Mohibullah Vs. Imami and ors. - Court Judgment

Excerpt:
compromise of suit awarding the plaintiff more than amount claimed - consent of parties--execution of decree limited to amount claimed--suit for larger amount awarded in compromise--question for court executing decree--civil procedure code, section 244. - 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]. john edge, kt., c.j.1. this was an action brought to obtain possession of certain land which, under the terms of an agreement of compromise the defendant had agreed should be decreed to the plaintiff in a previous action. in the previous action the result of the compromise was that the plaintiff obtained a greater quantity of land by the decree than he had originally claimed--i.e., the parties had agreed, in order to put an end to the suit, that the plaintiff should obtain a greater quantity in a certain plot than he had originally claimed. it appears that the munsif raised an objection to the drawing up of that decree, in accordance with the terms of the compromise, on the ground that the plaintiff was getting more than he claimed, and that the pleaders of the parties there and then admitted that the plaintiff was to have the decree which he was claiming. on that the decree in accordance with the compromise was properly drawn up by the munsif. i know of no law which prevents the parties to an action enlarging by consent or compromise the original claim, and getting or allowing a decree for a greater amount of money or land than originally claimed. by consent of the parties and the leave of the court an action may be amended to cover an increased claim. it was competent to the parties, with the consent of the munsif, to have a decree prepared, as was done in this case. so far, they acted bona fide.2. when the plaintiff proceeded to get execution under this decree, the defendant, to my mind most unfairly, raised an objection that the plaintiff could not have execution for a greater quantity of land in the particular plot than he had originally claimed. the munsif being misled, in my judgment, as to the law, declined to make an order for the larger amount of land mentioned in the decree. unfortunately the order was not appealed against, but the present suit was brought. it appears to me, so far as this suit is concerned, that it comes within section 244 of the civil procedure code, which prohibits a separate suit in a case of this kind. therefore i am of opinion that the present suit cannot be maintained. i however, throw out this suggestion, that the munsif, having made an error in law, and having been misled into that error by an objection which had been improperly taken by the defendant, may properly, in an application for review, reconsider the order of the 9th april 1885, and give the present plaintiff the benefit of the compromise, so that no injustice and hardship may occur.3. the appeal is dismissed with costs.oldfield, j.4. i concur.