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2016 DIGILAW 1658 (HP)

H. P. University v. Vandana Pathania

2016-08-10

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Defendants No.1 to 4, in the trial Court, are in second appeal before this Court. Complaint is that the judgment and decree dated 19.12.2003 passed by learned District Judge, Chamba in Civil Appeal No.7 of 2003, whereby the judgment and decree passed by learned Senior Sub-Judge, Chamba in Civil Suit No.241/98/96, for recovery of Rs.50,000/- passed against the appellants herein has been affirmed and the appeal dismissed. 2. The suit was brought to the Court by the plaintiff Vandana Pathania, respondent No.1 herein, for recovery of a sum of Rs.75,000/- against the appellants and proforma respondents No.2 and 3, hereinafter referred to as the defendants, on the grounds that she appeared in all the papers of 4th Semester of M.A. Sanskrit examination, centre Government College, Chamba, in the month of July, 1993, however, when the result of the said examination was declared in the month of October, 1993, she was shown absent on 17th July, 1993 irrespective of she appeared in paper-XIV of the course on that day. Her father made a representation to the defendants on 13.10.1993. Defendants No.1 to 4, in turn, informed that the script/ answer-sheet of the plaintiff in respect of paper-XIV of the course was not received. Since a valuable year of the plaintiff got wasted/lost on account of the negligence attributed to the defendants nor she could appear in interview held for the post of lecturer Sanskrit during the year 1994, therefore, the loss she allegedly suffered was assessed as Rs.75,000/- on this score. She filed a complaint under the provisions of Consumer Protection Act 1985 in District Consumer Disputes Redressal Forum, Chamba, the same, however, was dismissed vide judgment Ex.D-6 dated 23.11.1995 being not maintainable. This has led in filing the suit for damages to the tune of Rs.75,000/-. 3. In the written statement, appellants-defendants No.1 to 4 have raised preliminary objections qua limitation, non-joinder of necessary parties, estoppel and maintainability of the suit etc. On merits, while admitting that the plaintiff appeared in 4th semester examination of MA Sanskrit conducted by defendant No.1-University, it is submitted that the plaintiff did not appear in paper-XIV of the course, which was scheduled to be held on 17.7.1993. Though she marked her presence in the attendance sheet, however, her signatures were not authenticated by the Centre Superintendent. On merits, while admitting that the plaintiff appeared in 4th semester examination of MA Sanskrit conducted by defendant No.1-University, it is submitted that the plaintiff did not appear in paper-XIV of the course, which was scheduled to be held on 17.7.1993. Though she marked her presence in the attendance sheet, however, her signatures were not authenticated by the Centre Superintendent. On the representation of her father, the case of the plaintiff was dealt with in terms of Ordinance No.6.67 and she was given benefit of her signature on the identification book. Consequently, she was permitted to re-appear in paper No.XIV of the course in successive examination, which was to be conducted in November, 1993. Since on 17.7.1993, she was shown to be absent, therefore, no loss was allegedly suffered by her. 4. Defendants No.5 and 6 in written statement they filed separately have also taken the same plea in their defence. 5. On the pleadings of the parties, the following issues were framed: (1) Whether the plaintiff appeared in all the four papers of fourth semester of MA Sanskrit in the month of July, 1993, as alleged? OPP (2) Whether the defendants had misplaced paper of plaintiff as alleged? OPP (3) If issues No.1 and 2 proved in affirmative, whether the plaintiff is entitled to recover Rs.75,000/- as damages from the defendants? OPP (4) Whether the suit is barred by limitation? OPD (5) Whether the suit is bad for non-joinder of necessary parties? OPD (6) Whether the plaintiff is estopped from filing the suit by her act and conduct? OPD (7) Whether the suit is not maintainable in the present form? OPD (8) Whether this Court has no jurisdiction to try the suit? OPD (9) Whether the suit is barred by principles of res judicata? OPD (10) Whether the plaintiff has no cause of action? OPD (11) Relief. 6. Learned trial Judge on appreciation of the evidence as produced has answered issues No.1 to 3 in favour of the plaintiff whereas issues No.4 to 10 against the defendants. The suit as such was decreed for the recovery of Rs.50,000/- against defendants No.1 to 4 jointly and severally, however, no decree was passed against the proforma respondents-defendants No.5 and 6 and the suit qua the said defendants was dismissed. 7. Learned lower appellate Court in appeal has affirmed the judgment and decree passed by learned trial Court and dismissed the appeal. 7. Learned lower appellate Court in appeal has affirmed the judgment and decree passed by learned trial Court and dismissed the appeal. 8. The legality and validity of the impugned judgment and decree has been assailed on the grounds inter alia that the same is contrary to the law and facts of the case. Both the Courts below have committed illegality while arriving at a conclusion that the plaintiff has been prosecuting the complaint in District Consumer Disputes Redressal Forum, Chamba. The plea of the defendants that the suit was barred by the principles of res judicata and the plaintiff immediately after declaration of the result has appeared in supplementary examination to whom the benefit of the provisions contained under 6.67 of the H.P. University Ordinance, was granted. She was estopped from filing the suit; however, the case of the defendants to this effect has also erroneously been ignored and brushed aside. 