Allahabad High Court
Smt.Maya Devi W/O Late Krishna Pal Singh ... vs The State Of U.P.Through Prn.Secy.Home ... on 16 January, 2012
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 18 Case :- SERVICE SINGLE No. - 4130 of 2009 Petitioner :- Smt.Maya Devi W/O Late Krishna Pal Singh And Another Respondent :- The State Of U.P.Through Prn.Secy. Home And Others Petitioner Counsel :- Amit Bose Respondent Counsel :- C.S.C.,Dipak Seth Hon'ble Anil Kumar,J.
Heard Sri Amit Bose, learned counsel for petitioners and Sri Badrul Hasan, learned Standing Counsel and perused the record.
Facts in brief of the present case are that the father of petitioner No. 2 and husband of petitioner No. 1, Late Sri Kishna Pal Singh while working as Constable Armourer in U.P. Police, placed under suspension by order dated 11.05.2003, dismissed from services by order dated 12.08.2003 passed by Senior Superintendent of Police, Aligarh.
Aggrieved by the order dated 12.08.2003, Sri Krishna Pal Singh approached this Court at Allahabad by filing Writ Petition No. 38957 of 2003 (Krishna Pal Singh Vs. State of U.P. and another). On 03.09.2003, an interim order passed, quoted hereinbelow:-
"The petitioner is only being tried and apparently has not yet been convicted. Therefore the dismissal order dated-12.8.2003 is wholly misconceived. Such an order could have been passed after departmental enquiry and not otherwise. Standing counsel may therefore file counter affidavit within one month. List thereafter.
In the meantime the impugned order dated 12.08.2003 will remain stayed."
Accordingly, Sri Krishna Pal Singh started working and discharging his duties on the post in question. Further the said writ petition came up before this Court on 01.08.2006, an order passed, quoted as under:-
"List is revised.
No one is appeared for petitioner.
The writ petition is dismissed in default.
Interim order, if any, is vacated"
As per submission made by Sri Amit Bose, learned counsel for petitioner that the order dated 01.08.2006 is neither in the knowledge of Sri Krishna Pal Singh nor in the knowledge of department, as such he was allowed to work and discharge his duties in spite of the order dated 01.08.2006, thereafter, on 07.12.2008, suffered paralytic attack, died on 24.12.2008.
On the abovesaid factual background, the present writ petition has been filed by the petitioners, namely, Smt. Maya Devi (wife) and Sri Vijendra Pratap Singh (son of the deceased Krishna Pal Singh) with the following main prayer:-
(i)issue or pass a writ, direction and/or order in the nature of mandamus directing the respondents hereto to immediately pay to the petitioner no. 1 hereto the entire salary and allowances payable to the Late Krishna Pal Singh for the period he was under suspension from 11.05.2003 to 28. 02.2007, release all the increments payable to the Late Krishna Pal Singh during the aforesaid period of his suspension together with the monetary benefits, if any due as a result of sanction of the said increments, the amount of medical reimbursement payable to Late Krishna Pal Singh, the family pension payable to the petitioner no. 1 hereto as a result of death of Late Krishna Pal Singh and the gratuity payable to Late Krishna Pal Singh, and,
(ii)issue or pass a writ, direction and/or order in the nature of mandamus directing the respondents hereto to immediately consider the petitioner no. 2 hereto for compassionate appointment under the provisions of the U.P. Dependents of Government Servants (Dying in Harness) Rules, 1974 in place of his late father, Sri Krishan Pal Singh."
