Katragadda Satyanarayana and ors. Vs. Palanchu Babu Rao - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 1. this appeal is filed by the unsuccessful plaintiffs in o. 2 and 3, if carefully examined, these witnesses had not clearly deposed relating to the alleged discharge. the counsel also would maintain that when the sale deed was executed by all the plaintiffs, to hold that the suit is bad for misjoinder of parties also cannot be sustained. 2 is a good-old man and respectable person who had narrated all the aspects relating to the discharge made and in the light of clear evidence of d. the counsel would conclude that in any view of the matter, inasmuch as the findings recorded by the trial court being well-considered findings, the appeal is liable to be dismissed. but he failed to do so. 1 got endorsed the payment of rs. (1) whether the suit is bad for misjoinder of necessary parties? a-1 would clearly go to show that an amount of rs. hence, it cannot be said that the suit is bad for misjoinder of parties i. he is a good-old gentleman who is not keeping good health and who had been residing at visakhapatnam and prior thereto he had been residing at komaravolu village, came to the court and gave evidence. 1, well supported by d.p.s. narayana, j.1. this appeal is filed by the unsuccessful plaintiffs in o.s. no. 48/86 on the file of subordinate judge, gudiwada. defendant in the said suit is respondent. appellants-plaintiffs instituted the said suit praying for the relief of recovery of rs. 35,062-50 ps., towards unpaid purchase money, for subsequent interest and for costs with a charge over the plaint schedule property.2. on the strength of the respective pleadings of the parties, the learned subordinate judge having settled the issues, recorded the evidence of p.w. 1 - the 1st plaintiff, d.w. 1-the defendant, d.w. 2 and d.w. 3 and marked ex. a-1 to ex. a-8 and ex. b-1 and came to the conclusion that the plaintiffs are not entitled to the reliefs prayed for and ultimately dismissed the suit but under the circumstances without costs. aggrieved by the same, the present appeal is preferred.3. sri mallikarjuna rao kondasani, the learned counsel, had taken this court through the evidence of p.w. 1, d.w. 1, d.w. 2 and d.w. 3 and also the documentary evidence -ex. a-1 to ex. a-8 and ex. b-1 and would maintain that it is highly improbable that the defendant - d.w. 1 would not have taken away the promissory note having paid the total amount and the evidence of d. ws. 2 and 3 cannot be believed since they are interested witnesses and inasmuch as the plea of discharge of the remaining unpaid money had not been established by acceptable proof, the appellant-plaintiffs are entitled to recover the said unpaid money in the light of section 55(4)(b) of the transfer of property act, 1882. the counsel also pointed out that the evidence of d.ws. 2 and 3, if carefully examined, these witnesses had not clearly deposed relating to the alleged discharge. the counsel also would maintain that even otherwise the findings recorded by the learned judge that the suit should have been instituted on the lost promissory note and the remedy by way of the present suit cannot be maintained, also cannot be sustained. the counsel also would maintain that when the sale deed was executed by all the plaintiffs, to hold that the suit is bad for misjoinder of parties also cannot be sustained.4. on the contrary, the learned counsel representing respondent-defendant would maintain that d.w. 2 is a good-old man and respectable person who had narrated all the aspects relating to the discharge made and in the light of clear evidence of d.w. 1, supported by d.ws. 2 and 3, inasmuch as discharge had been proved, the other aspects need no serious consideration. even otherwise, except the evidence of p.w. 1, there is no other acceptable evidence available on record. the counsel also would submit that it may be that by virtue of section 55(4)(b) of the transfer of property act, 1882, the plaintiffs may be entitled to a charge over the property for recovery of the unpaid money, but when the discharge pleaded had been established and when positive findings had been recorded by the trial court, the said findings normally not to be disturbed unless or otherwise this court arrives at a conclusion that the evidence of d.w.2 to be discarded for reasons to be recorded. the counsel would conclude that in any view of the matter, inasmuch as the findings recorded by the trial court being well-considered findings, the appeal is liable to be dismissed.5. heard the counsel on record and perused the oral and documentary evidence available on record and the findings recorded by the trial court.6. in the light of the rival contentions advanced before this court, the following points arise for consideration in this appeal:(1) whether the plea of discharge raised by respondent-defendant and the findings recorded by the trial court in relation thereto, to be confirmed or to be disturbed in the facts and circumstances of the case?(2) whether the findings recorded relating to misjoinder of necessary parties and the maintainability of the suit to be confirmed or to be disturbed in the facts and circumstances of the case?