Dr. Shakeel Ahmad Vs. Smt. Sabina Khatoon - Court Judgment

Excerpt:
limitation - petition against restoration of suit - section 115(2) and order 9 rule 9 of code of civil procedure, 1908 - suit dismissed due to default - application to restore after condoning delay - sufficient grounds for restoration - order of restoration not disclosing those grounds - no failure of justice or irreparable injury due to it - circumstances for default examined - held, order of restoration of legal. - 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 opposite party failed to appear. the learned counsel for the applicant contends that the order is bad in as much as it does not disclose reasons. 115 of the code, as applicable in the state of uttar pradesh, it has to be established that there would be a failure of justice, or the aggrieved party shall suffer an irreparable injury if the impugned order is allowed to stand. 5 of the act, affidavit filed in support thereof and also the objection filed on behalf of the applicant, and is satisfied that, on the facts and circumstances of the case, the order dismissing the suit for default in appearance imminently deserved to be set aside, and in doing so, the court below did not commit any illegality or material irregularity in exercise of jurisdiction.order1. heard sri c. b. yadav, holding brief of sri r. h. zaidi, learned counsel for the applicant.2. in suit no. 107 of 1984, wherein the opposite party and the applicant figure as plaintiff and defendant respectively, 4th may, 1987iwas fixed for final hearing. the opposite party failed to appear. consequently, the suit was dismissed in default on 15th september, 1987. the opposite party moved an application under o. ix, r. 9 of the code of civil procedure, 1908, hereinafter called the code, along with an application under s. 5 of the indian limitation act, 1963, hereinafter called the act. in the application, the opposite party pleaded that she was a pardanashin lady and dependent on her brother for the purposes of pairavi. her brother had gone to kanpur in connection with his business and on account of his absence the opposite party could not appear on 4th may, 1987. she could not personalty instruct her lawyer either. however, she had sent a letter to her counsel which, according to her, did not reach to the counsel. this led to default in appearance and dismissal of the suit. then curfew was imposed in the city of meerut on account of deterioration of law and order situation. thereafter, the brother of opposite party again went outside merrut in connection with his business and returned on 12th september, 1987. on his return the brother of the applicant got in touch with the lawyer, who informed him that the suit had been dismissed for default in prosecution. on coming to know of this dismissal, she moved an application for restoration of the suit accompanied by an application for condonation of delay, under s. 5 of the act. she pleaded that the default in appearance was neither deliberate nor want on. the application of the applicant was opposed by the defendant-applicant.3. taking into consideration overall picture of the facts and circumstances of the case, the court below has, by means of its order dated 9th december, 1988, impugned in the instant revision, allowed the application of the opposite party under o. ix, r. 9 of the code after condoning delay in moving the said application. the learned counsel for the applicant contends that the order is bad in as much as it does not disclose reasons. the order, no doubt, does not indicate the reasons for allowing the restoration application. but, that is not enough for setting aside the order. as required by cl. (ii) of the second proviso to s. 115 of the code, as applicable in the state of uttar pradesh, it has to be established that there would be a failure of justice, or the aggrieved party shall suffer an irreparable injury if the impugned order is allowed to stand. this court, having powers coextensive with the powers of the court below to satisfy itself about the sufficiency of the cause for default in appearance and delay in moving the condonation application, has examined the applications of the opposite party under o. ix. r. 9 of the code and under s. 5 of the act, affidavit filed in support thereof and also the objection filed on behalf of the applicant, and is satisfied that, on the facts and circumstances of the case, the order dismissing the suit for default in appearance imminently deserved to be set aside, and in doing so, the court below did not commit any illegality or material irregularity in exercise of jurisdiction. the impugned order does complete justice and cannot be said to cause any injury to the applicant, much less irreparable. no interference by this court is called for.4. for what has been said above, thisrevision fails and is, hereby, dismissed summarily.5. petition dismissed.

Judgment:
ORDER

1. Heard Sri C. B. Yadav, holding brief of Sri R. H. Zaidi, learned counsel for the applicant.

2. In Suit No. 107 of 1984, wherein the opposite party and the applicant figure as plaintiff and defendant respectively, 4th May, 1987iwas fixed for final hearing. The opposite party failed to appear. Consequently, the suit was dismissed in default on 15th September, 1987. The opposite party moved an application under O. IX, R. 9 of the Code of Civil Procedure, 1908, hereinafter called the Code, along with an application under S. 5 of the Indian Limitation Act, 1963, hereinafter called the Act. In the application, the opposite party pleaded that she was a Pardanashin lady and dependent on her brother for the purposes of Pairavi. Her brother had gone to Kanpur in connection with his business and on account of his absence the opposite party could not appear on 4th May, 1987. She could not personalty instruct her lawyer either. However, she had sent a letter to her counsel which, according to her, did not reach to the counsel. This led to default in appearance and dismissal of the suit. Then curfew was imposed in the city of Meerut on account of deterioration of law and order situation. Thereafter, the brother of opposite party again went outside Merrut in connection with his business and returned on 12th September, 1987. On his return the brother of the applicant got in touch with the lawyer, who informed him that the suit had been dismissed for default in prosecution. On coming to know of this dismissal, she moved an application for restoration of the suit accompanied by an application for condonation of delay, under S. 5 of the Act. She pleaded that the default in appearance was neither deliberate nor want on. The application of the applicant was opposed by the defendant-applicant.

3. Taking into consideration overall picture of the facts and circumstances of the case, the court below has, by means of its order dated 9th December, 1988, impugned in the instant revision, allowed the application of the opposite party under O. IX, R. 9 of the Code after condoning delay in moving the said application. The learned counsel for the applicant contends that the order is bad in as much as it does not disclose reasons. The order, no doubt, does not indicate the reasons for allowing the restoration application. But, that is not enough for setting aside the order. As required by Cl. (ii) of the second proviso to S. 115 of the Code, as applicable in the State of Uttar Pradesh, it has to be established that there would be a failure of justice, or the aggrieved party shall suffer an irreparable injury if the impugned order is allowed to stand. This Court, having powers coextensive with the powers of the court below to satisfy itself about the sufficiency of the cause for default in appearance and delay in moving the condonation application, has examined the applications of the opposite party under O. IX. R. 9 of the Code and under S. 5 of the Act, affidavit filed in support thereof and also the objection filed on behalf of the applicant, and is satisfied that, on the facts and circumstances of the case, the order dismissing the suit for default in appearance imminently deserved to be set aside, and in doing so, the court below did not commit any illegality or material irregularity in exercise of jurisdiction. The impugned order does complete justice and cannot be said to cause any injury to the applicant, much less irreparable. No interference by this Court is called for.

4. For what has been said above, thisrevision fails and is, hereby, dismissed summarily.

5. Petition dismissed.