Mustyala Rajeshwari and ors. Vs. Ramidi Rajanna - Court Judgment

Excerpt:
civil - rebuttal evidence - order 17 rule 1 of code of civil procedure, 1908 and code of civil procedure (amendment) act, 1999 - civil revision petition against permission of adducing rebuttal evidence after closure of defendant's evidence - court inadvertently posted matter for argument even after granting permission to adduce additional evidence - party should not suffer due to any bona fide mistake committed by court itself - held, impugned order does not suffer from any illegality having regard to facts of case. - 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]. orderp.s. narayana, j.1. respondents in i.a. no. 460 of 2003 in o.s. no. 23 of 1995 on the file of the senior civil judge, peddapalli, had preferred the present civil revision petition, having been aggrieved by the impugned order reopening of the case for further evidence on an application moved by the respondent herein plaintiff in the suit. the learned senior civil judge, peddapalli on the main ground that the plaintiff was permitted to adduce rebuttal evidence after closure of the evidence of the defendants had thought it fit to give an opportunity and ultimately had allowed the said application without costs.2. sri subrahmanyam, learned counsel representing sri ashok raj, learned counsel appearing for he petitioners had drawn the attention of this court to the proviso to order xvii, rule 1 of the code of civil procedure (for brevity, the code) and had maintained that inasmuch as it is clear that several adjournments had been granted, the question of reopening the matter at a belated stage is impermissible in law on the mere ground that the plaintiff was permitted to adduce rebuttal evidence. the learned counsel would maintain that even if such permission is there, the same should have been exercised within the permissible time available to such a party. the learned counsel also contended that if any other interpretation is given, it would amount to defeating the very provision introduced by way of amending act, act 46 of 1999. as can be seen from the impugned order, it is no doubt true that the learned senior civil judge at peddapalli had exercised the discretion and in view of the fact that the plaintiff was permitted to adduce rebuttal evidence after closure of the defendants' evidence and by inadvertence, the court instead of giving the opportunity to the plaintiff for adducing further rebuttal evidence straightway posted the matter for arguments and in such circumstances thought it fit to allow the application. order xvii of the code deals with adjournments. sub-section (1) of rule 1 of order xvii reads as hereunder ;'the court may grant time and adjourn hearing :-- the court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing.provided that no such adjournment shall be granted more than 3 times to a party during the hearing of the suit.' 3. it is stated in the affidavit filed in support of the application that a memo was filed by the respondents reserving his right to lead rebuttal evidence and the court permitted him to lead the rebuttal evidence after closure of the evidence on defendants' side. but, however, the court without affording such an opportunity to lead further evidence had straightway posted the matter for arguments. it was further stated that the scribe of ex. a1 has to be examined and in such circumstances, an application to reopen the suit for the purpose of leading further evidence had been thought of. specific stand was taken into the counter-affidavit filed by the revision petitioners that inasmuch as the plaintiff closed the evidence on 9-1-2003 and posted the matter for defendants' evidence on 24-3-2003 and the defendants' side was closed and the matter was posted to 3-4-2003 and inasmuch as several adjournments had been granted when the matter was posted finally on 25-6-2003 for arguments, there is no question of filing an application to reopen the matter. in substance, the stand taken by the revision petitioners-respondents in the said application is that in view of the specific provisions relating to granting of adjournments specified in the proviso under order xvii, rule 1 of the code, the learned judge should not have allowed the application on the ground that the plaintiff had reserved the right to adduce rebuttal evidence. it is no doubt true that the proviso specifically says that no such adjournments shall be granted more than three times to a party during hearing of the suit. though, the docket proceedings are not available before this court, from the impugned order, it is clear that several adjournments had been granted. it is also true that the respondent who had reserved the right to let in rebuttal evidence was not diligent in moving the application at the appropriate time. however, the fact remains that a memo was filed and the learned judge also had recorded that the respondent-plaintiff was permitted to let in rebuttal evidence and by inadvertence the matter was straightaway posted for arguments without affording such opportunity to respondent-plaintiff. as can be seen from the peculiar facts, the learned judge had recorded a specific finding that having permitted and having granted liberty to adduce rebuttal evidence at the appropriate stage, the court by mistake had posted the matter straightway for arguments. it is fundamental principle that the party should not suffer due to any bona fide mistake committed by the court itself. when that being so, the objection taken that such discretion cannot be exercised by the court in view of the bar imposed by the proviso of rule 1 of order xvii of the code, in my considered opinion, cannot be sustained. in fact, the learned senior civil judge. peddapalli had recorded cogent and convincing reasons while exercising the discretion and hence, i am of the considered opinion that the impugned order does not suffer from any illegality in the peculiar facts of the case.4. accordingly, the civil revision petition shall stand dismissed. no order as to costs.

