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2024 DIGILAW 63 (ORI)

Utkal University v. Md. Wazid Hussain

2024-05-20

A.C.BEHERA

body2024
JUDGMENT A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. 2. The appellant of this 2nd appeal was the defendant no.5 before the trial court in the suit vide M.S. No.34 of 1985 and the appellant was also the appellant before the 1st appellate court in the 1st appeal vide M.A. No.01 of 1998. 3. The respondent no.1 of this 2nd appeal was the sole plaintiff before the trial court in the suit vide M.S. No.34 of 1985 and he was the respondent no.1 before the 1st appellate court in the 1st appeal vide M.A. No.01 of 1998. The respondent nos.2, 3 4 and 5 of this 2nd appeal were the defendant nos.1 to 4 before the trial court in the suit vide M.S. No.34 of 1985 and they were the respondent nos.2 to 5 before the 1st appellate court in the 1st appeal vide M.A. No.01 of 1998. 4. The suit of the plaintiff (respondent no.1 in this 2nd appeal) before the trial court vide M.S. No.34 of 1985 was a suit for damages and compensation. 5. The case of the plaintiff (respondent no.1 in this 2nd appeal) against the defendants (appellant and respondent nos.2 to 5 in this 2nd appeal) before the trial court in M.S. No.34 of 1985 was that, he (plaintiff) was a regular student of Intermediate Commerce in B.J.B. College, Bhubaneswar in the year 1981-82. In order to appear annual examination of Intermediate in Commerce, he (plaintiff) filled up the form. The said duly filled up form of the plaintiff was accepted by the defendants and he was allowed to appear annual examination 1982 as a regular student in the center of that B.J.B. College, Bhubaneswar. Some days before examination, the plaintiff was issued with a duly signed Admit Card indicating his Roll number as 308P065 and his Registration number as 27967. The date of starting his annual examination was on 03.03.1982. Some days before examination, the plaintiff was issued with a duly signed Admit Card indicating his Roll number as 308P065 and his Registration number as 27967. The date of starting his annual examination was on 03.03.1982. Accordingly, on that day, i.e., on 03.03.1982, the plaintiff came to the examination center at B.J.B. College, but could not find his Roll number in any seat, when he (plaintiff) did not find his Roll number in any seat, he (plaintiff) came to the defendant no.2(Principal, B.J.B., College) for making necessary arrangements in order to allow him to appear examination and after discussion between the defendant nos.1 and 2, the defendant no.1 (Clerk of the B.J.B. College) corrected his Roll Number in the Admit Card from 308P065 to 308P135 and also put his initial therein and allotted a seat to the plaintiff to appear the annual examination. Accordingly, the plaintiff appeared the annual examination indicating his corrected Roll number, i.e. 308P135 and the invigilator also signed in his all answer sheets in each date of his examination. After completion of the examination, the result of the examination for Intermediate of Commerce was published by the Utkal University (defendant no.5) on 07.06.1982, but, his result was withheld by the Utkal University (defendant no.5). For which, the plaintiff was shocked and surprised. Thereafter, he(plaintiff) approached the defendants for publication of his withheld result and came to know that, due to the correction of his Roll number in his Admit Card by the defendant no.2, his result has been withheld and unless the defendant no.2(Principal, B.J.B. college) gives an explanation to the controller of the University (defendant no.3) assigning the reasons of such correction of his roll number in the Admit Card, the university (defendant no.5) shall not publish his result. Thereafter, he(plaintiff) approached the defendant nos.1 to 4 time and again for publication his result assigning the aforesaid reasons of correction of his Roll number in his Admit Card, but, the defendant nos.1 to 4 did not pay any heed to the same. Then, ultimately, he (plaintiff) approached the Hon'ble High Court of Orissa by filing a writ petition vide O.J.C. No.3229 of 1982 for publication of his withheld result by the University directing the Utkal University (defendant no.5) for the same. Then, ultimately, he (plaintiff) approached the Hon'ble High Court of Orissa by filing a writ petition vide O.J.C. No.3229 of 1982 for publication of his withheld result by the University directing the Utkal University (defendant no.5) for the same. But, after receiving the notice of O.J.C. No.3229 of 1982, the defendant no.5(Utkal University) appeared in the O.J.C. No.3229 of 1982 and filed rejoinder indicating that, the result of the plaintiff has already been published on 12.01.1983 and he(plaintiff) has been failed. By that time, the time for supplementary examination was over. So, due to the above negligent acts of the defendants, there was delay in publication of the Intermediate of Commerce result of the plaintiff. For which, he (plaintiff) lost his academic career for one year and sustained