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Sayam Ranjan Bhowmik Vs. Tripura Public Service Commission - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 58 of 1981
Judge
Acts Code of Civil Procedure (CPC) , 1908 - Sections 115 and 148A(3) - Order 39, Rules 1 and 2 Order 43, Rule 1
AppellantSayam Ranjan Bhowmik
RespondentTripura Public Service Commission
Appellant AdvocateA.M. Lodh, Adv.
Respondent AdvocateS. Deb, A. Chakraborty and S. Banerjee, Advs.
Prior history
S.M. Ali, J.
1. This revision petition has been filed against the order dated 19-12-81 passed by the learned Subordinate Judge, West Tripura at Agartala in Misc. Appeal No. 89 of 1981 against the order of ad interim injunction passed by the learned Munsiff, Agartala in Misc. Case No. 464 of 1981 arising out of T. S. No. 375 of 1981 restraining the defendant Tripura Public Service Commission (for short the Commission). Agartala from holding the personality test and recommending the names of the
Excerpt:
.....1 the petitioner states that the plaintiff filed a petition for temporary injunction before the learned munsiff under order 39, rules 1 and 2, c. the plaintiff and 6 other candidates for whom he filed the suit, however, came to court after having failed to obtain qualifying marks in written test for eligibility in personality test in the examination held by the defendant commission. also there is provision that the high court shall not, under this section, vary or refer any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where -(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of..........by the learned munsiff 'in no loss of time'. an order for registering misc. appeal was passed. the learned appellate court also found on record that there was an endorsement on the memorandum of appeal and the stay petition praying for stay of the order of ad interim injunction passed by the trial court, to the effect that 'the advocate for the respondent could not be traced out in the court compound and left for home at 3-15 p. m.' this part of the order relates to the appellant being required 'to put in requisite for serving notice upon the respondents.' the learned appellate court admitted the appeal in view of the submission as above and called for the records. he further ordered for issuing the notice upon the respondent fixing 21-12-81 for service return and for hearing the stay.....
Judgment:

S.M. Ali, J.

1. This revision petition has been filed against the order dated 19-12-81 passed by the learned Subordinate Judge, West Tripura at Agartala in Misc. Appeal No. 89 of 1981 against the order of ad interim injunction passed by the learned Munsiff, Agartala in Misc. Case No. 464 of 1981 arising out of T. S. No. 375 of 1981 restraining the defendant Tripura Public Service Commission (for short the Commission). Agartala from holding the personality test and recommending the names of the selected candidates in connection with the examination held by the Commission under Advertisement No. 4 of 1981 for recruitment to the posts of T. C. S. Grade-II. The suit was brought for declaration of the aforesaid examination as void and illegal and for perpetual injunction. On the petition for temporary injunction the learned Munsiff passed the ad interim order of injunction restraining the Commission from holding the personality test. Against this order an appeal was preferred on behalf of the defendant Commission before the learned Subordinate Judge, West Tripura at Affartala. The appeal was preferred on 19-12-81 and on the same date an application of caveat was admitted on behalf of the plaintiff before the learned Subordinate Judge. On 19-12-81 the learned Subordinate Judge passed an order regarding certified copy of the impugned order of the trial Court. He found that no certified copy was filed along with memorandum of appeal. However, it was recorded in the order that the appellant undertook to submit the certified copy of the order dated 18-12-81 passed by the learned Munsiff 'in no loss of time'. An order for registering Misc. Appeal was passed. The learned appellate Court also found on record that there was an endorsement on the memorandum of appeal and the stay petition praying for stay of the order of ad interim injunction passed by the trial Court, to the effect that 'the Advocate for the respondent could not be traced out in the Court compound and left for home at 3-15 P. M.' This part of the order relates to the appellant being required 'to put in requisite for serving notice upon the respondents.' The learned appellate Court admitted the appeal in view of the submission as above and called for the records. He further ordered for issuing the notice upon the respondent fixing 21-12-81 for service return and for hearing the stay matter. The learned appellate Court also felt necessity of a notice to be served upon the caveator. The learned Court, however, after hearing the submissions made on behalf of the appellant passed an an interim order staying operation of the impugned order dated 18-12-81 till 21-12-81 as a special case for the ends of justice'.

