Union Bank of India Vs. A. Natesam Chetty and ors. - Court Judgment

Excerpt:
limitation - condonation of delay - section 5 of limitation act, 1963 and order 34 rule 2 (1) of code of civil procedure, 1908 - whether lower court erred in dismissing petition for condonation of delay in filing final decree petition - section 5 applicable to final decree petition - held, application for condonation of delay maintainable in such cases and so decision of lower court set aside. - 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]. - the lower court failed to give its reasons for dismissing the petition to condone the delay.orderdalava subrahmanyam, j.1. the revision petitioner filed the revision against the decree and order in la. no. 187/1991 in o.s. no. 101/1978 on the file of the subordinate judge, puttur in dismissing the petition filed under section 5 of the limitation act to condone the delay in filing the final decree petition.2. the brief facts of the case are as follows:3. the revision petitioner filed o.s. no. 101/78 on the file of the additional subordinate judge, chittoor and a preliminary decree was passed on 3.3.1980 against the respondents-defendants. subsequently, in view of the jurisdiction of the courts, i.a. no. 187/91 was filed before the subordinate judge's court, puttur and an application was filed to condone the delay of 2948 days in filing the final decree petition. the learned subordinate judge, puttur held that the petition is not maintainable under section 5 of the limitation act and hence the petition was barred by limitation and accordingly it was dismissed.4. aggrieved against the said decree and order, the revision petitioner filed the revision contending that the order passed by the subordinate judge, puttur in dismissingthe petition filed under section 5 of the limitation act is not correct. the lower court ought to have allowed the petition under section 5 of the limitation act. the lower court ought to have held that when a preliminary decree is passed, there is no bar for moving a final decree, and if there is delay a petition to be filed under section 5 of the limitation act. the lower court failed to give its reasons for dismissing the petition to condone the delay. for the above said reasons, the revision may be allowed.5. now the point for consideration is whether the lower court erred in dismissing the petition holding that section 5 of the limitation act has no application to condone the delay in filing the final decree petitions and if so whether the revision is liable to be allowed?6. it is an admitted fact that the preliminary decree was passed against the respondents in o.s. no. 101/1978 on the file of additional subordinate judge, chittoor. in view of the jurisdiction of the courts, i.a. 187/1991 was filed before the subordinate judge of puttur for passing final decree. as there was a delay in filing the petition, a petition was filed under section 5 of the limitation act to condone the delay of 2948 days. the subordinate judge, puttur following the decision in union bank of india v. n. singaramma and ors., 1988 (1) alt 275, held that the petition is barred by limitation.7. learned counsel for the revision petitioner relied on a decision in state bank of india v. vendanathangal dairy farm and ors., : (2000)10scc538 , wherein it was held that a petition under section 5 of the limitation act is applicable for filing the applications under order 34, rule 2(1)(c)(ii) c.p.c. the apex court held that a petition under section 5 of the limitation act is applicable to final decree proceedings. in arecent case in state bank of hyderabad v y. venkat reddy and ors., : 2002(1)ald261 , this court held that section 5 of the limitation act applies to applications filed under order 34, rule 5 c.p.c. for passing a final decree.8. in view of the decisions cited above, the subordinate judge, puttur committed an error in coming to the conclusion that section 5 of the limitation act has no application for filing final decree petitions. the subordinate judge, puttur did not discuss the reasons for the delay in filing the petition under section 5 of the limitation act. relying on the above decisions, the order of the subordinate judge, puttur is liable to be set aside.9. in the result, the revision petition is allowed and the order passed in i.a no. 187/1991 on the file of the subordinate judge, puttur, dated 30.4.1993 is set aside and the case is remanded to the subordinate judge, puttur and i.a. no. 187/91 shall be restored to file and the petition shall be disposed of on merits after giving notice to the parties. no costs.

Judgment:
ORDER

Dalava Subrahmanyam, J.

1. The revision petitioner filed the revision against the decree and order in LA. No. 187/1991 in O.S. No. 101/1978 on the file of the Subordinate Judge, Puttur in dismissing the petition filed under Section 5 of the Limitation Act to condone the delay in filing the final decree petition.

2. The brief facts of the case are as follows:

3. The revision petitioner filed O.S. No. 101/78 on the file of the Additional Subordinate Judge, Chittoor and a preliminary decree was passed on 3.3.1980 against the respondents-defendants. Subsequently, in view of the jurisdiction of the Courts, I.A. No. 187/91 was filed before the Subordinate Judge's Court, Puttur and an application was filed to condone the delay of 2948 days in filing the final decree petition. The learned Subordinate Judge, Puttur held that the petition is not maintainable under Section 5 of the Limitation Act and hence the petition was barred by limitation and accordingly it was dismissed.

4. Aggrieved against the said decree and order, the revision petitioner filed the revision contending that the order passed by the Subordinate Judge, Puttur in dismissingthe petition filed under Section 5 of the Limitation Act is not correct. The lower Court ought to have allowed the petition under Section 5 of the Limitation Act. The lower Court ought to have held that when a preliminary decree is passed, there is no bar for moving a final decree, and if there is delay a petition to be filed under Section 5 of the Limitation Act. The lower Court failed to give its reasons for dismissing the petition to condone the delay. For the above said reasons, the revision may be allowed.

5. Now the point for consideration is whether the lower Court erred in dismissing the petition holding that Section 5 of the Limitation Act has no application to condone the delay in filing the final decree petitions and if so whether the revision is liable to be allowed?

6. It is an admitted fact that the preliminary decree was passed against the respondents in O.S. No. 101/1978 on the file of Additional Subordinate Judge, Chittoor. In view of the jurisdiction of the Courts, I.A. 187/1991 was filed before the Subordinate Judge of Puttur for passing final decree. As there was a delay in filing the petition, a petition was filed under Section 5 of the Limitation Act to condone the delay of 2948 days. The Subordinate Judge, Puttur following the decision in Union Bank of India v. N. Singaramma and Ors., 1988 (1) ALT 275, held that the petition is barred by limitation.

7. Learned Counsel for the revision petitioner relied on a decision in State Bank of India v. Vendanathangal Dairy Farm and Ors., : (2000)10SCC538 , wherein it was held that a petition under Section 5 of the Limitation Act is applicable for filing the applications under Order 34, Rule 2(1)(c)(ii) C.P.C. The Apex Court held that a petition under Section 5 of the Limitation Act is applicable to final decree proceedings. In arecent case in State Bank of Hyderabad v Y. Venkat Reddy and Ors., : 2002(1)ALD261 , this Court held that Section 5 of the Limitation Act applies to applications filed under Order 34, Rule 5 C.P.C. for passing a final decree.

8. In view of the decisions cited above, the Subordinate Judge, Puttur committed an error in coming to the conclusion that Section 5 of the Limitation Act has no application for filing final decree petitions. The Subordinate Judge, Puttur did not discuss the reasons for the delay in filing the petition under Section 5 of the Limitation Act. Relying on the above decisions, the order of the Subordinate Judge, Puttur is liable to be set aside.

9. In the result, the Revision Petition is allowed and the order passed in I.A No. 187/1991 on the file of the Subordinate Judge, Puttur, dated 30.4.1993 is set aside and the case is remanded to the Subordinate Judge, Puttur and I.A. No. 187/91 shall be restored to file and the petition shall be disposed of on merits after giving notice to the parties. No costs.