Bongu Sarojanamma Vs. Nalla Venkatarama Siva Prasadarao and anr. - 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]. - since the revision petitioner failed to file statements within the time granted, she was set ex parte and the case was posted for further hearing. 1 and 2 clearly establishes that the revision petitioner was not at palakonda at anytime, the court below has rightly dismissed the petition and so the order under revision needs no interference.orderc.y. somayajulu, j.1. on a reference made by the second respondent (land acquisition officer) under section 30 of the land acquisition act, the reference court granted time to the revision petitioner and first respondent to file their statements. since the revision petitioner failed to file statements within the time granted, she was set ex parte and the case was posted for further hearing. thereafter, she filed a petition under section 5 of the limitation act to condone delay of 187 days in filing the petition to set aside the ex parte order against her, which was dismissed by the order under revision. hence this revision.2. the contention of the learned counsel for the revision petitioner is that since the revision petitioner was undergoing treatment in a hospital at a different place, as disclosed from ex. a1, it is clear that the revision petitioner has established sufficient cause for her non-appearance earlier and so the order under revision is unsustainable. the contention of the learned counsel for the first respondent is that the evidence of pw1 cannot be accepted or believed because she herself admitted that she had no knowledge whether she joined in a government hospital or a private hospital and cannot say in which street of palakonda that hospital is situate and that she does not know the head of the hospital, it is clear that ex. a1 medical certificate is brought into existence for the purpose of this petition and since the evidence of r.ws. 1 and 2 clearly establishes that the revision petitioner was not at palakonda at anytime, the court below has rightly dismissed the petition and so the order under revision needs no interference.3. the fact that the o.p. is still pending is not denied or disputed. since the case is a reference under section 30 of the land acquisition act, the provisions of cpc apply to those proceedings. so if statements of the claimants are not filed within the time granted, they would naturally be set ex parte under rule 7 of order 9 cpc.4. in arjun singh v. mohindra kumar and ors. : [1964]5scr946 , the apex court held:in its essence order under order 9 rule 7 is directed to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation. it does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit. besides, it is obvious that the proceeding is of a very summary nature and this is evident from the fact that as contrasted with order ix rule 7, 'refusing to set back the clock'. it is, therefore, manifest that the code proceeds upon the view not imparting any finality to the determination of any issues of fact on which the court's action under that provision is based.so the revision petitioner filing a petition under section 5 of the limitation act is wholly unnecessary and unwarranted because she can by showing sufficient cause for not filing the statement at an earlier stage make a request to the court to receive her statement and thereby put the clock back.5. since quoting of a wrong provision per se is not a ground for dismissal of a petition, if it is maintainable under some other provision of law, the petition filed by the revision petitioner can be taken to have been filed under order 9 rule 7 cpc though in fact it is filed under section 5 of the limitation act, 1963.6. since the case of the revision petitioner is that she could not file the statement within the time granted by the court because of her sickness, the court below ought to have taken that plea into consideration and should have put the clock back and permitted the revision petitioner to file her statement. if the court below felt that the first respondent is inconvenienced by the conduct of the revision petitioner not filing the statement in time, it could have awarded costs to the first respondent to compensate that loss.7. keeping in view the facts and circumstances of the case, the petition is allowed and the revision petitioner is permitted to file her statement within three weeks from today subject to her paying rs.500/- as costs to the first respondent within that period of three weeks. in default of payment of costs of rs.500/-to the first respondent, or in default of filing of the statement within three weeks from today, this revision petition stands dismissed with costs. petition is ordered accordingly.

Judgment:
ORDER

C.Y. Somayajulu, J.

1. On a reference made by the second respondent (Land Acquisition Officer) under Section 30 of the Land Acquisition Act, the reference Court granted time to the revision petitioner and first respondent to file their statements. Since the revision petitioner failed to file statements within the time granted, she was set ex parte and the case was posted for further hearing. Thereafter, she filed a petition under Section 5 of the Limitation Act to condone delay of 187 days in filing the petition to set aside the ex parte order against her, which was dismissed by the order under revision. Hence this revision.

2. The contention of the learned Counsel for the revision petitioner is that since the revision petitioner was undergoing treatment in a hospital at a different place, as disclosed from Ex. A1, it is clear that the revision petitioner has established sufficient cause for her non-appearance earlier and so the order under revision is unsustainable. The contention of the learned Counsel for the first respondent is that the evidence of PW1 cannot be accepted or believed because she herself admitted that she had no knowledge whether she joined in a Government Hospital or a private hospital and cannot say in which street of Palakonda that hospital is situate and that she does not know the head of the hospital, it is clear that Ex. A1 medical certificate is brought into existence for the purpose of this petition and since the evidence of R.Ws. 1 and 2 clearly establishes that the revision petitioner was not at Palakonda at anytime, the Court below has rightly dismissed the petition and so the order under revision needs no interference.

3. The fact that the O.P. is still pending is not denied or disputed. Since the case is a reference under Section 30 of the Land Acquisition Act, the provisions of CPC apply to those proceedings. So if statements of the claimants are not filed within the time granted, they would naturally be set ex parte under Rule 7 of Order 9 CPC.

4. In Arjun Singh v. Mohindra Kumar and Ors. : [1964]5SCR946 , the apex Court held:

In its essence order under Order 9 Rule 7 is directed to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit. Besides, it is obvious that the proceeding is of a very summary nature and this is evident from the fact that as contrasted with Order IX Rule 7, 'refusing to set back the Clock'. It is, therefore, manifest that the Code proceeds upon the view not imparting any finality to the determination of any issues of fact on which the Court's action under that provision is based.

So the revision petitioner filing a petition under Section 5 of the Limitation Act is wholly unnecessary and unwarranted because she can by showing sufficient cause for not filing the statement at an earlier stage make a request to the Court to receive her statement and thereby put the clock back.

5. Since quoting of a wrong provision per se is not a ground for dismissal of a petition, if it is maintainable under some other provision of law, the petition filed by the revision petitioner can be taken to have been filed under Order 9 Rule 7 CPC though in fact it is filed under Section 5 of the Limitation Act, 1963.

6. Since the case of the revision petitioner is that she could not file the statement within the time granted by the Court because of her sickness, the Court below ought to have taken that plea into consideration and should have put the clock back and permitted the revision petitioner to file her statement. If the Court below felt that the first respondent is inconvenienced by the conduct of the revision petitioner not filing the statement in time, it could have awarded costs to the first respondent to compensate that loss.

7. Keeping in view the facts and circumstances of the case, the petition is allowed and the revision petitioner is permitted to file her statement within three weeks from today subject to her paying Rs.500/- as costs to the first respondent within that period of three weeks. In default of payment of costs of Rs.500/-to the first respondent, or in default of filing of the statement within three weeks from today, this revision petition stands dismissed with costs. Petition is ordered accordingly.