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PREM NARAIN NIGAM versus STATE OF U.P. THRU' CHIEF SECRE. AND OTHERS

High Court of Judicature at Allahabad

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Prem Narain Nigam v. State Of U.P. Thru' Chief Secre. And Others - WRIT - A No. 72268 of 2005 [2006] RD-AH 14542 (28 August 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 39

Civil Misc. Writ Petition No. 72268 of 2005

Prem Narain Nigam vs. The State of U.P. and others

HON. ARUN TANDON, J.

Petitioner Sri Prem Narain Nigam claims to have been appointed as permanent Principal of C.O.D. Adarsh H. S. School, Kanpur and thereafter absorbed as permanent Principal of Shri Sidheshwar H.S. School, Gopalpur, Fatehpur w.e.f. 5th June, 1984. While working as permanent Principal of Shri Sidheshwar H.S. School, the petitioner according to his own allegation was placed under suspension w.e.f. 20th December, 1985.

According to petitioner he was not served with any charge sheet and retired on 31st December, 1986 in view of his having attained the age of 60 years in December, 1986. Despite representations, the petitioner alleges to have not been paid any penny towards arrears of salary as well as retiral benefits. Feeling aggrieved, the petitioner filed original suit, being Suit No. 47 of 1990. The relief sought therein was for payment of arrears of salary as well as pension. The suit is alleged to have been decreed on 30.1.1993 in absence of the defendants.

The defendants, therefore, filed an application under Order IX Rule 13 of the Code of Civil Procedure for restoration of the suit to its original number after recall of the ex parte order. The application was rejected by the trial court vide order dated 12th October, 1995. The defendants preferred an appeal, which was also dismissed by the First Appellate Court on 1st December, 1998 being barred by limitation. Against the order dated 1st December, 1998, defendants filed a writ petition before the High Court of Judicature at Allahabad, being Writ Petition No. 6961 of 1999. The writ petition was ultimately allowed by this Court vide judgment and order dated 15th May, 2002 and the matter was remanded to the District Judge for re-hearing the application for condonation of delay in filing of the appeal, on merits.

The District Judge, after hearing the parties, allowed Section 5 application and transferred the appeal for hearing on merit to the  Third Additional District Judge. The Appellate Court, after hearing the parties, allowed the appeal vide judgment and decree dated 7.1.2003. The appellate Court set aside the ex parte judgment and decree dated 30.1.1993. The suit was directed to be decided on merits afresh. Against the said order of the First Appellate Court, the petitioner filed Writ Petition No. 17271 of 2003.

In the said writ petition initially an interim order was passed by this Court, whereby the defendants were directed to pay a sum of Rs. 10,00,000/- (Ten Lacs) to the petitioner within a period of one month or to appear before the Court for explaining as to why the amount has not been paid. The defendants appeared before the Court and filed an affidavit to the effect that the petitioner's services were terminated by the Manager on 30th December, 1986 and all dues up to 31st December, 1986 were duly paid to the petitioner.

Petitioner contested the case so pleaded by the defendants in the aforesaid writ petition. The Hon'ble Court refused to enter into the merits of plea of dismissal from service of the petitioner, with the observation that the matter has been remanded back to the trial court for adjudication on merits after setting aside the ex parte decree, as such this issue shall also be examined by the trial court itself. The writ petition was accordingly dismissed with a direction upon the trial court to decide the suit within six months from the date a certified copy of this order is filed before the Court concerned.

Petitioner thereafter moved an application for review of the judgment of this Court dated 9.9.2004. The review application was also dismissed vide judgment and order dated 20.5.2005. It is worthwhile to reproduce the order of the Court dated 20.5.2005, which amongst other notices the grounds raised for the review of judgment. The order read as follows:

"This is an application seeking review of my judgment and order dated 9.9.2004, whereby the writ petitioner filed by the applicant-pt was dismissed with the direction to the trial court to decide the matter expeditiously preferably within a period of six months from the date of presentation of a certified copy of this order as the suit is fairly old and relates to the salary and pensionary benefits of a teacher which has not been paid since 1984.