9. The appeal has been admitted on the following substantial question of law: “1. Whether the benefit of Section 14 of the Limitation could not have been given to the plaintiff while coming to the conclusion that the suit filed was within time?” 10. The appeal has been admitted only on the sole substantial question of law reproduced hereinabove. The adjudication of the substantial question of law takes this Court to the findings recorded by learned trial Court on issue No.4 and affirmed by learned lower appellate Court. 11. Result of the examination of 4th Semester M.A. Sanskrit held in July 1993 was declared in the month of October, 1993 by defendant No.1-University. The complaint in the District Consumer Disputes Redressal Forum, Chamba, District Chamba was filed within one month thereafter i.e. on 8.11.1993 as find mentioned in para 1 of the order Ex.D-6. It is seen that the plaintiff has filed the complaint before learned District Consumer Disputes Redressal Forum, Chamba without wasting any time. The complaint, however, was dismissed with the observations that the same does not disclose any dispute within the meaning of Section 2(1) of the Consumer Protection Act and as such not maintainable. As a matter fact, the complainant was not held to be a consumer within the meaning of Consumer Protection Act. The complaint, however, was dismissed with the observations that the same does not disclose any dispute within the meaning of Section 2(1) of the Consumer Protection Act and as such not maintainable. As a matter fact, the complainant was not held to be a consumer within the meaning of Consumer Protection Act. The dismissal of the complaint, has therefore, resulted in an occasion to the plaintiff to have resorted to any other and further remedy available to her for redressal of her grievances. She, however, has chosen remedy to file the suit for damages and rightly so because in the given facts and circumstances, the suit for recovery of the damages, if any, caused to her was the only remedy available to the plaintiff. 12. It would not be improper to conclude that the plaintiff was pursuing remedy in a wrong forum. Therefore, to adjudicate the question of limitation, takes this Court to the provisions under Section 14 of the Limitation Act. A bare perusal of Section 14 of the Act ibid reveals that in computing the period of limitation for filing a suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceedings, the same has to be excluded, of course when the proceedings relate to the same matter in issue and the Court is satisfied that such issue was prosecuted in good faith in a Court, which due to jurisdictional error was unable to entertain it. 13. The explanation below Section 14(3) makes it crystal clear that the time from the date of institution of the suit till the date when the proceedings terminated in the suit has to be excluded while computing the period of limitation. In the case in hand, as is already said, the complaint in the District Consumer Disputes Redressal Forum, Chamba was filed well within one month of the declaration of the result. The proceedings in the complaint were terminated on 23.11.1995, the day when the same was dismissed vide judgment Ex.D-6 being not maintainable. The suit has, thereafter, been filed well within one year i.e. on 22.11.1996. 14. In a case of this nature where the suit pertains to a wrong committed to a student, Article 113 of the Limitation Act is applicable. The suit has, thereafter, been filed well within one year i.e. on 22.11.1996. 14. In a case of this nature where the suit pertains to a wrong committed to a student, Article 113 of the Limitation Act is applicable. This Court can draw support in this regard from the judgment of our own High Court in Jugal Kishore versus State of Himachal Pradesh & Others, AIR 1995, HP 8. The period of limitation as prescribed under Section 113 of the Limitation Act is three years. Being so, the suit has been filed within the period of limitation. Not only this, but the benefit of Section 14 of the Limitation Act is also available to the plaintiff because she, under the bonafide belief, has been prosecuting the remedy under the provisions of Consumer Protection Act, however, wrongly. Being so, the findings on issue No.4 recorded by learned trial Court and affirmed by learned lower appellate Court cannot be said to be untenable or legally unsustainable. 15. No doubt, it has been urged on behalf of the defendant-University that the issue of estoppel has also been erroneously answered against the defendants, however, such plea has been raised merely for rejection for the reason that the appeal has not been admitted on any other substantial question of law by this Court and even findings on issue No.6 qua estoppel recorded by learned trial Court reveal that the defendants have failed to produce any evidence nor to bring to the notice of the Court as to what were those acts and conduct of the plaintiff which could have estopped her from filing the present suit. Therefore, no such legal question arises for determination. 16. Being so, I find no merit in this appeal and the same is accordingly dismissed. Pending applications, if any, shall also stand disposed of. No order so as to costs.