Kadityala Bharathi Vs. Telukuntla Narsimha 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]. - therefore, if the petitioner has any grievance with regard to the partition of the properties or has any claim in respect of any property so partitioned, she could as well file a fresh suit for appropriate relief, inasmuch the judgment and decree does not bind her.orderd.s.r. varma, j.1. this revision is filed against the order dated 24-7-2000 passed by the court of senior civil judge at nalgonda in i.a. no. 457/2000 in i.a. no. 432/1991 in o.s. no. 110/1989.2. the petitioner herein is the respondent no.4 in the suit for partition. the respondent no. 1herein is the plaintiff in the suit and she filed the suit for partition against his brother and others with regard to certain immovable property mentioned in plaint schedules a and b. a preliminary decree was passed and having come to know about the inclusion of some of the properties belonging to the petitioner in the partition suit, she filed an application in i.a. no. 100/1994 for impleading herself as respondent in i.a. no. 432/1991, which was filed by the respondent no. l - plaintiff for passing a final decree.3. during the course of enquiry in i.a. no. 432/1991, which was filed for passing of the final decree, the petitioner herein was directed to lead evidence by the court below and the matter was posted for enquiry. before starting the evidence, the revision petitioner herein, filed the application under order 19 rule 2 c.p.c., to submit the deponent of the affidavit in i.a. no. 432/1991 for cross-examination to bring the true facts for proper adjudication of the matter in issue before the court below. when the matter was posted for hearing on 26-6-2000, the present i.a. was filed. the court below having considered the material on record dismissed the said i.a. hence the revision.4. the learned counsel for the petitioner submits that the respondent no. l herein who is the plaintiff in the suit, had no sufficient means to support the other members of the family; that it was admitted in the plaint itself that there were hardly any joint family properties which fetch any income to the members of the family. in the light of the said admissions, it could be impossible to claim to have acquired the suit schedule properties more particularly the item nos.2, 3 and 4 of b schedule from out of the joint family funds. therefore, in the light of the said averments made in the plaint itself, the income cannot be treated as joint family property and hence it is necessary for the court below to permit the petitioner to cross-examine the deponent of the affidavit in i.a. no. 432/1991 (the plaintiff), for making such false allegations.5. it could be seen from the above facts that the petitioner/respondent no. 4 was not originally a party to the partition suit in o.s. no. 110/1989. the preliminary decree was passed and then only the petitioner came forward with the plea that some of the items of the plaint schedule properties belonging to the petitioner were included in the plaint schedule properties and the averments made in i.a. no. 432/1991 which was filed for passing of the final decree are totally false and baseless. hence, he sought the permission of the court to cross-examine the respondent no. 1-plaintiff.6. the court below did not accept the contention of the petitioner and rejected the same.7. in my considered view the order of rejection passed by the lower court is absolutely right for the following reasons.8. firstly the main suit was filed for partition and the preliminary decree was passed and at that stage, the petitioner did not choose to implead herself. secondly she was not a party to the original suit, and any judgment and decree does not bind the petitioner. therefore, if the petitioner has any grievance with regard to the partition of the properties or has any claim in respect of any property so partitioned, she could as well file a fresh suit for appropriate relief, inasmuch the judgment and decree does not bind her.9. nextly a perusal of the affidavit filed in support of the i.a. before the trial court does not reveal anything about the claim of the petitioner in respect of any other properties, included in the schedule of properties for partition. the entire affidavit though runs into more than three pages, does not indicate as to how the petitioner is entitled to claim any of the properties covered by the preliminary decree and how the preliminary decree was collusively obtained by the original parties to the suit. he only repeatedly reiterates in his affidavit before the court below that the preliminary decree was obtained fraudulently and states that she had no opportunity to cross-examine the 1st respondent-plaintiff. except this, no material particulars have been stated in the affidavit. it is irresistible for this court to observe that the averments made in the affidavit filed before the court below are totally frivolous, baseless and irresponsible. in this connection the lower court also found that after the impleadment, the petitioner was directed to show the prima facie title to the properties claimed by her, so as to delete such properties from the shares of the parties to the suit. without complying the said order, the petitioner had filed this i.a. seeking permission to cross-examine the 1st respondent. further i feel that the apparent intent in filing this kind of affidavit is only to protract the litigation.10. further as already noticed, she was not a party to the main suit and she got herself impleaded only at the stage of final hearing. therefore, heavy burden is cast upon her to prove the allegations made by her. it is rather ridiculous for the petitioner to seek the permission of the court to cross-examination the plaintiff-1st respondent at the stage of final hearing, without bringing anything on record in support of her averments. order 19 rules 1 and 2 cannot be invoked so mechanically as the petitioner herein deems. order 19 rule 1 is applicable in normal course only in cases where issues can be decided on the basis of the affidavit and generally not while dealing with interlocutory applications.11. further when the final decree petition was filed on the strength of the preliminary decree and a commissioner was appointed for partition of the properties, and a report was also filed by the commissioner, showing allotment of shares to the parties and when the court was about to pass a final decree, confirming the allotment made by the commissioner, the petitioner had filed the present la.12. for the foregoing reasons, i agree with the reasoning given by the court and i do not find any merits in the revision petition. accordingly the revision petition is dismissed. no costs.