Submissions as made by Sri Amit Bose, learned counsel for petitioner in nut shell are that once dismissal order dated 12.08.2003 passed by Senior Superintendent of Police, Aligarh has been stayed by this Court at Allahabad by order dated 03.09.2003 passed in Writ Petition No. 38957 of 2003 (Krishna Pal Singh Vs. State of U.P. and another), the petitioner was allowed to work and discharge his duties and died on 24.12.2008. So, even if the said writ petition was dismissed in default and interim order granted earlier in favour of late Sri Krishna Pal Singh has been vacated by order dated 01.08.2006, the said fact will not come in the way of the present petitioners to file the present writ petition by them as the said fact is neither a legal impediment nor res judicata thereby creating a bar in the way of the present petitioners to approach this Court by filling instant writ petition for the relief as claimed by them, and this Court in spite of the said fact, in the instant writ petition can consider and decide the validity of the impugned order dated 12.08.2003 by which late Sri Krishna Pal Singh was dismissed from service as his case was not decided on merit by this Court at Allahabad in Writ Petition No. 38957 of 2003 (Krishna Pal Singh Vs. State of U.P. and another) which he filed against his dismissal order. In support of his argument he places reliance on the judgment of the Apex Court in the case of Shiv Shankar Prasad Shah and others Vs. Baikunth Nath Singh and others, 1969 (1) SCC 718, para No. 4 and 8, held as under"-
"Para No. 4 - We shall first take up the contention that the objection taken by the judgment debtors' is barred by principles of res judicata. Though at one stage, learned Counsel for the appellants-decree holders attempted to bring the case within Explanation 5, s. 11, Civil Procedure Code,he did not pursue that line of argument but tried to support his contention on the broader principles of res judicata. The real question for decision in this case is whether the dismissal of Misc. cases Nos. 94 and 110 of 1959 for default of the judgment debtors can be said to be a final decision of the court after hearing the parties. Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the court. A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action. If it was otherwise there was no need for the legislature to enact rule 9, Order 9, Civil Procedure Code which in specific term say that 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. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee, of the Privy Council in Maharaja Radha Parshad Singh v. Lal Sahab Rai and Ors.(1). Therein the Judicial Committee observed thus :
"None of the questions, either of fact or law, raised by the pleadings of the parties was heard or determined by the Judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the meaning of the Civil Procedure Code. It must fall within one or other of the sections of chapter VII of the Code; in the present case it is immaterial to consider which, the severest penalty, attached to such dismissal in any case being that the plaintiff cannot bring another suit for the same relief."
"Para No. 8 - There is no dispute that the property mortgaged was an Estate within the meaning of s. 2(1) and the notification issued under s. 3 covered the entirety of the Estate. But what was urged on behalf of the appellants is that what had vested in the State was the non-bakasht lands as well as the proprietory interest in the Bakasht lands and hence the Bakasht lands do not have the protection of s. 4(d); Consequently it is not necessary for them to exclusively proceed under s. 14.
And in the case of Bajrangi Lal Shivchandrai Ruia Vs. Shashikant N. Ruia and others (2004) 5 SCC 272, para No. 41 and 42, Hon'ble the Apex Court held as under:-
"Para No. 41 - It is not possible to accept that the principle of res-judicata will apply to bar the appeal. Section 11 of the CPC would bar the Court from trying any suit or issue in which the matter "directly and substantially in issue" between the same parties or between the parties under whom they or any of them claim, litigating under the same title in a Court competent to try such subsequent suit or suit in which such issue has been subsequently raised, has been "heard and finally decided by such Court". In the present case, Bajaranglal and Shyamsunder were defendants in the Original Suit No. 118 of 1973. The suit was dismissed and the plaintiff Satyavati carried an appeal to the Division Bench. In the appeal, both Bajranglal and Shyamsunder were respondents. The Division Bench, reversed the Single Judge's judgment and decreed the suit by its judgment. As the respondents in the appeal before the Division Bench both Bajranglal and Shyamsunder were aggrieved by the decree against them. The present appellant Bajranglal filed SLP No. 8425/93 on 27.5.1993. while Shyamsundar filed his appeal No. SLP 18492/93 on 17.12.1993.
Para No. 42 - Leave was granted in Bajranglal's appeal on 4.10.1993 while leave was granted in Shyamsundar's case on 17.12.1993. Subsequently, Bajranglal's appeal was numbered as Civil Appeal No.5293 while Shyamsundar's appeal was numbered as Civil Appeal No.7490/93. Shyamsundar's appeal was dismissed for default for non-removal of office objections on 15.1.2000. Thus, it is obvious that both in the matter of filing the SLP and granting of leave, Bajranglal's appeal was earlier and Shamsundar's was later in time. In these circumstances, we are unable to accept the contention that an order dismissing a subsequent appeal for default can operate as res-judicata in respect of an earlier appeal. Neither Section 11 of the CPC, nor any principle derivable therefrom, would bar the appeal as contended by the respondents. The contention is misconceived and we see no merit in the contention. In our judgment, the appeal is perfectly maintainable."
