Delhi District Court
Mrs. Anu Jain vs Mount Abu Public School on 23 July, 2012
1
IN THE COURT OF SH. O.P. GUPTA, DISTRICT JUDGE &
ADDL. SESSIONS JUDGE I/C (WEST), DELHI
Civil Appeal No. 11/2011
Unique ID No. 02401C0438202011
Mrs. Anu Jain
W/o Sh. Sanjay Jain
R/o D-7/137, Sector-6
Rohini, Delhi-110085 .......Appellant
Versus
1. Mount Abu Public School
Through its Principal
Sector-5, Pocket B-8
Rohini, Delhi-110085
2. Director of Education
Govt. of NCT of Delhi
Old Secretariat, Delhi .....Respondents
Date of Institution : 21.09.2011
Date of Arguments : 17.07.2012
Date of Order : 23.07.2012
JUDGMENT
1. The controversy involved lye in narrow compass. Unsuccessful plaintiff has come in present appeal against judgment and decree dated 18.08.2011 passed by Ld. Civil Judge. The suit was filed in 2003. The plaintiff had to undergo CA No.11/11 Page 1 of 14 2 agony of trial for 8 years in trial court.
2. The case as set up in the plaint was that Master Naman Jain son of the plaintiff was admitted in the defendant school in session 2001-02 in LKG and sum of Rs.4000/- was deposited as admission fee vide Receipt No. 4467 dated 08.06.2001. Said son of the plaintiff was promoted to UKG in session 2002-03 and to Class I in April 2003. Defendant suddenly, abruptly, arbitrarily and without any reason refused to admit the son of the plaintiff in class I and transfer certificate dated 21.04.2003 was handed over stating that plaintiff should take away her son to any other school. The defendant demanded a hefty sum of Rs.25,000/- from the plaintiff as a condition for continuing the plaintiff's son in the school. The plaintiff expressed her inability and helplessness in meeting with the said unjust and unlawful demand. The plaintiff had to undergo severe mental agony, financial loss, loss in reputation amongst her friends, colleagues, relatives and in the locality. She had to spend money for getting her son admitted in some other school in class I. She had to approach the higher authorities for getting CA No.11/11 Page 2 of 14 3 security refunded from the school. She wrote letter to the defendant but no response was given. She reported the matter to District Education Officer on 29.05.2003. She could not attend her social function and service activities properly. She suffered loss of huge salary, physical and mental torture, mental distress, shock, loss of reputation, loss of hospitality of friends and loss of social discredit. She is entitled to damages for nervous shock and anxiety. Her son also suffered mental shock and nervousness. She was planning to travel to North-East India for promotion of business of her employer but could not do so. She assessed consolidated damages of Rs.50,000/-. She served legal notice dated 06.08.2003 but to no use. However, she restricted her claim to Rs.1000/- by way of token damages.
3. The respondent filed a written statement raising preliminary objection that suit was liable to be dismissed under Order VII Rule 11 on the ground of non joinder of necessary parties. Plaintiff must have impleaded proper persons who were responsible for functioning, affairs and management of the school. Defendant was only a care taker and working upon CA No.11/11 Page 3 of 14 4 directions of the concerned persons. On merits it admitted that plaintiff deposited Rs.4,000/- being admission fee vide Receipt No. 4467 dated 08.06.2001. It admitted that son of the plaintiff was promoted to UKG and then to Class I. According to it, the plaintiff approached the defendant and demanded transfer certificate of her son to make him shifted to another school. It denied that it demanded Rs.25,000/- from plaintiff as condition for continuing the plaintiff's son in the school. The caution money of Rs.500/- was refunded vide cheque dated 01.06.2003. It denied that plaintiff suffered any nervous shock and anxiety or was entitled to damages. According to it, the plaintiff was not planning to trade to North-East India. The plaintiff failed to disclose name of the disease for which she and her family members took the treatment.
4. Due to inadvertence no issue was framed. It may be that issue was not framed as suit had been traveling from here to there. Initially it was filed in the Court of Senior Civil Judge from where it was sent to Judge Small Cause vide order dated 21.04.2004. From there it was transferred back to Court of Civil CA No.11/11 Page 4 of 14 5 Judge vide order dated 16.01.2007. In court of Judge Small Causes, issues are not framed. It was only after evidence of both the parties was completed that the following issue was framed on 25.04.2011.