The present review application has been filed inter alia on the grounds (1) because the order dismissing the writ petition means warrant of death for the petitioner as the petitioner has already become 80 years of age and has become much more feeble than his age due to non-payment of his pension for the last about 18 years; (2) because the suit was filed in the year, 1990; (3) because the pension is the only means of living of a retired person was not paid to the petitioner for continuous 12 years; (4) because the committee of management was the appointing and terminating authority and therefore, was liable for payment of salary. So in the suit it was made defendant No. 1, and so on.

This review application has been filed by the petitioner in person who had argued the writ petition also in person. After filing of the review application Shri M.D. Singh Shekhar, learned counsel for the applicant appeared and he argued the application. A perusal of the grounds taken in the review application clearly demonstrates that these grounds were open to the petitioner to be argued at the time of hearing of the writ petition. Now at the time of hearing of review application these grounds are not available to the petitioner in view of the decision of the Apex Court reported in JT 2002(1) Selection Committee 197; State of Haryana and others Versus Mohinder Singh and others wherein the Apex Court relying upon its earlier decision reported in JT 1997(8) Selection Committee 480; Parsion Devi and others Versus Sumitri Devi and others has ruled as under :

"The scope available for a litigant invoking the powers of review is not one more chance for rehearing of the matter already finally disposed of. The division bench in the High Court, completely overstepped the limits of its review jurisdiction and on the face of it appears to have proceeded as though it is a rehearing of the whole petition which had been earlier finally disposed of. This has been held by this Court to be not permissible."

The Apex Court quoted with the approval the observations made in the case of Parison Devi (supra) which are as under:

"Under order 47 rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be aid to be an error apparent on the face of the record justifying the court to exercise its power of review under order 47 rule 1 CPC. In exercise of the jurisdiction under order 47 rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected".  A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".

This Court also held in the case reported in 2002 ALL. C.J. Page 1073; Krishna Murari and others Versus 3rd Additional District and Sessions Judge, Mathura and others that the discovery of new facts or points which were open to be argued, but have not been argued before High Court, cannot be the ground for review of the judgment and order of the High Court.

As against this, Sri M.D. Singh Shekhar, learned counsel for the applicant relied upon a number of decisions of the Apex Court in support of the merits of the case.

In view of what has been laid down by the Apex Court in the case of State of Haryana (supra) and in the case of Parison Devi (supra) the arguments advanced by the applicant cannot invoke the exercise of review jurisdiction by this Court. A perusal of the grounds, some of which are quoted above, also demonstrate that the petitioner is fact, wants rehearing of the writ petition, which is not permissible under the review jurisdiction.

Learned counsel for the applicant-pt could not point any error which may amount to the error, apparent on the face of record, so as to warrant review of the judgment in question even on the principle of Order 47 Rule 1 of the Code of Civil Procedure.

In this view of the matter, this review application has not force and is rejected."  

Even after the review application had been dismissed, the petitioner on 11th November, 2005 made another application for proceedings being taken against respondent no. 2 and 3 under Section 191, 192, 193 Cr.P.C.. The application so filed has also been rejected by the learned Single Judge vide order dated 27.3.2006. After his first writ petition as well as review application filed therein had been dismissed, P. N. Nigam has filed this second writ petition with the following relief:

"A. To issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay to the petitioner his arrears of Pay Fixation, Salary, Pension, Group Insurance, P.F. Amount with interest due from 1984 to date amounting to Rs. 90,75,341/-.

B. To issue a writ, order or direction in the nature of Mandamus commanding the respondents pay compensation of Rs. 10 Crore for violating Fundamental rights of the petitioner under Article 21, 38, 39 (e), 32, 41, 43, 48A and 226 of the Constitution of India.

C. To issue writ, order or direction in the nature of mandamus commanding the respondents to commute the entire pension of the petitioner at the present rate as they have not commuted the pension at the time of retirement on 30th June, 1987.

