Smt. Sunkara Sree Laxmi Vs. Smt. Sudireddy Sarojini Devi - Court Judgment

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civil - framing of issue - order 14 rule 3 of code of civil procedure, 1908 - trial court rejected defendant's application for inclusion of additional issue - appeal preferred against such order - written statement contained averment pertaining to that issue - draft issue also contained same point - issues to be framed on basis of allegation in plaint or in written statement -trial court ought to have framed issues when there is an averment to that effect in written statement - held, trial court's rejection to include issue not maintainable. - 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]. - when it failed to do so, the said factum was brought to the notice of the court below through the present applications and the court below refused to include the said issue as one of the issues.gopala krishna tamada, j.1. though notices were served on the respondent herein on 29-8-2002, the respondent has not chosen to put in her appearance through a counsel and hence this court proceeds to dispose of the matters on merits. as the point involved in both the matters is one and the same, both these revisions are disposed of by a common order.2. the respondent herein i.e., the plaintiff, filed two suits for recovery of certain amounts basing on two promissory notes alleged to have been executed by the petitioner herein (defendant). after settlement of issues, the petitioner/defendant filed interlocutory applications in those two suits for framing of an additional issue as to whether the respondent/plaintiff is a moneylender and she has any money lending license. the special assistant agent, mobile court, bhadrachalam, by his docket order dated 28-6-2002 dismissed those applications in the following manner:'petition filed by d (defendant) to add one more issue. the d's (defendant's) contention is that since p (plaintiff) has filed for recovery of money is another case, there is a presumption that p (plaintiff) is doing money lending business. d (defendant) wants this to be included as another issue. but apart from another case against the same person, there is no other evidence adduced before court to prove p (plaintiff) is a money lender. so i.a. is dismissed. for p (plaintiff) evidence call on 16/8.'3. admittedly in the written statement filed by the petitioner/defendant, it was stated that the plaintiff i.e., the respondent, is a big money lender and lending huge amounts for high interest without money lending license. in the draft issues also which were submitted on behalf of the petitioner, an issue as to whether the plaintiff being moneylender can file the suit without money lending license, was raised. in spite of the specific averment made in the written statement and also in the draft issues submitted on behalf of the defendant, the court below settled the issues but, however, the said issue as to whether the respondent is a money lender and the suit filed without any money lending license is maintainable or not, was not framed.4. rule 3 of order 14 c.p.c. deals with matters from which issues may be framed. according to rule 3 (b), an issue may be framed basing on the allegations made in the pleadings or answers to interrogatories delivered in the suit. when there is a clear and categorical averment in the written statement filed by the defendant that the respondent/plaintiff is doing money lending business without any license and an issue to the above effect was also included in the draft issues raised on behalf of the petitioner/defendant, the court below ought to have framed an additional issues on that aspect. when it failed to do so, the said factum was brought to the notice of the court below through the present applications and the court below refused to include the said issue as one of the issues. in my considered opinion, court below is not justified in doing so. for the foregoing reasons, the orders under revisions are liable to be set aside.5. in the result, the revisions are allowed and the docket orders dated 28-6-2002 passed by the special assistant agent, mobile court, bhadrachalam, in the two suits i.e., o.s. no. 44 and 50 of 2001, are hereby set aside. the special assistant agent is hereby directed to frame an additional issue in both the suits as to whether the plaintiff is a money lender or not. no costs.