ISSUE
i) Whether the plaintiff is entitled for recovery of damages on account of defamation as prayed for? OPP
5. Anyhow the same has not caused any prejudice to the parties. Both the parties knew the case of opposite party and they had led the evidence.
6. In support of her case the plaintiff examined herself as PW1 and filed her affidavit. The same is on the lines of plaint. In cross-examination dated 05.11.2004 she admitted that she was removed from her job in June 2003 where she was working as Sales Executive/Receptionist. Her cross-examination was deferred on 28.01.2005 and the same was closed as Nil, opportunity given. The same was reopened under orders of Hon'ble High Court and she was further cross-examined on CA No.11/11 Page 5 of 14 6 31.05.2007. This time she admitted that she got her son admitted in Abhinav Public School. She has not made mention regarding demand of Rs.25,000/- in complaint to District Education Centre copy of which is Ex.PW1/3. She was not able to produce any document regarding termination from job. She was not able to recollect the name of Physician consulted by her. She denied that for her own convenience she got her son admitted in Abhinav Public School.
7. As compared to it the defendant filed affidavit of its Principal Smt. Jyoti Arora which is Ex.D1. She was partly cross-examined on 16.08.2008. Her further cross-examination was deferred and she was directed to produce the application given by the plaintiff for transfer certificate. She did not do so and ultimately her cross-examination was closed vide order dated 22.04.2010. Since she has not been fully cross- examined, her statement cannot be read in evidence.
8. After going through the material on record and hearing arguments the Ld. Trial Court found that plaintiff has failed to prove her case of demand of money by the defendant or her CA No.11/11 Page 6 of 14 7 case of suffering mental agony. The Ld. Trial Court laid emphasis on the facts that plaintiff has not mentioned about demand of money in letter to District Education Officer and so the same was after thought. Thus, the suit was dismissed.
9. Aggrieved from the said findings, the plaintiff has preferred the present appeal. I have gone through the material on record and heard the arguments. The counsel for the respondent made certain submission regarding joining of respondent No.2 viz. Director of Education as a party in the appeal without making him party in the suit. He has already pointed out the variance in the relief claimed in the suit and the relief claimed in the appeal. In suit the plaintiff simply claimed Rs.1,000/- as token damages but in appeal she also claimed refund of Rs.4,000/- deposited by her on account of admission fee, directions to hold enquiry against respondent No.1 and take stern legal action.
10. I have given my anxious thought to the submission made by the counsel for the respondent and find that both the objections carry force. But the same are not sufficient to throw CA No.11/11 Page 7 of 14 8 the appeal. At the most respondent No.2 can be deleted from the array of parties and relief of refund of admission fee and hold enquiry can be denied. It is ordered accordingly.
11. The counsel for the respondent pointed out that appellant did not join either child or her father as a plaintiff. She alone could not file the suit. I am unable to impress myself with the arguments. The lost suffered by the child, father and mother is all alike. Any one of them could file the suit.
12. On merits both the parties tried to shift blame on the opposite side. They wanted to take advantage of weakness in the case of opposite party. The counsel for the respondent submitted that plaint is self contradictory. In para 5 of the plaint plaintiff stated that defendant refused to admit the son of plaintiff in Class I without any reason. In para 6 the plaintiff stated that reason of not admitting son of the plaintiff as demand of Rs.25,000/-. He also pointed out that plaintiff failed to prove her employment or loss of job on account of the present incident or loss of reputation. He also highlighted omission to make mention of demand of Rs.25,000/- in letter to CA No.11/11 Page 8 of 14 9 District Education Officer. He urged that plaintiff had no justification to restrict her claim to Rs.1000/- after assessing the same as Rs.50,000/-.
13. To my utter dismay the Ld. Trial Court persuaded itself with the aforesaid arguments. The entire approach of the Ld. Trial Court is perverse. It is not that only earning parents can suffer. There is no law which prohibits a litigant from restricting his claim. There are persons who fight for principle and not for money. After all there must be some reason why the defendant issued transfer certificate. The plaintiff was not insane so as to take transfer certificate without any reason. The only inference which could be drawn is that the reason was demand of Rs. 25,000/- by defendant and refusal by the plaintiff to pay the same.