D. To issue any other writ, order or direction as this Hon'ble Court may deem fit and proper.

E. To award cost to the petitioner for involving him in litigation for 19 years by the respondents."

       

In paragraph 15 of the present writ petition it has been stated that trial court has dismissed the original suit filed by the petitioner in default on 16.9.2003.

Petitioner Sri Prem Narain Nigam, who is present and has argued the petition in person, states that he is not interested in getting the suit restored and it is in this background that he has not filed any restoration application till date.

From the prayer made in the present writ petition, it is apparent that the petitioner seeks payment of Rs. 90,75,341/- towards pay fixation, salary, pension, group insurance and interest since 1984. He has further claimed a relief of compensation to the tune of Rs. 10 crore being paid to him for violation of his fundamental rights as well as computation of pension.

In order to keep the record straight be may recorded that in paragraph 16 of the writ petition it has been stated that in execution of the ex parte decree dated 30.1.1993, a sum of Rs. 7 lacs was paid to petitioner on 19th December, 1998 as part payment through Court.

After the ex parte judgment and decree was set aside, the defendants have filed an Application No. 17/74 of 2003 for recovery of the said sum of Rs. 7 lacs, which was paid to petitioner under the ex parte decree through intervention of the Executing Court. This application in the execution proceedings is still pending.

I have heard the petitioner in person and and have gone through the records of the writ petition.

From the facts noticed herein above, it is apparently clear that petitioner had initiated original suit proceedings for payment of arrears of salary for the period subsequent to 5th June, 19984 and pension w.e.f. 1.7.87 on the ground that he has been retired. The right of the petitioner for payment of salary as well as for payment of pension as such were subject matter of consideration in the said suit proceedings. It is admitted to the petitioner that the ex parte decree dated 30.1.1993, which was granted in his favour earlier was set aside under judgment and order of First Appellate Court dated 7.1.2003, referred to above. Once the judgment and decree of the Trial Court has been set aside by the Appellate Court, the order passed by the trial court becomes a nullity and is render non-existence in the eyes of law. The same is render a mere piece of paper.

It is further not in dispute that after the suit was restored under a judgment of the First Appellate Court the same has been dismissed in default and absolutely no effort has been made by the petitioner for last three years for getting the suit restored to its original number. On the contrary he has made a statement before this Court that he is not interested in restoration of the suit to its original number.

In the opinion of the Court, the right claimed by the petitioner for payment of salary and pension stood closed with the dismissal of the suit, filed by the petitioner.

The present writ petition for similar relief, although couched in a different language, is not maintainable with reference to Order IX Rule 8 and 9, which read as follows:

"8. Procedure where defendant only appears.- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

9. Decree against plaintiff by default bars fresh suit.- (1) where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."

The Hon'ble Supreme Court in the cases of Regional Food Controller, Meerut and another v. Hazari Mal Radha Kishan, Commission Agent, RDTD. Firm At Pakka Bagh, Hapur, District Meerut through its Partner Om Prakash; 1966 (Vol. 64) ALJ 528, Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others; AIR 1987 SC 88, In re: Udai Narain Rai; 1992 ALL.L.J. 274, Tata Press Limited v. Mahanagar Telephone Nigam Limited and others; AIR 1995 S C 2438, Ashok Kumar Srivastav v. National Insurance Company Ltd. and others; (1998) 4 SCC 361,   Commissioner of Endowments and others v. Vittal Rao and others; AIR 2005 S C 454  has specifically laid down that although Civil Procedure Code may not be applicable in its entirety in writ proceeding but principle enshrined therein apply with full force. Consequently, in view of the principle, prohibiting bringing of a second suit for same cause of action would necessarily apply that a writ petition for the same cause of action which was wholly or partly subject matter of suit filed by plaintiff-petitioner earlier and which has been dismissed in default would be precluded.  