losses in various ways being harassed unnecessarily by the defendants for his no fault. So, without getting any way, he (plaintiff) approached the civil court by filing the suit vide M.S. No.34 of 1985 against the defendants praying for passing of the decree for damages and compensation for Rs.52,200/- against the defendants making them (defendants) liable for the same jointly and severally along with the cost of the suit and other reliefs, to which, he (plaintiff) is entitled for. 6. Having been noticed from the trial court in the suit vide M.S. No.34 of 1985 filed by the plaintiff, defendant no.4 (Ex-Vice Principal of B.J.B. College) was set ex parte and did not chose the contest the suit. The defendant nos.1 and 2 filed their joint written statement denying the allegations alleged by the plaintiff in his plaint against them by taking their pleas that, the plaintiff had filled up the form in order to appear Intermediate Commerce annual examination of the year 1982 and he (plaintiff) was issued with an Admit Card by the University bearing Roll No. 308P065. The said Roll number was allotted on the basis of the 1st alphabet list submitted by the defendant no.2 to the University. But, subsequently, on the basis of the final alphabet list submitted by the defendant no.2, the Roll number of the plaintiff was changed from 308P065 to 308P135 by the University(defendant no.5). The said Roll number was allotted on the basis of the 1st alphabet list submitted by the defendant no.2 to the University. But, subsequently, on the basis of the final alphabet list submitted by the defendant no.2, the Roll number of the plaintiff was changed from 308P065 to 308P135 by the University(defendant no.5). For which, the previous allotted Roll number, i.e., 308P065 was not available in the final chart, which was pasted in the examination hall, but, after receiving the complain of the plaintiff and after making necessary verification of the roll number, the roll number of the plaintiff in his Admit Card was corrected from 308P065 to 308P135 and accordingly, the plaintiff had appeared his examination indicating his correct Roll number as 308P135 in his all answer papers. When the result of the plaintiff was withheld by the University (defendant no.5), then, a clarification was sent to defendant no.3 (Controller of the University) through defendant no.2 vide Letter No.1132 dated 17.06.1982 stating therein about the reason of correction of the Roll number of the plaintiff in his Admit Card. Thereafter, further clarification was also given by the defendant no.2 (Principal, B.J.B. College) to defendant no.3 (Controller of the University) vide Letter No.1219 (Ex.) dated 20.10.1982 explaining the matters in detail regarding the circumstances, under which, the Roll number of the plaintiff was corrected in his Admit Card on the date of starting of his examination and requested for publishing the withheld result of the plaintiff immediately. They never harassed or misbehaved to the plaintiff in any manner. So, the plaintiff has no cause of action for filing the suit against them. Therefore, the suit of the plaintiff is not maintainable against them (defendant nos.1 and 2). For which, the suit of the plaintiff is liable to be dismissed against them (defendant nos.1 and 2). The defendant nos.5 and 3 challenged the suit of the plaintiff by filing their written statement denying the allegations alleged by the plaintiff against them taking their stands admitting the issuance of Admit Card to the plaintiff indicating his Roll number as 308P065 and correction of the same at the level of the defendant no.2(Principal, B.J.B. College). For which, great deal of confusion was created at the time of publication of the result. For which, great deal of confusion was created at the time of publication of the result. Therefore, the result of the plaintiff was withheld seeking clarification about such correction from the defendant no.2(Principal, B.J.B. College), but, after receiving the clarifications about such correction from the defendant no.2, they published the result of the plaintiff immediately on 12.01.1983. So, they have done their duties properly and lawfully in publishing the withheld result of the plaintiff on 12.01.1983. For which, they (defendant nos.5 and 3) cannot and shall not be made liable for any damages or compensation. Therefore, the suit of the plaintiff is liable to be dismissed against them (defendant nos.5 and 3). 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether four numbers of issues were framed by the trial court in the suit vide M.S. No.34 of 1985 and the said issues are:- ISSUES 1. Is the suit maintainable? 2. Has the plaintiff any cause of action to bring the suit? 3. Are the defendants liable to pay compensation to the tune of Rs.52,200/- for their negligence to the plaintiff? 4. To what relief, the plaintiff is entitled? 