(3) if so, to what relief the parties would be entitled to?7. point nos. 1 and 2: the parties hereinafter, for the purpose of convenience, would be referred to as plaintiffs and defendant, as shown in o.s. no. 48/86.8. the plaintiffs instituted the suit for recovery of rs. 35,062-50 ps., towards the unpaid purchase money, for subsequent interest and costs, with a charge over the plaint schedule property. the plaintiffs pleaded in the plaint as hereunder:the plaintiffs 2 and 3 are the sons of the first plaintiff. they are the owners of the plaint schedule house site and the terraced house therein. the defendant purchased the plaint schedule property under a sale deed dated 15-11-1984 for a consideration of rs. 39,000/- and ever since the defendant has been in possession and enjoyment of the same. the defendant paid only a sum of rs. 9,000/- out of rs. 39,000/-. the defendant agreed to repay the balance of rs. 30,000/- with interest at 18% p.a. the defendant executed a promissory note in favour of the plaintiff no. 1 towards the unpaid money of rs. 30,000/- agreeing to repay the same with interest at 18% p.a. the execution of the promissory note is only a counter part of the recitals of the registered sale deed. thus, the statutory charge under section 55(4)(b) of the transfer of property act is intact. thus the plaintiffs have got a charge on the plaint schedule property for the amount of rs. 30,000/-. the defendant has not chosen to pay the amount. therefore, on 26-8-1985, the first plaintiff got issued registered notice. the defendant received the registered notice but did not send any reply to the advocate of the first plaintiff, but sent a reply notice to the first plaintiffstating that he is prepared to pay the principal sum of rs. 30,000/- with interest at 12% p.a. only. but he failed to do so. therefore, the plaintiff once again got issued another registered notice on 8-10-1985 and demanded the defendant to send the amount by a bank draft if he is not willing to approach the 1st plaintiff personally and pay the amount. the defendant received the said notice but did not give any reply. the defendant also got issued another notice on 30-12-1985 to which the plaintiff got issued a reply notice with false averments. the plaintiff further submits that by mistake the promissory note was given to the washer man and the washer man washed it and reduced the same to mass of pulp. this news spread out in the village and thereafter the defendant and his advisors satyanarayana and pothuraju have woven out a false story of payment of amount and endorsement on the back of the promissory note.the defendant filed the written statement with the following averments:the plaintiffs 2 and 3 have absolutely no interest in the amount covered by the unpaid purchase money for which the pronote was executed admittedly in favour of the 1st plaintiff. plaintiffs 2 and 3 are not entitled to claim any relief against the defendant. they are unnecessarily added as parties to this suit and the suit is therefore barred by misjoinder of necessary parties and therefore is liable to be dismissed. the promissee under the suit pronote are not all the vendors. the promissee under the suit pronote who is the 1st plaintiff is one of the three vendors under the sale deed. the balance of the sale consideration if any under the sale deed dated 15-11-1984 has become merged in the pronote on the same date executed by the defendant in favour of the 1sl plaintiff. hence the pronote alone become enforceable under law. the plaintiffs did not file the suit on the basis of the pronote. they are not entitled to file the suit on the strength of the registered extract of the sale deed. therefore, the suit as framed and filed is not tenable in law and the plaintiffs are not entitled for the relief mentioned in the plaint. the first plaintiff has to file the suit if any under order vii rule 16 c.p.c. as if the suit is founded upon a negotiable instrument. hence, the present suit not maintainable under law. there is no subsisting debt under the sale deed. the debt if any is evidenced by the pronote and the 1st plaintiff has to prove that the pronote was lost and to avoid that contingency the plaintiffs got this suit filed on the basis of the registration extract of the sale deed. the defendant approached the 1st plaintiff on 18-11-1985 through mediators singavarapu satyanarayana and veeravarapu pothuraju and informed him that he is prepared to pay the amount of rs. 30,000/- with interest at 12% p.a., that he actually brought the money and offered to pay the same to the 1st plaintiff. the 1st plaintiff agreed to receive the said amount and this defendant paid rs. 33,776/- comprising the principal amount of rs. 30,000/- and interest of rs. 3,776/- at 12 1/2% p.a., from 15-11-1984 to 18-11-1985. the 1st plaintiff received the said amount but refused to endorse full satisfaction of the debt on the pronote and stated that the m.a.r. do not apply for debts of this nature. but this defendant had to submit himself to the plaintiff no. 1 as he already paid away the amount. he further contended that instead of getting full satisfaction endorsement on the pronote, the plaintiff no. 1 got endorsed the payment of rs. 33,776/- only. the said endorsement on the back of the pronote was written by s. satyanarayana and attested by v. pothuraju. therefore, the 1st plaintiff want only suppressed the said pronote and created a story as if it was spoiled and defaced and filed this suit.9. on the strength of these pleadings, the following issues were settled by the trial court:(1) whether the suit is bad for misjoinder of necessary parties?(2) whether the suit as framed and tiled is not maintainable?(3) whether the discharge pleaded by the defendant is true?