Judgment:
ORDER

D.S.R. Varma, J.

1. This revision is filed against the order dated 24-7-2000 passed by the Court of Senior Civil Judge at Nalgonda in I.A. No. 457/2000 in I.A. No. 432/1991 in O.S. No. 110/1989.

2. The petitioner herein is the respondent No.4 in the suit for partition. The respondent No. 1herein is the plaintiff in the suit and she filed the suit for partition against his brother and others with regard to certain immovable property mentioned in plaint schedules A and B. A preliminary decree was passed and having come to know about the inclusion of some of the properties belonging to the petitioner in the partition suit, she filed an application in I.A. No. 100/1994 for impleading herself as respondent in I.A. No. 432/1991, which was filed by the respondent No. l - plaintiff for passing a final decree.

3. During the course of enquiry in I.A. No. 432/1991, which was filed for passing of the final decree, the petitioner herein was directed to lead evidence by the Court below and the matter was posted for enquiry. Before starting the evidence, the revision petitioner herein, filed the application under Order 19 Rule 2 C.P.C., to submit the deponent of the affidavit in I.A. No. 432/1991 for cross-examination to bring the true facts for proper adjudication of the matter in issue before the Court below. When the matter was posted for hearing on 26-6-2000, the present I.A. was filed. The Court below having considered the material on record dismissed the said I.A. Hence the revision.

4. The learned Counsel for the petitioner submits that the respondent No. l herein who is the plaintiff in the suit, had no sufficient means to support the other members of the family; that it was admitted in the plaint itself that there were hardly any joint family properties which fetch any income to the members of the family. In the light of the said admissions, it could be impossible to claim to have acquired the suit schedule properties more particularly the item Nos.2, 3 and 4 of B schedule from out of the joint family funds. Therefore, in the light of the said averments made in the plaint itself, the income cannot be treated as joint family property and hence it is necessary for the Court below to permit the petitioner to cross-examine the deponent of the affidavit in I.A. No. 432/1991 (the plaintiff), for making such false allegations.

5. It could be seen from the above facts that the petitioner/respondent No. 4 was not originally a party to the partition suit in O.S. No. 110/1989. The preliminary decree was passed and then only the petitioner came forward with the plea that some of the items of the plaint schedule properties belonging to the petitioner were included in the plaint schedule properties and the averments made in I.A. No. 432/1991 which was filed for passing of the final decree are totally false and baseless. Hence, he sought the permission of the Court to cross-examine the respondent No. 1-plaintiff.

6. The Court below did not accept the contention of the petitioner and rejected the same.

7. In my considered view the order of rejection passed by the lower Court is absolutely right for the following reasons.

8. Firstly the main suit was filed for partition and the preliminary decree was passed and at that stage, the petitioner did not choose to implead herself. Secondly she was not a party to the original suit, and any judgment and decree does not bind the petitioner. Therefore, if the petitioner has any grievance with regard to the partition of the properties or has any claim in respect of any property so partitioned, she could as well file a fresh suit for appropriate relief, inasmuch the judgment and decree does not bind her.

9. Nextly a perusal of the affidavit filed in support of the I.A. before the trial Court does not reveal anything about the claim of the petitioner in respect of any other properties, included in the schedule of properties for partition. The entire affidavit though runs into more than three pages, does not indicate as to how the petitioner is entitled to claim any of the properties covered by the preliminary decree and how the preliminary decree was collusively obtained by the original parties to the suit. He only repeatedly reiterates in his affidavit before the Court below that the preliminary decree was obtained fraudulently and states that she had no opportunity to cross-examine the 1st respondent-plaintiff. Except this, no material particulars have been stated in the affidavit. It is irresistible for this Court to observe that the averments made in the affidavit filed before the Court below are totally frivolous, baseless and irresponsible. In this connection the lower Court also found that after the impleadment, the petitioner was directed to show the prima facie title to the properties claimed by her, so as to delete such properties from the shares of the parties to the suit. Without complying the said order, the petitioner had filed this I.A. seeking permission to cross-examine the 1st respondent. Further I feel that the apparent intent in filing this kind of affidavit is only to protract the litigation.

10. Further as already noticed, she was not a party to the main suit and she got herself impleaded only at the stage of final hearing. Therefore, heavy burden is cast upon her to prove the allegations made by her. It is rather ridiculous for the petitioner to seek the permission of the Court to cross-examination the plaintiff-1st respondent at the stage of final hearing, without bringing anything on record in support of her averments. Order 19 Rules 1 and 2 cannot be invoked so mechanically as the petitioner herein deems. Order 19 Rule 1 is applicable in normal course only in cases where issues can be decided on the basis of the affidavit and generally not while dealing with interlocutory applications.

11. Further when the final decree petition was filed on the strength of the preliminary decree and a Commissioner was appointed for partition of the properties, and a report was also filed by the Commissioner, showing allotment of shares to the parties and when the Court was about to pass a final decree, confirming the allotment made by the Commissioner, the petitioner had filed the present LA.

12. For the foregoing reasons, I agree with the reasoning given by the Court and I do not find any merits in the revision petition. Accordingly the revision petition is dismissed. No costs.