2. The learned counsel for the peti-tioner in this revision petition firstly argued that the appeal is not maintainable under Order 43, Rule 1 (r), C.P.C. This provision of Order 43 provides that appeal lies from an order under Rules 1 and 2 etc. of Order 39, C.P.C. The learned counsel for the revision-petitioner pointed out that the order appealed against fails under Rule 3 of Order 39, C.P.C, for which there is no provision for appeal. The learned counsel for the Commission submitted that the order passed by the trial Court regarding temporary injunction was passed under Rules 1 and 2 of Order 39, C.P.C. and that being so the order is appealable. For shortening discussion on the point I would like to refer to the petition in this case wherein under para 1 the petitioner states that the plaintiff filed a petition for temporary injunction before the learned Munsiff under Order 39, Rules 1 and 2, C.P.C. So it is admitted by the petitioner that the order passed by the learned trial Court is appealable. My finding is also that the order is appealable. The learned counsel for the petitioner in this revision petition submitted that no certified copy of the impugned order has been filed along with the memorandum of appeal for which the appeal is not maintainable. In support he referred to the rulings--(1) reported in AIR 1929 Lah 170. Moham-mad Hayat Haji Mohammad Sardar v. Commr., Income-tax, Punjab & N. W. F. P.; (2) AIR 1923 Mad 482, Sundaram Iyer v. Muthuramalinga; (3) AIR 1971 J & K 41, Badrinath v. Hari Bhagat: (4) AIR 1967 Punj 204, Ram Nath v. Kan-hya Lal and (5) AIR 1961 SC 832, Jagat Bhish v. Jawahar Lal. As earlier stated it appears that the learned appellate Court on 19-12-81 accepted the submission of the learned counsel for the appellant regarding time to file the certified copy. However, this is to be decided by the appellate Court. I leave the matter there. This point may be agitated there. It is found that an application of caveat was filed by this petitioner on 19-12-81 and the record shows that attempt was made to serve notice regarding the appeal on the caveator through his appointed counsel and that the learned counsel could not be traced out in the Court compound (he having left the Court just after 3 P. M.). So it is found that on this date no notice was served either on the caveator personally or on his appointed lawyer.

3. The plaintiff brought the Title Suit No. 375 of 1981 on behalf of himself and some others who appeared in the written test conducted by the Commission for the purpose of recruitment to the T.C.S. Grade II. The plaintiff and 6 other candidates for whom he filed the suit, however, came to Court after having failed to obtain qualifying marks in written test for eligibility in personality test in the examination held by the defendant Commission. On behalf of the plaintiff prayer was made for a temporary injunction under Order 39, Rules 1 and 2, C.P.C. restraining the Commission from holding personality test with regard to the candidates in the examination. It is to be noted that the provisions of Section 80(1), C.P.C. were not complied with prior to filing of the suit. However, the learned Munsiff granted leave as provided under Sub-section (2) of Section 80, C.P.C. He proceeded further on granting the temporary injunction prayed for on 18-12-81 the learned counsel Mr. Lodh filed application of caveat under Section 148A, C. P. C. before the appellate Court and on filing the appeal against the order of the learned Munsiff the appellants also prayed for stay of the impugned order of injunction. The learned Court has stayed the impugned order of injunction for the period up to 21-12-81 and this order was passed on 19-12-81. On the next hearing date namely on 21-12-81 the learned appellate Court recorded that the learned counsel for the caveator refused to accept the notice issued under Sub-section (3) of Section 148A. This position is also admitted by the learned counsel for the revision-petitioner during his argument. The learned counsel while admitting refusal of the notice further says that the notice was addressed to the caveator -- C/O. The learned counsel Mr. A. M. Lodh. The appellate Court found on 21-12-81 that the caveat petition was not in form and not duly stamped. He further writes in the order dated 21-12-81 'the said petition has, however, been registered, with a direction to file deficit court-fee of Rs. 9/- and receipts showing service of notice upon the opposite party fixing 21-12-81 for steps'. But no steps having been taken the learned Court dismissed the caveat for default. By an order of this date after hearing the learned Advocate for the appellant an order for continuation of the stay order passed by him on 19-12-81 regarding temporary injunction passed by the learned Munsiff was passed. Now this revision petition is against the order dated 19-12-81. The order dated 21-12-81 remains unchallenged.

4. The scope of Section 115, C.P.C. is very much limited. What Section 115 C. P. C. provides for is jurisdictional matter of the Court below. No interference can be made under this section even if there be an error of law generally the procedural aspect of the proceeding. If all the formalities have been complied with and there is no breach of any law the order cannot be a subject-matter or revision under Section 115, C. P. C. So our attention should in this case be focussed on the due formalities non-observance of which would prejudice the other side. As said before unless there is any breach of law or breach of procedural matter this Court will not go in for interference with the order. Also there is provision that the High Court shall not, under this section, vary or refer any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where -- (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. So we should proceed to decide the matter involved in this petition keeping in view the aforesaid principles of law.