(4) to what relief?10. in support of the contentions of the plaintiffs, the 1st plaintiff examined himself as p.w. 1 and ex. a-1 to ex. a-8 were marked. ex. a-1 is the registration extract of the sale deed dated 15-11-1984 executed by the plaintiffs in favour of the defendant; ex. a-2 to ex. a-7 are the registered notices, reply registered notices and postal acknowledgment; and ex. a-8 is the death extract of kakarla hanumayya. on behalf of the defendant, he had examined himself as d.w. 1 and d.ws. 2 and 3 also were examined and ex.b-1 the photostat copy of the judgment in a.s. no. 7/86 on the file of sub-court, gudiwada had been marked. as can be seen from the evidence available on record, the fact that the property was sold by p.w. 1 and also plaintiffs 2 and 3 to d.w. 1 is not in serious controversy. the recitals of ex. a-1 would clearly go to show that an amount of rs. 9,000/- alone had been paid and for the rest of the amount, a promissory note was executed. certain submissions were made relating to the maintainability of the suit. no doubt, findings had been recorded that in view of the fact that a promissory note was executed in favour of the 1st plaintiff even if it is to be taken that the promissory note was lost for any reason, the suit should have been instituted on the strength of lost promissory note. it is pertinent to note that all the 3 plaintiffs executed the sale deed, the original of ex. a-1. hence, in the event of some unpaid money to be left over, all the plaintiffs would be interested in maintaining the suit. hence, the plaintiffs instituting the suit in the light of the section 55 of the transfer of property act, 1882, in view of the statutory lien available to the plaintiffs cannot be found fault. hence, it cannot be said that the suit is bad for misjoinder of parties i.e., plaintiffs 2 and 3. it is made clear that despite the fact that a promissory note was executed if the unpaid money was not paid, a suit of this nature can be maintained, for the recovery of such unpaid money, further praying for the creation of charge over the property. as far as this aspect is concerned, the provisions of section 55 of the transfer of property act are clear. the only question left over is that in the light of the evidence of p.w. 1, d.w. 1, d.w. 2 and d.w. 3, whether the discharge pleaded by respondent-defendant and the findings recorded by the trial court in this regard to be believed and whether those findings are to be confirmed or to be disturbed in the facts and circumstances of the case. the evidence of p.w. 1, no doubt, is clear and categorical. it is no doubt true that there had been some exchange of notices and after sometime it appears that because of some understanding and payment of necessary interest, d.w. 1 along with d.ws. 2 and 3 having approached p.w. 1 had settled the amount and an endorsement also was made on the promissory note and for certain reasons explained, the same was not returned and it was not taken back by d.w. 1 and taking advantage of the same, though the total amount had been discharged, again the suit had been thought of. the specific stand taken by p.w. 1 is that he had lost the promissory note and that was known to everyone in the village and taking advantage of the same, this plea of discharge was put forth, and d.ws. 2 and 3 are interested in d.w. 1 and hence the said evidence cannot be believed.10.1 on a careful scrutiny of the evidence of p.w. 1, d.ws. 1, 2 and 3, this court is of the considered opinion the evidence of d.ws. 2 and d.w. 3 is clear, categorical and convincing. apart from the evidence of d.w. 1, the evidence of d.w. 2 is available on record who had categorically deposed about the calculations and the receipt of the amount and under what circumstances the plaintiff did not return the promissory note and the reasons therefor and the endorsement made and further the attestation made by d.w. 2. in cross-examination certain admissions were elicited and even if the evidence of d.w. 2 to be taken as interested testimony, the evidence of d.w. 3 is also available on record, who had deposed in detail all the particulars. it is pertinent to note that this witness is of about 75 years of age at the relevant point of time. he had attested both the sale deed and also the promissory note and he had also given all the details and particulars relating to the sale consideration, the amount paid and the remaining amount relating to which the promissory note was executed and how subsequent thereto, at the time of discharge calculations were made and d.w.1 paying rs. 33,776/- to p.w. 1 and the denomination in which he had paid and all other further details. this witness was cross-examined and nothing serious had been elicited. it is pertinent to note that even at the time of purchase of the plaint schedule property by d.w. 1 from p.w. 1, this witness acted as mediator. he is a good-old gentleman who is not keeping good health and who had been residing at visakhapatnam and prior thereto he had been residing at komaravolu village, came to the court and gave evidence. this convincing evidence of d.w.3 cannot be discarded. in the light of the same, the explanation given by p.w.1 on the ground that the promissory note was lost and that is the reason why, the plaintiffs are entitled to institute this suit for the recovery of the unpaid money, cannot be sustained for the reason that subsequent thereto, after the exchange of notices, it appears there was some understanding and d.w. 1 along with d.ws. 2 and 3 approached p.w.1, paid the amount and thus had discharged the liability relating to the unpaid money. in the light of the same, the findings recorded by the trial court, as far as, the discharge is concerned, need no disturbance at the hands of this court in the light of the clear evidence of d.w. 1, well supported by d.w. 2 and in particular the evidence of d.w. 3. in view of the same, the findings recorded by the trial court on the maintainability of the suit and also on the plea of non-joinder of parties though not sustainable as observed supra, the findings recorded by the trial court relating to the payment and discharging the debt of unpaid money to be confirmed and accordingly, the same are hereby confirmed.11. point no. 3: in the light of the findings recorded above, the appeal being devoid of merit, the same shall stand dismissed. however, in view of the peculiar facts and circumstances, the parties to bear their own costs.