Kodidasu Venkataramana Murthy and ors. Vs. Bethapu Gangaraju and ors. - 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]. - he submits that the lower appellate court had gone on hyper technicalities and had virtually defeated the benefit of the decree passed almost a decade ago. it clearly emerged that the claim of the first respondent was without any basis.l. narasimha reddy, j.1. this cmsa presents one more illustration, as to what amount of hardship, the plaintiff, in a suit can be made to undergo, after the suit is decreed. the facts of the case speak for themselves.2. the appellants filed os no. 105 of 1985, in the court of the principal junior civil judge, parvathipuram, for the relief of eviction of the second respondent, and recovery of mesne profits. it was pleaded that the second respondent is their tenant, and that he continued in possession of the property, even after termination of the lease. the second respondent contested the suit, and denied the existence of relationship of lessor and lessee. the suit was partly decreed by the trial court, through judgment, dated 20-12-1989. the relief of recovery of possession was granted, but the prayer for mense profits was rejected. the first respondent filed a.s. no. 3 of 1990 in the court of the senior civil judge, parvathipuram, aggrieved by the decree, in os no. 105 of 1985. the appellants, in turn, filed cross-objections, insofar as, the trial court denied the relief of mense profts. through its judgment, dated 15-3-1994, the lower appellate court dismissed the appeal, and allowed the cross-objections. the same became final.3. the appellants filed e.p. no. 3 of 1993, under order xxi, rule 35 cpc for delibery of possession of them. the executing court issued a warrant of delivery of possession. on the ground that the first respondent herein obstructed the amin of the court did not deliver possession and reported the matter to the court. that necessitated filing of e.a. no. 59 of 1985, by the appellants, under order xxi rule 97 cpc for removal of the obstruction, against the respondents. the first respondent is the alleged obstructer. the second respondent is judgment-debtor and the third respondent is an advocate, who is said to have instigated the first respondent to cause obstruction. the executing court ordered e.a.59 of 1995, by directing detention of the first respondent in civil prison. the e.a. was dismissed against the third respondent.4. the first respondent filed as no. 13 of 1998, against the order in e.a. no. 59 of 1995. the lower appellate court allowed the appeal, through its judgment, dated 31-3-2000, by observing that the nature of disposal given by executing court to e.a. no. 59 of 1995, does not fit into the purport of rule 97 of order xxi cpc. this cmsa arises out of the said order.5. sri k. v. subramanya narasu, learned counsel for the appellants submits that the executing court has undertaken extensive discussion, with reference to oral and documentary evidence in ea no. 59 of 1995, and has recorded a finding that the claim put forward by the first respondent is without any basis. he submits that the direction for detention of the first respondent in civil prison has to be treated as one of the measures of removal of obstruction. he submits that the lower appellate court had gone on hyper technicalities and had virtually defeated the benefit of the decree passed almost a decade ago.6. though respondents 1 and 2 are served, they have not chosen to enter appearance. the third respondent is represented by sri a. ravi shankar. no relief is claimed in this cmsa against the third respondent. hence, it is not necessary to refer to any contentions made on his behalf.7. it is a matter of record that the decree in favour of the appellants, for eviction of the 2nd respondent from the suit schedule property and for recovery of mense profits, became final. the record discloses that the second respondent did not offer any resistance for execution of the decree, except praying for extension of time, by filing ea no. 17 of 1995. the necessity for the appellants to file e.a. no. 59 of 1995 arose, because of the resistance offered by the first respondent to the bailiff, when possession was being delivered to the appellants.8. e.a. no. 59 of 1995 was dealt with elaborately as required under rule 101 of order xxi cpc, almost as an independent suit. extensive oral and documentary evidence was adduced by the parties. pw1 was examined and exs.a-1 to a-8 were marked for the appellants. on behalf of the respondents, rws.1 to 7 were examined and exs.b-1 to b-4 were marked. the first respondent resisted the application by pleading that he was a tenant of rw-7, and that he cannot be evicted on the basis of a decree obtained against the second respondent herein. on a consideration of the entire oral and documentary evidence before it, the executing court recorded a finding that there is no basis for the claim of the first respondent. the second respondent, the sole judgment-debtor has deposed before the executing court as rw-1, and stated that he has already delivered the possession of the suit schedule property. it was elicited from the first respondent, who examined himself as rw-2 that he worked as servant under rw-1. rw-7 who is the alleged lessor of the first respondent was not able to place any record before the executing court in support of his claim to the property. it clearly emerged that the claim of the first respondent was without any basis.9. the executing court, obviously, enraged by the conduct of the first respondent, directed his detention in civil prison, for a period of four weeks. understandably, in view of this extreme step, it did not give any other directions for removal of obstruction. it is possible to treat the detention of an obstructer in civil prison as one of the effective methods of removal of obstruction. the fact that a further direction was not issued by the executing court for removal of obstruction, cannot by itself, render the order passed by the executing court under rule 97 of order 21 cpc., ineffective or invalid. the lower appellate court was too hyer technical, when it taken the view that unless there is a direction for removal of obstruction, the order passed by the executing court cannot be sustained. such an approach, in a way, would defeat the very rights created in the decree holder, even after a finding emerges that the obstructer does not have any valid claim or interest in the property.10. for the foregoing reasons, the cmsa is allowed, and the order under appeal, is set aside. to avoid further complications and to save time, it is directed that the order in e.a. no. 59 of 1995 in e.p. no. 3 of 1995, shall be read as the one for removal of obstruction, and the executing court shall take immediate steps to put the appellants in possession of the suit schedule property, within four weeks from the date of receipt of this order, by removing obstructions of any kind. there shall be no order as to costs.