14. The counsel for the respondent drew my attention towards letter dated 29.05.2003 which is Ex.PW1/3. It speaks of complaint against class teachers which were aggravated because of in action by Teacher In-Charge. When plaintiff approached the Principal and brought the matter to her CA No.11/11 Page 9 of 14 10 knowledge, response of the Principal was not as expectted by the parents from a Principal. Instead of patient hearing, the Principal asked plaintiff to collect transfer certificate of her son and take him to some another school. It was not possible to change the school in the middle of session.
15. The above facts may be one of the reason. But those facts cannot be read in isolation and in piecemeal. The same letter goes on to add that in April 2003 without her asking she was given transfer certificate and was asked to take her son to some other school. The same cannot be termed as an afterthought and it finds place in the letter written shortly after the transfer certificate.
16. Omission to mention demand of Rs.25,000/- in the said letter, may be accidental. The plaintiff was disturbed and might not have been able to recapture the whole reasons.
17. It is a matter of common knowledge that whenever parents request for issue of transfer certificate, the school insist upon an application for the purpose. This is what DW1 stated in CA No.11/11 Page 10 of 14 11 the last lines of her part cross-examination. She stated that application must be available in the record of the school and could be brought if time was given. But the said application had not seen the light of the day till date. This can lead to two inference. One is that plaintiff did not give any application and school issued transfer certificate of its own. The other is that application of the plaintiff contained all necessary avernments regarding harassment and demand of Rs.25,000/-. That is why the said application was not filed in Court. In either event the necessary consequence is that case of the plaintiff becomes more probable.
18. Now new plea of oral request for transfer certificate cannot be allowed to be taken for first time in appeal.
19. One important fact is that demand notice copy of which is Ex.PW1/5 was not replied by the defendant. The same must lead to irresistible inference that defendant admitted the avernments made in the notice. For this reliance can be placed on decision of our own Hon'ble High Court in Kalu Ram Vs Sita Ram 1980 Rajdhani Law Reporter (Note ) 44. In addition I CA No.11/11 Page 11 of 14 12 may mention that similar view was taken by our own Hon'ble High Court in Metropolis Travel & Resorthts (I) Pvt. Ltd. Vs Sumit Kalra & Anr. 98 (2002) DLT 573.
20. Simply because the son of the plaintiff got admission in another reputed school does not absolve the defendant of its liability to compensate the plaintiff for agony suffered by her. No school has a right to spoil the career of the student in this manner.
21. After all school is a pious institute meant for imparting education and not a place of extorting money. The Court can take note of the fact that people are reluctant to come to the Court. They rush to the Court only when the water crosses the head. Here is a brave parent who dared to knock the door of the Court for redressal of excesses committed by the school. Equally distressing is the fact that she was thrown away on technicalities instead of appreciating her pitiable condition.
22. The objection of the defendant in the written statement that plaintiff must have impleaded proper parties who are CA No.11/11 Page 12 of 14 13 responsible for functions, affairs and management of the school is to be mentioned for being rejected only. The plaintiff has sued the school and not any individual. School is institute, independent of its functionaries. It could be sued and had been rightly sued. Merely because the title shows that school was sued through Principal does not mean that Principal was sued.
23. Inhuman, indifferent, insensitive, callous, arbitrary, and highly negligent attitude of respondent in dealings with the appellant's case is writ large resulting in severe hardship, difficulties and trauma faced by appellant. For this compensation of Rs. 1,000/- is meager and negligible. Even financial loss which appellant has suffered in entire process would be many times more. To add to this financial misery, appellant has been made to spend further to contest the present case.
24. To sum up I find that judgment and decree of the Ld. Trial Court cannot be sustained. The appeal is accepted. The impugned judgment and decree is set aside. A decree of Rs. 1,000/- along with interest @ 12% per annum from the date of CA No.11/11 Page 13 of 14 14 filing the suit till realization and cost throughout is passed in favour of the plaintiff and against the defendant/respondent No.
1. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open Court on (O.P. GUPTA)
this 23rd day of July, 2012 DJ-III-CUM-ASJ I/C (W)
DELHI/23.07.2012
CA No.11/11 Page 14 of 14