Sri Amit Bose, learned counsel for petitioner also argued that in view of the provisions as provided under Order IX Rule 4, CPC, in spite of the order of dismissal dated 12.08.2003 by which Late Sri Krishna Pal Singh has been dismissed from service, the present petitioners can agitate the validity of the dismissal order and press for the reliefs as claimed by them in the present writ petition. In support of his argument, he places reliance on the judgment given by the Apex Court in the Case of State of Uttar Pradesh and another Vs. Jagdish Sharan Agrawal and others (2009) 1 SCC 689, Last argument advanced by Sri Amit Bose, learned counsel for petitioners is that the order dated 12.08.2003 by which Sri Krishna Pal Singh has been dismissed is a non-est order, passed without holding any inquiry whatsoever, as such, this Court in the present writ petition can adjudicate and decide the validity of the said impugned order, in view of the Rule 9(2) of the Uttar Pradesh Retirement Benefit Rules, 1961. In this regard, he relies on the judgment of Hon'ble the Supreme Court in the case of State of Haryana Vs. Haryana Cooperative Transport Ltd. and others, 1977(1) SCC 271 :-
"The mere circumstance that the 1st respondent did not in so many words ask for the writ of quo warranto cannot justify the argument that the appointment was being challenged collaterally in a proceeding takes to challenge the award. Considering the averments in the writ petition, it seems to us clear that the main and real attack on the award was the ineligibility of Shri Gupta to occupy the post of a Judge of the Labour Court, in the discharge of whose functions the award was rendered by him. The relief of certiorari asked for by writ petition was certainly inappropriate but by clause (c) of paragraph 16, the High Court was invited to issue such other suitable writ, order or direction as it deemed fit and proper in the circumstances of the case. There is no magic in the use of a formula. The facts necessary for challenging Shri Gupta's appointment are stated clearly in the writ petition and the challenge to his appointment is expressly made on the ground that he was not qualified to hold the post of a Judge of the Labour Court."
Accordingly, Sri Amit Bose, learned counsel for petitioner submits that this Court can set aside the order of dismissal dated 12.08.2003, passed without jurisdiction by Senior Superintendent of Police, Aligarh, and grant relief as claimed by the petitioners in the instant writ petition in their favour.
Sri Badrul Hasan, learned State Counsel on the other hand submits that initially Sri Krishna Pal Singh has challenged the order dated 12.08.2003 by which he has been dismissed from services before this Court at Allahabad, an interim order was granted in his favour and allowed to work and discharge his duties on the post by order dated 22.09.2003 passed by Senior Superintendent of Police, Aligarh, however, subsequently, when the said writ petition was dismissed in default and interim order was vacated by order dated 01.08.2006 then in that circumstances, the order of dismissal will automatically come into operation, and even if Sri Krishna Pal Singh was allowed to work and discharge his duties on the post in question and died on 24.12.2008, the present petitioners who are the legal heirs of the deceased Sri Krishan Pal Singh are not entitled for any relief as claimed by them in the present case, liable to be dismissed. In support of his argument, learned State counsel has placed reliance on the judgments of the Apex Court, in the case of Shiv Shankar And others Vs. Board of Directors, U.P.S.R.T.C. And another, 1995 Supp (2) SCC 726, in the case of N. Mohan Vs. State of Kerala and others, (1997) 2 SCC 556 and in the case of Amarjeet Singh and others Vs. Devi Ratan and others, (2010) 1 SCC 417.
I have heard learned counsel for parties and gone through the records as well as judgments cited by them.
In order to decide the controversy involved in the present case, I feel appropriate to consider the meaning of the word "stay order" first.
In the law Lexicon (at page 180) "stay order" is defined as under:-
"The stay of operation of an order only means that the order which has been stayed would not be operative form the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. Shree Chamundi Mopeds Ltd. V. Church of South India Trust Association, Madras, AIR 1992 SC 1439, 1444 (Constitution of India Art. 226) In Words and Phrases (permanent Edition) Vol -40 page 374, the "stay order" is defined as"
"A "stay order" or a "stay of proceedings," is a stopping, the act of arresting a judicial proceeding by the order of a court or the temporary suspension of the regular order of proceedings in a cause by direction or order of the court."