Legal position in that regard has been explained under a Division Bench judgment of this Court in the case of Sheo Nath Dubey vs. District Inspector of Schools, Mainpuri and others; 1985(2) UPLBEC 1374, wherein it has been held as follows:

"11. In the rejoinder affidavit, the petitioner has come out with an excuse for not disclosing the fact of dismissal of the suit in the writ petition which appears to us to be a lame one. His explanation is that as he was not getting leave from the College for pursuing the suit, he had no alternative but to leave the same. It was his duty to have disclosed the said fact in the writ petition. Be that as it may, from the order it appears that on the date when the suit was taken up, the defendant was present in the court and the order indicates that the petitioner had since failed to show cause for which he had been granted time, it was dismissed for want of prosecution. To the filing of the writ petition, the principle of Order IX, Rule 9 applied. In the view of the applicability of the principle, the present writ petition was barred. It is true that Order IX, Rule 9 applies to a civil suit in terms but, as stated above Order IX, Rule 9, being behind the idea that no body should be harassed unnecessarily by fresh proceedings one after the other, would apply to the maintainability of the writ petition also.

 

14. Independently of the doctrine of election, the question of the sound exercise of judicial discretion is  that having chosen the remedy of filing a suit, the petitioner had the benefit of a meaningful hearing of the lis therein. He cannot be permitted to harass a party by changing the forum of court from one to another. Judicial discretion requires the rejection of the writ petition on the ground."

Accordingly, this Court has no hesitation to hold that this writ petition, as filed by the petitioner subsequent to dismissal of his suit for the same cause, is legally not maintainable.

Petitioner made an attempt to justify the filing of this writ petition by contending that the earlier suit was confined to the payment of pension up to the date of institution of suit, while in the present writ petition petitioner has claimed pension for the subsequent period and therefore is based on a different cause of action.

Lastly it has also been contended that the petitioner has already attained the age of 80 years and therefore he may not be forced to revive his suit proceedings inasmuch as he may not be able to avail the fruit of the judgment and decree which may be passed in his favour after long litigation in the suit proceedings.

The contention so raised appears to be attractive at the first instance. However, after examining the facts as on record, it would be apparent that the plea raised is only a camouflage to somehow or other claiming to the illegal benefit (payment of Rs. 7 lacs), which the petitioner has derived by way of part execution of the ex parte decree, which was passed in his favour in the suit earlier and which has subsequently been set aside.

It may be recorded that defendants had taken a plea before this Court in Writ Petition No. 17271 of 2003 to the effect that the services of the petitioner were terminated on 30th December, 1986. The High Court did not enter into the merits of the said contention inasmuch as it was the opinion that the said issue would be tried in the suit filed by the plaintiff-petitioner. If the plea taken by the defendants would have found favour with the court below, the consequent would have been that the petitioner would not be held entitled for any salary nor he could be entitled for payment of pension.

This adjudication of the right of the petitioner for payment of salary and consequently pension subsequent to 31st December, 1986 has deliberately been short circuited because of the act of the petitioner himself by getting his suit dismissed in default and further by not getting the same restored.

The relief for payment of pension for the subsequent period is also dependent upon the decision of the issue as to whether the services of the petitioner were terminated on 30th December, 1986 as alleged by the defendants or not, and such issue had to be adjudicated in the suit filed by the plaintiff himself.

In view of the aforesaid, the contention raised by the plaintiff has to be rejected. The present writ petition, as filed by the petitioner, is legally not maintainable and is accordingly dismissed. This Court is further of the view that interest of justice requires that the application filed by the defendants, being Application No. 17/74 of 2003, pending in the execution case, which was earlier initiated by the plaintiff/petitioner on the basis of an ex parte decree, wherein he had been paid a sum of Rs. 7 lacs in part execution of the ex parte decree, must be decided by the executing Court, preferably within three months from the date a certified copy of this order is filed before the Court concerned and all effective steps should be taken in accordance with the orders to be passed, without any further delay.

Having regard to the fact that the petitioner has attained the age of 80 years, this Court think it equitable to provide that even now it shall be open to the plaintiff-pt to get his Original Suit No. 47 of 1990 restored by making an appropriate application and if such an application is filed, the Court below shall consider and decide the application sympathetically.

With the aforesaid directions/observations, the present writ petition is dismissed.

28.8.2006

Pkb/72268-06


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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