5. The principal grievance of the plaintiff-petitioner is that despite the caveat petition on his behalf he was not served with a notice as provided under Sub-section (3) of Section 148A and that an ex parte order was made by the learned appellate Court on 19-12-81 behind his back. The learned counsel for the petitioner, therefore, argued that on this ground the impugned order was quite beyond the jurisdiction of the appellate Court. Now admittedly the caveat was filed on 19-12-81 and the appeal was also filed on the same date. On this date an ad interim stay order was passed ex parte by the Court fixing 21-12-81 for hearing the stay matter. On 21-12-81 the Court found that proper steps, as quoted above, were wanting from the caveator and so he dismissed the caveat application for default and continued the order of stay dated 19-12-81. Therefore, the question of caveat went out of the picture on 21-12-81 though it was very much there on 19-12-81 and still before 21-12-81. The order of 21-12-81 has not been assailed. So we have not to deal with the order dated 21-12-81 it not being the subject matter of this revision petition.

6. This leads us to the question whether the order dated 19-12-81 was wrong enough to come under the searchlight of Section 115 of the C.P.C.

The learned counsel for the defendant opposite party argued that the order dated 19-12-81 regarding stay merged into the order dated 21-12-81, which is not challenged in this Court. No doubt, the order of stay passed on 19-12-81 lost its separate identity and existence as soon as the order dated 21-12-81 was passed inasmuch as the order dated 19-12-81 has its span of life up to 21-12-81 only. When an ad interim interlocutory order merges into an order having longer duration any challenge of the earlier order must be taken to be infructuous. The learned counsel Mr. Lodh has to say that the impugned order is the basis of the latter order and therefore, if the basis is collapsed the entire superstructure thereon also gets collapsed. Therefore, in his view it has to be decided whether the order dated 19-12-81 was wrong. But as said before the earlier order of stay expired and a fresh order appeared on 21-12-81 and it can be said that the order dated 19-12-81 took rebirth with a different tenure of existence. Suppose the order dated 21-12-81 did not come into existence, then in that case the earlier order would have lost its life on 21-12-81 and there (Sic) plaintiff-petitioner. So unless the order dt. 21-12-81 is assailed no relief can be extended to the petitioner.

7. However, the learned counsel for the petitioner submitted that the notice has to be served on the party as according to him after filing of the caveat petition the particular counsel who filed the caveat might cease meanwhile to represent the caveator. The learned counsel for the opposite party adverted to Order 3, Rules 2. 3 and 5, C.P.C. Rule 5 of Order 3, C.P.C. provides for service of process on the appointed advocate of the party. So I find that though the notice was addressed to the caveator, c/o, the learned Advocate it could be legally served on the learned Advocate of the caveator and as said before he refused to accept service of the notice. The argument of the learned counsel for the petitioner would have force had the case been such that subsequent to the caveat the plaintiff engaged another lawyer or counsel with intimation to the Court. But so long as the learned Advocate remains on record representing the party he has to represent the party for the matter for which he has been appointed by the party. The learned counsel does not say that he ceased to represent the party and hence he refused to receive the notice. Still during the arguments be does not say that he did not represent the caveator. In this case, therefore, the provisions of Rule 5 of Order 3 were quite applicable. Besides the appellate Court did not pass any absolute order on 19-12-81 for the reason though not recorded, that it appeared to him that the procedure of caveat had to be observed prior to passing of any absolute order in this connection. Subsequently, however, it was found that the caveat application was not in order.

It has to be observed in passing that the learned Munsiff did not observe the provision of Section 82 (2), C.P.C. while passing the temporary injunction. It is also found that an earlier suit on the said subject matter was still pending in the Court of the Munsiff and that just after a few days when an ad interim injunction order passed by the learned Munsiff in the earlier suit, was set aside by the appellate Court, a second suit was filed during pendency of the earlier suit and a similar temporary injunction was passed by the same Munsiff, which is the subject matter of this revision petition. Without making any observation as to the legality/propriety of the subsequent suit or conduct of the learned Munsiff in this connection I like to leave the matter here.

8. The result is that the revision petition is rejected and the order dated 21-12-81 passed by the learned appellate Court which is not challenged here remains undisturbed and it shall continue. The case is disposed of accordingly, The rule is discharged. Ad interim stay order passed by this Court is vacated. There will be no order as to costs.


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