Gujarat High Court
Mithabhai Panchabhai Dhedhi vs Navnirman Kelavanit Mandal Trust on 18 December, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 349 of 2008
With
R/APPEAL FROM ORDER NO. 350 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
MITHABHAI PANCHABHAI DHEDHI
Versus
NAVNIRMAN KELAVANIT MANDAL TRUST & 3 other(s)
==========================================================
Appearance:
MR VIMAL PATEL, ADVOCATE FOR VMP LEGAL(7210) for the Appellant(s)
No. 1
PARTY IN PERSON(5000) for the Respondent(s) No. 2,4
SERVED BY AFFIX. (R) for the Respondent(s) No. 1,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 18/12/2023
CAV JUDGMENT
1. Both the above appeals arise out of common judgment and decree passed in Regular Civil Appeal No.12 of 1997 and Regular Civil Appeal No.13 of 1997.
Page 1 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined
2. Both the appeals involve similar questions of law and facts and therefore, for the sake of convenience and as agreed by learned counsel for the respective parties, this Court deem it fit to dispose of these Appeals from Order by this common judgment.
3. The appellants are original plaintiffs, whereas respondents are original defendants. The appellants by filing Civil Suit being RCS No.966 of 1983 and RCS No.98 of 1984, sought the relief with their condition of services as a Teacher. The plaintiffs were serving with Infant Primary School at Rajkot. The school was managed by the Navnirman Kelavni Mandal Trust. Mr.Suresh Bhatt and Nainaben Bhatt were managing affairs of the trust as well as school. Both the suits were filed at Civil Court, Rajkot joining the respondents.
4. Both the suits were contested by defendants respondents. During the pendency of the suits, vide a pursis Exhs.98 and 349, the defendants have admitted the facts of the suit and also accepted the demand of the plaintiffs and asked the Court to pass judgment on admission. The aforesaid pursis were signed by the defendants and submitted on 10.03.1986 and 15.03.1986 respectively. The Trial Court, without recording the pursis, did not pass judgment on admission in terms of Order 12 Rule 6 of the CPC. Meanwhile, the defendants moved an application, to transfer both the suits to the Tribunal constituted under the provisions of Bombay Primary Education Act, 1947, as by ordinance 6 of 86, any pending suit relating to the dispute of the service conditions Page 2 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined required to be transferred to the Tribunal. The plaintiffs appellants pending the suit challenged the order of the Civil Court by filing the revision application by the High Court in respect of joining of other trustee and the said revision application no.800 of 1996 came to be decided on 09.07.1991 and the prayer for joining the all the trustees whose presence are necessary for effective adjudication of the suit was granted.
5. On 27.12.1995, before the Trial Court, learned advocate Mr. A.B. Pandya filed another pursis allegedly appearing for and on behalf of the defendants viz. Exhs.166 and 518. It was asked the Trial Court, to pass decree in terms of admission on the basis of earlier pursis Exhs.98 and 349. The learned Judge, who was incharge of the suit, recorded the pursis, allegedly signed by learned counsel Mr.A.B. Pandya and disposed of both the suits on admission in terms of Order 12 Rule 6 of the CPC and accordingly, decree in both the suits came to be passed.
6. The respondents-defendants, being aggrieved and dissatisfied with the judgment and decree dated 27.12.1995, challenged it by preferring two separate appeals under Section 96 of the CPC. Both the appeals were being registered as Regular Civil Appeal Nos.12 of 1997 and 13 of 1997. After hearing the parties, the appeals were partly allowed and quashed and set aside the decree passed on the basis of alleged pursis. The District Judge, by remanding the matter to the Trial Court, directed to take a fresh decision on the said pursis on its own merits, in accordance with law.
Page 3 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined
7. The appellants - plaintiffs, being dissatisfied with the common judgment and decree passed by the First Appellate Court, have preferred the present appeals from order, under Order 41, Rule 1(U) of the CPC.
8. This Court has heard learned counsel Mr. Vimal Patel for VMP Legal appearing for and on behalf of appellants and Ms. Nayna Bhatt - respondent no.4-party-in-person.
9. Mr. Vimal Patel, learned counsel appearing for the appellants, assailing the common judgment and decree passed by the First Appellate Court has raised the following contentions:
(i) That the common judgment and decree of the First Appellate Court suffers from material irregularity and the First Appellate Court has erred in law as well as facts in allowing the appeal.
(ii) That the appeals before the First Appellate Court were filed by Suresh Bhatt and Nayna Bhatt without any resolution of the school or authority on behalf of the school and at relevant time, Mr. Suresh Bhatt ceased to be a trustee of the defendant no.1-trust and thus, the issue of maintainability was seriously raised, however, the First Appellate Court has decided both the appeals on merits.
(iii) That the defendants-respondents in their clear terms admitted the pleadings and claim made by the appellants-plaintiffs in the suit by filing a pursis Page 4 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined Exh.98 and 349. Thus, the defendants have consented to pass the decree and accordingly, Civil Court relying upon the subsequent pursis filed by the defendants, passed a decree in terms of Order 12 Rule 6 of the CPC. Where the decree is passed by consent of the parties, no appeal shall lie from the decree passed, and same has not been considered by the First Appellate Court while deciding the issue of maintainability of the appeals.