Hon'ble the Supreme Court in the case of Shree Chamundi Mopeds Ltd. V. Church of South India Trust Association, Madras, (1992) 3 SCC 1, has interpreted the word stay order in the following terms:
"While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence."
Hon'ble the Apex Court in the case of Kanoria Chemicals & Industries Vs. U.P. State Electricity Board, (1997) 5 SCC 772 explained the meaning of the word stay order as under:-
"It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim order of the court."
Hon'ble the Apex Court in the case of B.P.L. Ltd. and ors. Vs. R. Sudhakar and ors., 2004 (7) SCC 219, after placing reliance on its earlier judgment in the case of Ravi S. Naik v. Union of India and Others (1994) Supp (2) SCC641, in para No. 14 held as under:-
" Dealing with the staying of the operation of the order of disqualification, passed by the Speaker of the Assembly in regard to two members of the House, this Court held that the order of disqualification made by the Speaker dated 13.12.1990 was not operative and consequently it could not be said that they were not members of Goa Assembly. The Court, looking to the terms of the interim order and its effect on the disqualification of the members on the relevant date, held, it is settled law that an order, even though interim in nature, is binding till it is set aside by a competent court". Similarly, in the present case also looking to the terms of the interim order granted by the High Court staying the very operation of order of reference it could not be said that dispute was pending before the Tribunal on the relevant date, viz., the date on which the workmen were dismissed from service."
In the case of State of Gujrat and others Vs. Dilipbhai Shaligram Patil, (2006) 8 SCC 72, Hon'ble the Apex Court in para Nos. 5 and 7 held as under:-
"Para No. 5 - It is well settled that an order granting pending disposal of the writ petition/suit or other proceedings, comes to an end with the disposal of the substantive proceedings and that it is the duty of the Court in such a case to put the parties in the same position, they would have been but for the interim orders of the Court. Any other view would result in the act or order of the court prejudicing the party for no fault of his and would also mean rewarding writ petitioner in spite of his failure. Any such unjust consequence cannot be countenanced by the courts. [(See Kanoria Chemicals and Industries Ltd. v. U.P. State Electricity Board and Ors. 1997 (5) SCC 772)] "Para No. 7 - Merely because an interim order had been passed pursuant to which reinstatement had been done, that cannot be a ground for allowing relief. (See Union of India v. Narender Singh (2005 (6) SCC 106).
In the case of Kalabharati Advertising Vs. Hemant Vimalnath Narichania and others (2010)9) SCC 437, Hon'ble the Apex Court in para Nos. 15 and 16 held as under:-
"Para No. 15 - No litigant can derive any benefit from the mere pendency of a case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. (vide: Dr. A.R. Sircar v. State of Uttar Pradesh & Ors., 1993 Supp. (2) SCC 734; Shiv Shanker & Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Supp. (2) SCC 726; the Committee of Management, Arya Inter College, Arya Nagar, Kanpur & Anr. v. Sree Kumar Tiwary & Anr., AIR 1997 SC 3071; GTC Industries Ltd. v. 10 Union of India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corporation v. C.L. Mishra, (2005) 8 SCC 423).
Para No. - 16 - In Ram Krishna Verma & Ors. v. State of U.P. & Ors., AIR 1992 SC 1888, this Court examined the issue while placing reliance upon its earlier judgment in Grindlays Bank Limited v. Income Tax Officer, Calcutta & Ors., AIR 1980 SC 656 and held that no person can suffer from the act of the Court and in case an interim order has been passed and the petitioner takes advantage thereof, and ultimately the petition stands dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized.
Thus, the position which is emerged out is that by merely passing of a stay order the operation of the order which is under challenge is kept in abeyance/non-operative from the date when the stay order is passed but it does not mean that the effect of the said order is nullified or wiped out and stay order finally merged in the final decision given in the matter in question in which the same is passed.