8. In order to substantiate the aforesaid relief sought for by the plaintiff against the defendants in the suit vide M.S. No.34 of 1985, he (plaintiff) examined himself as P.W.1 and relied upon the documents vide Exts.1 to 3 on his behalf. On the contrary, in order to defeat/nullify the suit of the plaintiff, the defendants examined one witness from their side, i.e., to the defendant no.1 as D.W.1 and they (defendants) relied upon the documents vide Exts.A to D of their behalf. 9. On the contrary, in order to defeat/nullify the suit of the plaintiff, the defendants examined one witness from their side, i.e., to the defendant no.1 as D.W.1 and they (defendants) relied upon the documents vide Exts.A to D of their behalf. 9. On the basis of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiff and against the defendant nos.1, 2 and 5 and basing upon the findings and observations made in the issues by the trial court in favour of the plaintiff and against the defendant nos.1, 2 and 5, the trial court decreed the suit of the plaintiff on contest against the defendant nos.1, 2 and 5 and directed the defendant nos.1, 2 and 5 to pay Rs.52,200/- to the plaintiff as compensation jointly and severally within three months from the date of decree dated 06.05.1998 and 03.07.1998 respectively assigning the reasons that, for the negligence of the defendant nos.1, 2 and 5, the result of the Annual Intermediate Commerce examination of the plaintiff was withheld and the same was also not published even before the completion of supplementary examination of that year, for which, the plaintiff has lost his one year academic career, therefore, they (defendant nos.1, 2 and 5) are jointly and severally liable to compensate the above losses of the plaintiff. 10. On being dissatisfied with the aforesaid judgment and decree dated 06.05.1998 and 03.07.1998 respectively passed by the trial court against the defendant nos.1, 2 and 5, two separate appeals were preferred by them (defendant nos.1, 2 and 5) challenging the judgment and decree passed by the trial court in M.S. No.34 of 1985 against them. The defendant no.5 (Utkal University) preferred a 1st appeal vide M.A. No.01 of 1998 individually. The defendant nos.1 and 2 preferred a 1st appeal vide M.A. No.02 of 1998 jointly challenging the judgment and decree of the suit vide M.S. No.34 of 1985 passed against them by the trial court being the appellants against the plaintiff and by arraying him (plaintiff) as respondent no.1 and also arraying the defendant nos.3 and 4 as other respondents. Both the aforesaid appeals vide M.A. No.01 of 1998 and M.A. No.02 of 1998 preferred by defendant nos.1, 2 and 5 were heard by the 1st appellate court analogously. 11. Both the aforesaid appeals vide M.A. No.01 of 1998 and M.A. No.02 of 1998 preferred by defendant nos.1, 2 and 5 were heard by the 1st appellate court analogously. 11. As per the analogous judgment and decree passed by the 1st appellate court in M.A. No.01 of 1998 and M.A. No.02 of 1998, the 1st appellate court allowed the 1st appeal preferred by the defendant nos.1 and 2 vide M.A. No.02 of 1998, but dismissed to the 1st appeal vide M.A. No.01 of 1998 preferred by the defendant no.5(Utkal University) on contest as per its judgment and decree dated 31.01.2002 and 19.02.2002 respectively and set aside the judgment and decree passed in M.S. No.34 of 1985 against the defendant nos.1, 2 and 4 but, confirmed the judgment and decree passed by the trial court in M.S. No.34 of 1985 against the defendant no.5 and accordingly, modified to the judgment and decree dated 06.05.1998 and 03.07.1998 respectively passed by the trial court in M.S. No.34 of 1985 and directed the defendant no.5 (Utkal University) to pay a sum of Rs.52,200/- to the plaintiff as compensation within three months making the defendant no.5(Utkal University) solely liable for the same. 12. On being aggrieved with the aforesaid dismissal of the 1st appeal of the defendant no.5 vide M.A. No.01 of 1998 passed by the 1st appellate court as per its judgment and decree dated 31.10.2002 and 19.10.2002 respectively, the defendant no.5 (Utkal University) challenged the same by preferring this 2nd appeal being the appellant against the plaintiff by arraying him(plaintiff) as respondent no.1 and also arraying the defendant nos.1 to 4 as respondent nos.2, 3, 4 and 5. 13. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e.,:- '1. Whether the suit is maintainable, when there is no specific notice under Section 80(1)(c) of the C.P.C. to the Public Officer (Principal of B.J.B. College)? 2. Whether the finding of the lower appellate court that the defendants having waived their right to raise that issue in the pleading cannot agitate the issue at the appellate stage is sustainable in law? 3. Whether notice under Section 80(c) of the C.P.C. is required to be served on the Principal while conducting an examination of the University? 4. 2. Whether the finding of the lower appellate court that the defendants having waived their right to raise that issue in the pleading cannot agitate the issue at the appellate stage is sustainable in law? 3. Whether notice under Section 80(c) of the C.P.C. is required to be served on the Principal while conducting an examination of the University? 