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2019 DIGILAW 1780 (KAR)

Kallappa v. Renuka

2019-07-24

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. Defendant No.1 being aggrieved by judgment and decree dated 08.03.2017 passed in OS No.440/2016 on the file of the Prl. Civil Judge and JMFC, Dharwad has filed this Civil Revision Petition. 2. The status of the parties is referred to as per their ranking before the trial Court. 3. The brief facts of the case are as follows: The respondent-plaintiff field O.S.No.440/2016 before the trial Court seeking the following reliefs: (a) That the Hon'ble Court be please to declare that the plaintiff being the legally wedded wife of defendant No.1, who is a Government Servant, under the service of defendant No.3 to 4, entitled to get her name entered in the service register of defendant No.4, State Government. (b) That, in case if the Hon'ble Court is of the opinion that the name of the plaintiff is not incorporated in the service registers of the defendant No.1 the defendant Nos. 2 to 4 be directed to enter the name of the plaintiff in the service register maintained by them by issuing necessary directions by way of mandatory injunction. It has been alleged in the suit that plaintiff and defendant No.1 are husband and wife and their marriage was solemnized in the year 2002 and out of their wedlock respondent No.1 gave birth to a son by name Abhay and they led happy married life for some years and thereafter, defendant No.1 started harassing and ill-treating her. He did not heed the advice of the elders. Subsequently, herself and her son were thrown out of the house. The defendant has contacted second marriage with one Asha and has given birth to female child. Thereafter, the plaintiff had filed a petition in MC.No.1/2011 seeking for restitution of conjugal rights and also filed maintenance proceedings in Crl.Misc. No.17/2011. Therefore, she filed the said suit seeking the aforesaid reliefs against the defendant Nos. 1,3 and 4. 4. The defendant No.1 appeared in the said suit and filed written statement denying the claim of the plaintiff. He also filed application under Order VII Rule 11(d) R/w. Section 151 of CPC for rejection of the plaint on the ground that suit is barred by law and accordingly, suit is not maintainable. He contends that the civil court has no territorial jurisdiction to adjudicate the subject matter of the suit involving service matters. He also filed application under Order VII Rule 11(d) R/w. Section 151 of CPC for rejection of the plaint on the ground that suit is barred by law and accordingly, suit is not maintainable. He contends that the civil court has no territorial jurisdiction to adjudicate the subject matter of the suit involving service matters. He also contends that the plaintiff has no locus standi to seek such reliefs against him. Plaintiff filed objections on the application filed under Order VII Rule 11(d) R/w. Section 151 of CPC. 5. The trial Court heard on I.A.No.1 filed by the defendant No.1 under Order VII Rule 11(d) R/w. Section 151 of CPC and passed the impugned order thereby rejecting the application. 6. Defendant No.1 being aggrieved by the impugned order has filed this revision petition on the grounds that the trial Court has committed serious error in law in rejecting the application holding that the suit is maintainable. The trial Court failed to consider that the plaintiff has sought for declaration to declare that she is entitled to enter her name in the service register of defendant No.1 by defendant Nos. 3 and 4. The plaintiff has to approach Karnataka Administrative Tribunal to seek the said remedies under Section 19 the Administrative Tribunal Act, 1985 (for short the 'Act') and civil Court has no jurisdiction to entertain such suit under Section 15 of the Act. 7. Heard the learned counsel for the petitioner and respondents. 8. A short question which arises for consideration in this revision petition is as to whether the plaint is liable to be rejected as barred by Sections 15 and 28 of the Act. 9. The learned counsel for the petitioner-defendant No.1 submitted that civil Court has no jurisdiction to entertain the suit for granting such reliefs as sought by the plaintiff in the suit and that the jurisdiction of the civil Court is barred by Sections 15 and 28 of the Act and she has to approach Karnataka Administrative Tribunal for seeking such reliefs. Therefore, the plaint is liable to be rejected. 10. Therefore, the plaint is liable to be rejected. 10. Per contra, the learned counsel for the respondents submitted that provisions of the Karnataka Administrative Tribunal Act, 1985 are attracted only against government servant and the plaintiff being not a government servant, she has every right to approach the civil Court and seek such remedies and therefore, rejection of the application filed by defendant No.1 is proper. 11. The plaintiff has sought for reliefs at paragraphs (a) and (b) as extracted above. Therefore, the first relief sought for by the plaintiff is for direction to defendant Nos. 3 and 4 that she is entitled to get her name entered in the Service register of defendant No.1 maintained by defendant Nos. 3 and 4 consequently if the name of the plaintiff is not incorporated in the service register of defendant No.1, then the defendant Nos. 2 to 4 may be directed to enter her name in the service register maintained by them and further, she has sought for third relief to restrain defendant No.1 from substituting her name if entered in the service register by issuing a permanent injunction. Therefore, the reliefs sought for by the plaintiff are in respect of the service conditions of defendant No.1, who is admittedly a government servant. Section 3(q) of the Act defines "service matters" in relation to a person, which refers to all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or any corporation owned or controlled by the Government. In addition to remuneration, pension and other retirement benefits and also tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation etc., and any other matter whatsoever connected with service. Therefore, the relief sought for by plaintiff falls under this definition of service matters of defendant No.1. 12. Section 15 of the Act provides that the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts except the Supreme Court in relation to service matters. Therefore, the jurisdiction of the civil court in respect of such matters is taken away and the same is barred. Therefore, the jurisdiction of the civil court in respect of such matters is taken away and the same is barred. Further, Section 28 of the Act expressly provides that " On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no court except the Supreme Court or any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters. 13. Therefore, it is crystal clear that the jurisdiction of the civil Court is clearly barred under Sections 15 and 28 of the Act in respect of any service matter as defined under Section 3(q) of the Act. 14. In the present suit, the reliefs sought for by the plaintiff falls under the definition of service matters and as such, the suit is clearly barred by the provisions of Sections 15 and 28 of the Act. Therefore, the plaint is liable to be rejected under Order VII Rule 11(d) R/w. Section 151 of CPC. Therefore, the impugned order rejecting the application filed under Order VII Rule 11(d) R/w. Section 151 of CPC is illegal, perverse and the same is liable to be set aside. The plaint is liable to be rejected as barred by Sections 15 and 28 of the Act. Accordingly, point for consideration is answered in affirmative. In the result this Court proceed to pass the following: ORDER Civil Revision Petition filed under Section 115 of CPC is hereby allowed. The order dated 08.03.2017 passed by the Prl. Civil Judge and JMFC, Dharwad in O.S.No.440/2016 is hereby set aside. The plaint filed in OS No.440/2016 on the file of the Prl. Civil Judge and JMFC, Dharwad is hereby rejected.