Now, reverting to the facts of the present case, admittedly, Sri Krishna Pal Singh (now deceased) working on the post of Constable Armourer in U.P. Police, dismissed from service by order dated 12.08.2003 passed by Senior Superintended of Police, Aligarh, challenged the same by filing Writ Petition No. 38957 of 2003 (Krishna Pal Singh Vs. State of U.P. and others), initially an interim order was granted on 03.09.2003, staying the operation of the order dated 12.08.2003 thereafter the petitioner was reinstated in service, however, the said writ petition was dismissed in default and interim order granted was vacated by order dated 01.08.2006. But, in spite of the said fact, petitioner was allowed to work and discharge his duties, thereafter, suffered severe attack on 07.12.2008, died on 24.12.2008.Thus, once the Writ Petition No. 38957 of 2003 filed by Sri Krishna Pal Singh(deceased) challenging the dismissal order has been dismissed in default and the interim order granted initially in his favour on 03.09.2003 was vacated by order dated 01.08.2006 passed by this Court at Allahabad, the natural consequence of the same is that the order of dismissal will come into operation. As per the law as laid down in the case of Shiv Shankar And others Vs. Board of Directors, U.P.S.R.T.C. And another, 1995 Supp (2) SCC 726, Hon'ble the Apex Court as under:-
"At the same time, once the petition was dismissed without any adjudication on merits the effect of dismissal was that interim order stood merged in the final order and the order of absorption stood nullified."
In the case of N. Mohan Vs. State of Kerala and others, (1997) 2 SCC 556, Hon'ble the Apex Court held as under:-
"The interim order is subject tot the result of outcome of the final adjudication. If the petitioner is not successful int eh final decision, the interim order would stand set aside. So appointment by interim order does not create any right nor does the petitioner get any right to regularisation on that basis."
In the case of Amarjeet Singh and others Vs. Devi Ratan and others, (2010) 1 SCC 417, Hon'ble the Apex Court held as under:-
"No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case of if the writ petition is ultimately dismissed, the interim order stands nullified automatically."
In view of the abovesaid facts, once the writ petition No. 38957 of 2003, filed by Sri Kirshan Pal Singh (now deceased) challenging his dismissal order was dismissed in default and interim order was vacated and the said position is existing today, as such the argument made in this regard by learned counsel for petitioner got no force, rejected.
So far as the argument as advanced by the learned counsel for petitioner that even if the writ petition No. 38957 of 2003 filed by Sri Krishan Pal Singh (now deceased) has been dismissed for want of prosecution then the same will not amount to "res judicata" as the claim as agitated by Sri Krishan Pal Singh in the writ petition No. 38957 of 2003 has not been adjudicated on merit, so the petitioners are entitled to challenge the order of dismissal dated 12.08.2003 and the relief claimed by them may be adjudicated and decided on merit.
Section 11 of the Code of Civil Procedure, 1908, embodies the doctrine of res judicata or the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. It enacts that once the matter is finally decided by a competent court, no party can be permitted to reopen it in a subsequent litigation. In absence of such a rule there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses. (See - Pandurang Vs. Shantibai, 1989 Supp (2) SCC 627, Supreme Court Employees' Welfare Association Vs. Union of India, (1984) 4 SCC 187, LIC of India Vs. India Automobiles (1990) 4 SCC 286, Sushil Kumar Vs. Govind Ram (1990) 1 SCC 193) Under the Roman Legal Maxim "ex-captio res judicata" which means "one suit and one decision is enough for any single dispute.
In the case of Lachmi Vs. Bhulu, AIR 1927 Lah 289, it was held that res judicata means "a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto. The doctrine of res judicata amounts to this, that a cause of action once finally determined without appeal between the parties one the merits by a competent tribunal cannot afterwards be litigated by new proceedings either before the same or any other tribunal.
The doctrine of res judicata has been explained by Supreme Court in the case of Satyadhyan Ghosal Vs. Deorajin Debi, AIR 1960 SC 941, in the following words:
"The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. (See also Ashok Kumar Vs. National Insurance Company (1998) 4 SCC 361) Thus the doctrine of res judicata is based on three maxims:
(1) nemo debet bis vexari pro una et eadem causa: no man should be vexed twice for the same cause:
(2) interest republicae ut sit finis litium: it is in the interest of the State that there should be an end to a litigation: and (3) res judicata pro veritate occipitur: a judicial decision must be accepted as correct.
In Sarguja Transport service Vs. State Transport Appellate Tribunal, 1987 (1) SCC 5, the Tribunal set aside permit granted in favour of the petitioner by the Regional Transport Authority to run a stage-carriage. The petitioner filed a writ petition under Article 226 of the Constitution in the High Court of Madhya Pradesh against the order passed by the Tribunal but withdrew the same. Then once again the petitioner filed a fresh petition in the High Court under Article 226 but the High Court dismissed it holding that after the withdrawal of the first petition, the second petition was not maintainable. The petitioner approached the Supreme Court. And observed that "The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII.
