such a situation, decree can be granted on such alternative case. (5) That if the parties have led evidence considering the pleas taken either in pleadings or in evidence, in such circumstances, it is not proper to say that such type of evidence should not be looked into. (6) That if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. (7) That if the parties led evidence knowing what they are going to allege and prove, then in such case general rule would not be applicable and the case would be covered by an issue by implication that though the matter has not been specifically pleaded, yet it is implied in the pleadings of the parties. It is not desirable to place undue emphasis on form, instead substance of pleadings should be considered. 20. Now looking to the above proposition of law, it is to be seen that the substantial questions of law as framed by this Court while admitting the appeal should be answered in what manner. From a perusal of the plaint it appears that in para No. 8 it has been pleaded by the appellant-plaintiff that he obtained 19 marks, but instead of that she was given only 11 marks so as to favour Smt. Shakuntala Pagaria and to adversely affect the interests of the appellant-plaintiff. The respondent-defendant in its written statement denied these facts and while adducing the evidence to disprove these allegations, the respondent-defendant examined three witnesses, namely, DW.1 Inder Singh, DW.2 Rajendra Prasad and DW.3 Sharad Kumar Kanoongo. The original record of the case, i.e. the answer-sheets of the appellant-plaintiff, tabulation chart and papers were summoned from the respondent-defendant and they were summoned at the request of the appellant-plaintiff. After adducing the aforesaid evidence, the respondent-defendant examined the above three witnesses and denied the fact of any favouritism or any substantial irregularities in the tabulation chart and adduced categorical evidence to show that in the Second Paper of Second Year of Mathematics subject, the maximum marks for Science students were 40 and maximum marks for Arts students were 27, therefore, the marks of the appellant-plaintiff were proportionately reduced, thus, no injustice or prejudice was caused to the appellant-plaintiff by the respondent-defendant. On the above evidence there was lengthy cross-examination by the appellant-plaintiff and after appreciating the evidence of both the parties and perusing the original record, the learned trial Court decided the issue No. 1 and 1A against the appellant-plaintiff. The issue No. 1A was specifically regarding the fact whether in order to favour Smt.Shakuntala Pagaria, the concerned Clerk conspired against the appellant-plaintiff and for the reasons stated in para No. 8 of the plaint, marks of the appellant-plaintiff were wrongly entered in the tabulation register. The issue No. 1A was specifically regarding the fact whether in order to favour Smt.Shakuntala Pagaria, the concerned Clerk conspired against the appellant-plaintiff and for the reasons stated in para No. 8 of the plaint, marks of the appellant-plaintiff were wrongly entered in the tabulation register. To decide this issue, the evidence of the three defence witnesses was considered by learned trial Court as well as the first appellate court and both the courts found no reason to disbelieve the evidence of DW.1 DW.2 and DW 3, who deposed about the procedure adopted in making entries in answer-books as well as in tabulation register. The original record was also perused by the learned trial court and it came to the conclusion that there was no conspiracy so as to prejudice the interests of the appellant-plaintiff and there was no reason to favour Smt. Shakuntala Pagaria and that from the question paper itself, it was clear that maximum marks for Science students were 40, whereas maximum marks for Art students were 27. 21. In view of the discussion made above, the findings of the learned trial court on the issue No. 1 and 1A appears to be correct and the same do not suffer from any infirmity or illegality, therefore, in this second appeal, the findings on the issue No. 1 and 1A should not be disturbed. For the reasons stated above, the substantial question No. 1 and 2 framed by this Court are answered in the manner that in this particular case, the parties were not allowed to travel beyond the pleadings and the evidence adduced by the respondent-defendant about the proportionate deduction of marks cannot be said to have been allowed without there being any pleadings. 22. Now coming to the substantial question No. 3 regarding objection as to the genuineness of the paper cutting, erasing and interpolations in the tabulation, I have perused the judgment of the learned first appellate court. 22. Now coming to the substantial question No. 3 regarding objection as to the genuineness of the paper cutting, erasing and interpolations in the tabulation, I have perused the judgment of the learned first appellate court. The learned first appellate court while deciding the appeal of the appellant-plaintiff, in para No. 9 held that the counsel for the appellant did not press the issue regarding any malice on the part of the respondent-defendant and also regarding the cuttings in the tabulation register and her only argument was regarding the question whether the examiner has awarded marks out of maximum marks 40 or 27, thus, the issue regarding the genuineness of the paper cutting, erasing and interpolations in the tabulation was not raised by the appellant-plaintiff in the first appeal. I have also perused the memo of appeal, wherein the main challenge was on the ground that when it was clear for the examiner that for the Arts students the marks were to b awarded out of maximum 27 marks, then there was no reason for him to allot marks to the appellant-plaintiff out of maximum 40 marks. This aspect has been considered by the learned appellate court and this aspect was also thoroughly considered by the learned trial court. Thus, when once in the first appeal, this objection has been left by the appellant-plaintiff, the same cannot be allowed to be raised for the first time in the second appeal. Thus, the substantial question No. 3 framed by this court is answered in the manner that the objection regarding the genuineness of the paper cutting, erasing and interpolations in the tabulation cannot be raised in the second appeal for the first time. 23. In view of the discussion made hereinabove, I find no merit in this second appeal and in my view the same deserves to be dismissed and the judgments of both the lower courts deserve to be affirmed. 24. Resultantly, this second appeal is dismissed and the judgment and decree passed by the learned trial Court so also the judgment passed by the learned lower appellate court are affirmed. 25. No order as to costs.