4. Whether the Principal can be treated as a Public servant or public officer while discharging the duty of Centre Superintendent in an Examination conducted by the University?' 14. I have already heard from the learned counsel for the appellant only, as none appeared from the side of the respondents including the respondent no.1(plaintiff) to participate in the hearing of the 2nd appeal. 15. As, all the aforesaid four formulated substantial questions of law are inter-linked concerning the matter relating to the non-service of notice under Section 80 of the C.P.C., 1908, for which, all the aforesaid substantial questions of law are taken up analogously for their discussions. In this 2nd appeal, the appellant is the Utkal University, who was the defendant no.5 in the suit vide M.S. No.34 of 1985 before the trial court. Neither in the pleadings nor during trial of the suit, the Utkal University (defendant no.5, appellant in this 2nd appeal), had raised any objection concerning the non-service of notice under Section 80 of the C.P.C. against any of the defendants. It has been specifically indicated in paragraph no.10 of the judgment passed by the 1st appellate court that, though, the Utkal University challenged the maintainability of the suit on the ground of non-issuance of notice under Section 80 of the C.P.C. during the stage of the 1st appeal, but, none of the defendants including Utkal University has pleaded in their written statements objecting the maintainability of the suit of the plaintiff due to want of notice under Section 80 of the C.P.C. nor any issue was framed in that regard in the suit before the trial court. For which, such objection of Utkal University for the 1st time in the 1st appeal was not accepted. 16. For which, such objection of Utkal University for the 1st time in the 1st appeal was not accepted. 16. The object of the notice under Section 80 of the C.P.C. and the consequence of non-raising of any plea during trial challenging the suit due to want of notice under Section 80 of the C.P.C. has already been clarified by the Hon'ble Courts and Apex Court in the ratio of the following decisions:- (i) AIR 1969 (S.C.)-674 : Raghunath Dash vrs. Union of India and another-C.P.C., 1908-Section 80-The object of notice contemplated by Section 80 of the C.P.C. is to give to the concerned Governments and public officers opportunity to reconsider the legal position and make amends or settle the claim, if so advised without litigation.(Para-8) (ii) 2007 (I) CJD(S.C.)-40 : State of A.P. and others vrs. M/s. Pioneer Builders, A.P.-C.P.C., 1908-Section 80- The object of notice is to give opportunity to reconsider whether the claim made could be accepted or not for the advancement of justice and the securing of public good by avoidance of unnecessary litigation. (iii) 2012(9) Law Digital.in-450(Karnataka) : Karishma Anand vrs. Union of India and another-C.P.C., 1908- Section 80-Object-The object of issuance of notice under Section 80, C.P.C. is to provide an opportunity to the Government to consider the legal position to settle the claim without compelling parties to go for litigation and also to afford an opportunity to the Officer of the Government to scrutinize and settle the matter, if possible with a minimum action, so that unnecessary litigation is avoided. (iv) 25(1959) CLT-335: Basudeb Biswal and others vrs. Padmanav Choudhury and others-C.P.C., 1908-Section 80-Waiver of the right to notice-Plea as to want of notice must be deemed to have been waived, when such plea is taken for the first time in the appeal. In that case, the appellate court is not entitled to dismiss the suit on the ground of absence of notice under Section 80, C.P.C. (v) 2007(2) CCC-323(M.P.) : Laxmichand (dead) through L.Rs. Kanta Bai and Ors vrs. Murty Shri Laxminarayan & Ors.-C.P.C., 1908-No objection raised about maintainability of suit for want of statutory notice- If no such objection raised at the trial stage, same cannot be raised at appellate stage. (vi) AIR 1971 (Orissa)-227 : State of Orissa and another vrs. Kanta Bai and Ors vrs. Murty Shri Laxminarayan & Ors.-C.P.C., 1908-No objection raised about maintainability of suit for want of statutory notice- If no such objection raised at the trial stage, same cannot be raised at appellate stage. (vi) AIR 1971 (Orissa)-227 : State of Orissa and another vrs. Bamadeb Panigrahi and another-C.P.C., 1908- Section 80-Plea as to absence of notice under Section 80 though raised in written statement cannot be permitted to be argued for the first time in second appeal if no issue for the same in the courts below-Plea will be deemed to have been waived. 