In view the said facts, the argument as advanced by the learned counsel for petitioners that the dismissal of Writ Petition No. 38957 of 2003 (Krishna Pal Singh Vs. State of U.P. and another) by this Court at Allahabad by an order dated 01.08.2006 in default by which late Sri Krishna Pal Singh has challenged his dismissal order will not amount to "res judicata" in the present case is wholly misconceived and incorrect argument, keeping in view the said fact and also that as per record of the present case, the petitioners have not challenged the order of dismissal of Sri Krishna Pal Singh from service, is misconceived, contrary to law, rejected.
Next argument advanced by learned counsel for petitioner that in view of the provisions as provided under Order IX Rule 4 CPC, the present writ petition filed by petitioners for the relief as claimed by them is concerned can be adjudicated and decided on merit and they are not debarred from filing the present writ petition for redressal of their grievance.
In order to adjudicate argument, it is necessary to go through the provisions as provided under Order IX Rule 4 CPC which is quoted hereinbelow:-
"Order IX Rule 4 - Plaintiffs may bring fresh suit or Court may restore suit to file - Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."
From the perusal of the provisions as provided under Order IX Rule 4 CPC, it is clear that the said provision will came into operation if a suit filed by the plaintiff is dismissed under Order 9 Rule 2 or Rule 3, then he can bring a fresh suit or he may apply for an order to set aside the dismissal if there is sufficient cause, subject to law of limitation, thus, in order to invoke the provisions of Order IX Rule 4 CPC, the mandatory condition is the existence of the provisions as provided under Order IX Rule 2 or 3 CPC, the same are quoted hereinbelow:-
"Rule 2 - Dismissal of suit where summons not served in consequence of plaintiffs failure to pay costs-- Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee of postal charges, if any, chargeable for such service or to present copies of the plaint or concise statements, as required by rule 9 of order VII, the Court may make an order that the suit be dismissed :
Provided that no such order shall be made, if notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer .
Rule 3 - Where neither party appears, suit to be dismissed-- Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed."
In the instant case, none of the conditions as mentioned Under Rule 2 Or Rule 3 of Order IX CPC exists, as such the petitioners cannot take the aid and advantage of Order IX Rule 4 CPC, for filling the present writ petition for redressal of their grievances, thus, the the argument as advanced by learned counsel for petitioners that in view of the provisions as provided under Order IX Rule 4 CPC, the petitioners for redressal of their grievances filed present writ petition before this Court has got no force, rejected (See. Umadutt Vs. Additional Judge, Pipri,, AIR 2002 (Allahabad) 276).
Last argument as advanced on behalf of the petitioner by Sri Amit Bose, learned counsel for petitioner that in view of the provisions under Rule 9 (2) of Uttar Pradesh Retirement Benefits Rules, 1961, present writ petition filed by the petitioners for relief as claimed by them is maintainable and this court may consider and adjudicate the same on merit.
Rule 9 (2) of Uttar Pradesh Retirement Benefits Rules, 1961 :-
"No gratuity or family pension may be granted under Parts II and III if the officer was dismissed or removed for misconduct, insolvency or inefficiency. Compassionate grant may, however, be made under these parts in accordance with Article 353 of the Civil Service Regulations."
From the perusal of the said rule, it is crystal clear that if an officer is dismissed or removed for his conduct etc. then in that circumstances, he will not be entitled for any gratuity or family pension. Thus, as per the admitted facts of the present case Sri Krishna Pal Singh has been dismissed from his service by order dated 12.08.2003 passed by Senior Superintended of Police, Aligarh. Against the said matter, the writ petition filed by him was also dismissed by order dated 01.08.2006.
In view of the said fact, I am of the considered opinion that neither petitioner No. 1 is entitled for the relief as claimed on her behalf in respect to payment of family pension nor petitioner No. 2 is entitled to get compassionate appointment under Dying-in-Harness Rules as claimed by him, accordingly the argument as advanced by learned counsel for petitioners and judgment cited are misconceived, no force, rejected.
For the foregoing reasons, the writ petition lacks merit and is dismissed.
No order as to costs.
Order Date :- 16.01.2012 Ravi/