Judgment:
ORDER

P.S. Narayana, J.

1. Respondents in I.A. No. 460 of 2003 in O.S. No. 23 of 1995 on the file of the Senior Civil Judge, Peddapalli, had preferred the present Civil Revision Petition, having been aggrieved by the impugned order reopening of the case for further evidence on an application moved by the respondent herein plaintiff in the suit. The learned Senior Civil Judge, Peddapalli on the main ground that the plaintiff was permitted to adduce rebuttal evidence after closure of the evidence of the defendants had thought it fit to give an opportunity and ultimately had allowed the said application without costs.

2. Sri Subrahmanyam, learned counsel representing Sri Ashok Raj, learned counsel appearing for he petitioners had drawn the attention of this Court to the proviso to Order XVII, Rule 1 of the Code of Civil Procedure (for brevity, the Code) and had maintained that inasmuch as it is clear that several adjournments had been granted, the question of reopening the matter at a belated stage is impermissible in law on the mere ground that the plaintiff was permitted to adduce rebuttal evidence. The learned counsel would maintain that even if such permission is there, the same should have been exercised within the permissible time available to such a party. The learned Counsel also contended that if any other interpretation is given, it would amount to defeating the very provision introduced by way of Amending Act, Act 46 of 1999. As can be seen from the impugned order, it is no doubt true that the learned Senior Civil Judge at Peddapalli had exercised the discretion and in view of the fact that the plaintiff was permitted to adduce rebuttal evidence after closure of the defendants' evidence and by inadvertence, the Court instead of giving the opportunity to the plaintiff for adducing further rebuttal evidence straightway posted the matter for arguments and in such circumstances thought it fit to allow the application. Order XVII of the Code deals with adjournments. Sub-section (1) of Rule 1 of Order XVII reads as hereunder ;

'The Court may grant time and adjourn hearing :--

The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing.

Provided that no such adjournment shall be granted more than 3 times to a party during the hearing of the suit.'

3. It is stated in the affidavit filed in support of the application that a memo was filed by the respondents reserving his right to lead rebuttal evidence and the Court permitted him to lead the rebuttal evidence after closure of the evidence on defendants' side. But, however, the Court without affording such an opportunity to lead further evidence had straightway posted the matter for arguments. It was further stated that the scribe of Ex. A1 has to be examined and in such circumstances, an application to reopen the suit for the purpose of leading further evidence had been thought of. Specific stand was taken into the counter-affidavit filed by the revision petitioners that inasmuch as the plaintiff closed the evidence on 9-1-2003 and posted the matter for defendants' evidence on 24-3-2003 and the defendants' side was closed and the matter was posted to 3-4-2003 and inasmuch as several adjournments had been granted when the matter was posted finally on 25-6-2003 for arguments, there is no question of filing an application to reopen the matter. In substance, the stand taken by the revision petitioners-respondents in the said application is that in view of the specific provisions relating to granting of adjournments specified in the proviso under Order XVII, Rule 1 of the Code, the learned Judge should not have allowed the application on the ground that the plaintiff had reserved the right to adduce rebuttal evidence. It is no doubt true that the proviso specifically says that no such adjournments shall be granted more than three times to a party during hearing of the suit. Though, the docket proceedings are not available before this Court, from the impugned order, it is clear that several adjournments had been granted. It is also true that the respondent who had reserved the right to let in rebuttal evidence was not diligent in moving the application at the appropriate time. However, the fact remains that a memo was filed and the learned Judge also had recorded that the respondent-plaintiff was permitted to let in rebuttal evidence and by inadvertence the matter was straightaway posted for arguments without affording such opportunity to respondent-plaintiff. As can be seen from the peculiar facts, the learned Judge had recorded a specific finding that having permitted and having granted liberty to adduce rebuttal evidence at the appropriate stage, the Court by mistake had posted the matter straightway for arguments. It is fundamental principle that the party should not suffer due to any bona fide mistake committed by the Court itself. When that being so, the objection taken that such discretion cannot be exercised by the Court in view of the bar imposed by the proviso of Rule 1 of Order XVII of the Code, in my considered opinion, cannot be sustained. In fact, the learned Senior Civil Judge. Peddapalli had recorded cogent and convincing reasons while exercising the discretion and hence, I am of the considered opinion that the impugned order does not suffer from any illegality in the peculiar facts of the case.

4. Accordingly, the Civil Revision Petition shall stand dismissed. No order as to costs.