17. Here in this suit/appeal at hand, none of the defendants in the suit before the trial court including Utkal University (appellant in this 2nd appeal) had raised any objection in their respective pleadings(written statements) challenging the maintainability of the suit of the plaintiff due to want of notice under Section 80 of the C.P.C. against any of the defendants before filing of the suit. For which, in view of the propositions of law enunciated in the ratio of the aforesaid decisions, all the defendants including defendant no.5 (Utkal University) have waived their right to challenge the maintainability of the suit of the plaintiff on the ground of non-service of notice under Section 80 of the C.P.C., 1908. Because, they(defendants) including Utkal University had contested the suit before the trial court waving (forgiving) their such right. For which, the appellant (defendant no.5, Utkal University) is precluded/estopped under law to challenge the judgment and decree passed by the trial court and 1st appellate court on the ground of non-service of notice under Section 80 of the C.P.C. upon the Principal of B.J.B. College, Bhubaneswar (defendant no.2). That apart, though the Principal, B.J.B. College, Bhubaneswar (defendant no.2) was contesting the suit of the plaintiff vide M.S. No.34 of 1985 himself by filing his written statement independently and had also challenged the judgment and decree passed by the trial court against him by preferring a separate appeal vide M.A. No.02 of 1998, but, neither before the trial court nor before the 1st appellate court, the said defendant no.2 (Principal, B.J.B. College, Bhubaneswar) had raised any objection challenging the maintainability of the suit on the ground of non-service of notice under Section 80 of the C.P.C. against him. Accordingly, the defendant no.2 himself had waived his right to challenge the suit of the plaintiff on the ground of non-service of notice under Section 80 of the C.P.C., 1908 on him. 18. When, the defendant no.2 himself has not challenged the suit of the plaintiff on the ground of non-service of notice under Section 80 of the C.P.C., for whose benefit, the issuance of the said notice was required and when the judgment of the trial court against the defendant no.5 has already been confirmed by the 1st appellate court and when no issue was framed by the trial court in the suit concerning non-maintainability of the suit due to want of notice under Section 80 of the C.P.C., then at this juncture, by applying the principles of law enunciated in the ratio of the decisions referred to (supra) in paragraph no.16 of this judgment, it is held that, the defendant no.5 (against whom, the decree of the trial court has already been confirmed), is precluded / estopped under law to challenge the maintainability of the suit on the ground of non-service of notice under Section 80 of the C.P.C. on the defendant no.2, as the defendant no.5 including the defendant no.2 have waived their such right. Therefore, it cannot at all be held that, suit of the plaintiff vide M.S. No.34 of 1985 was not maintainable under law due to want of notice under Section 80 of the C.P.C. Therefore, the above formulated substantial questions of law are answered by holding that, the suit of the plaintiff was maintainable under law against the defendants. 19. Therefore, it cannot at all be held that, suit of the plaintiff vide M.S. No.34 of 1985 was not maintainable under law due to want of notice under Section 80 of the C.P.C. Therefore, the above formulated substantial questions of law are answered by holding that, the suit of the plaintiff was maintainable under law against the defendants. 19. When, as per discussions and observations made above, it is held that, the suit of the plaintiff against the defendants is maintainable under law and when the plaintiff had appeared Intermediate Annual Commerce Examination being allowed by the Utkal University(defendant no.5) for the same indicating his incorrect roll number as 308P065 in his Admit Card and when, for such reason, the result of the plaintiff was withheld by the defendant no.5 and when his result was published in late on 21.01.1983 by the defendant no.5 after the approach of the plaintiff to the Hon'ble Courts and when by the time of the publication of the result of the plaintiff, the time for supplementary examination of that year was over and when for the delay in publication of the result of the plaintiff by the defendant no.5 (Utkal University), he (plaintiff) lost his one year academic career and suffered harassment's and losses in many ways, then at this juncture, the compensation awarded by the trial court against the defendant no.5 (Utkal University) in M.S. No.34 of 1985 and the confirmation of the same by the 1st appellate court in the 1st appeal vide M.A. No.01 of 1998 cannot be held as erroneous. For which, the question of interfering with the same through this 2nd appeal filed by the appellant (defendant no.5) does not arise. 20. Therefore, there is no merit in the 2nd appeal of the appellant (defendant no.5). The same must fail. 21. In result, this 2nd appeal filed by the appellant (defendant no.5) is dismissed on merit, but, without cost. 22. The judgment and decree dated 06.05.1998 and 03.07.1998 respectively passed by the trial court in M.S. No.34 of 1985 against the defendant no.5 (Utkal University) and the confirmation of the same by the 1st appellate court in in M.A. 01 of 1998 are confirmed.