(iv) That the learned Appellate Court by resorting Order 41 Rule 23(a) of the CPC, remanded the matter to the trial Court to decide the contention of the pursis afresh. The decision to remand the matter is not sustainable in law. The First Appellate Court could have decide the admissibility of the pursis on the basis of available record to determine whether decree passed in terms of Order 12 Rule 6 is require to be interfered with or not. The circumstances taken into consideration by the First Appellate Court to remand the matter could have examined by the Court itself and thus, the order of remand without any justification is being passed in a mechanical manner and that too, without assigning cogent reasons. While remanding the matter, it is imperative on the part of the Court to record its satisfaction that by assigning cogent reasons fresh decision is necessary. In the facts of the present case, no such satisfaction has been recorded by the Page 5 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined First Appellate Court and on this count, the common judgment and decree deserves to be quashed and set aside.
(v) That, the First Appellate Court has recorded that, the decree in both the suits cannot be said to be judgment on admission and same does not fall under the purview of Order 12 Rule 6 of the CPC as no sufficient opportunity being given to the defendants before taking into consideration the alleged pursis Exh.166 and 518. The said findings are contrary to the evidence on record as the defendants have clearly, unequivocally and in unambiguous manner admitted the pleadings and claim made in the suits and asked the Court to pass the decree and accordingly, the learned trial Court in terms of Order 12 Rule 6, on admission passed a judgment. That once the decree is passed on admission, irrespective whether it is in form of judgment or not, it is a decree and it cannot be termed an order.
10. Learned counsel Mr. Patel placed reliance on the following judgments in support of his submissions:
1. Executive Engineer vs. Special Land Acquisition Officer & Anr. (1999 1 GLH 590)
2. Ratilal Sakarlal and Another vs. Gandabhai Muljibhai (1960 3 GLR 40)
3. Sakina Sultanali Sunesara (Momin) vs. Shia Imami Page 6 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined Ismaili Momin Jamat Samaj (2020 1 GLR 586)
4. M. Dodla Malliah and others vs. The State of Andhra Pradesh through Asst. Collector & Land Acquisition Officer, Warangal (AIR 1964 AP 216)
5. Pransukhlal Mafatlal Hindu Swimming Boat Club Trust and others vs. Vasant Joshi and others (AIR 2004 BOMBAY 270)
6. Natwarbhai Sakarbhai and others vs. Additional Special Land Acquisition Officer, Ahmedabad (1992 1 GLH 70)
7. Ashwinkumar K. Patel vs. Upendra J. Patel & Ors. [(SC) 1993 3 GLR 1887)]
8. Gamanbhai Purshottambhai Patel & Anr. vs. Jivanbhai Purshottambhai Patel (1996 1 GLR 771)
11. In view of the aforesaid contentions and relying on the ratio laid down by this Court as well as the Appellate Court, learned counsel Mr.Vimal Patel has submitted that, the First Appellate Court was not justified in setting aside the decree passed by the trial Court as before the Court, the respondents themselves had requested to pass a decree on admission and said admission was clear and without any ambiguity. Despite of this, the findings recorded by the First Appellate Court that the defendants-respondents do not agree to the contents of the pursis which findings are contrary to law and evidence on record.
12. That without any justification, the First Appellate Court remanded the matter to the trial Court to decide the matter afresh and findings thereof recorded by the First Appellate Page 7 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined Court are contrary to the statutory provisions as well as facts and documents on record and order remanding the matter having been passed in casual manner and thus, therefore, the common judgment is not sustainable in law and the same deserves to be quashed and set aside.
13. Countering to the submissions, the respondent no.4-Smt. Nayna Suresh Bhatt - party-in-person has submitted that, considering the peculiar facts and circumstances of the present case, the First Appellate Court has rightly set aside the decree and remanded the matter to the trial Court and no error much less an error of law could have said to be committed by the First Appellate Court. Referring the pursis submitted before the trial Court, she has submitted that, the said pursis were filed in the year of 1986 and on the day of filing the pursis, the Court concerned did not have acted upon, as the Court could have passed the decree, but somehow no decree being passed and later on in the year of 1995, based on the another pursis filed by the advocate A.B. Pandya, the questioned decree in both the suits have been passed. That, from 1986 to 1995, the trial Court did not have taken cognizance of the pursis. During the span of 9 years and more, the order of the Revisional Court was passed directing to join the other trustees and the application for transferring the suits to the tribunal was also filed. Despite of this, the trial Court has neither joined the trustees, nor, transferred the suit as after constitution of the tribunal to decide the dispute of teachers, Civil Court having no jurisdiction to adjudicate the suit. That, Mr. A.B. Pandya himself signed the pursis and asked the Court to act upon the earlier Page 8 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined pursis for passing the decree. That, Mr. A.B. Pandya having no authority or instructions to file a pursis. That, after a period of 9 years, if the trial Court intends to take cognizance of the earlier pursis, then, considering the aforesaid circumstances, the trial Court ought to have at least issued notice to the defendants before passing the decree.
14. In view of the aforesaid contentions, Ms. Nayna Bhatt - party-in-person-respondent has submitted that, no prejudice would cause to the right of the appellants-plaintiffs if the trial Court proceed afresh and decide the legality and admissibility of the pursis to decide whether case is made out to pass a decree on admission or not. In the facts of the present case, there is no need to record the evidence, nor, on earlier occasion the evidence was recorded. Thus, therefore, she urged that, the First Appellate Court after assigning sufficient and cogent reasons, has rightly remanded the matter to the trial Court and findings to this effect are based on the facts which does not call for any interference.
15. The appellants by invoking Order 43 Rule 1(u) of the Civil Procedure Code have filed the present Appeals from Order. The provision provides that, an Appeal from Order shall lie from an order under Rule 23 or Rule 23(a) of Order 41 remanding the case, where an appeal would lie from a decree of the Appellate Court. The provision of Order 43 Rule 1(u) provides limited power and the Court under this provision can only examine the legality and correctness of the remand order and not beyond that. In the case of J. Balaji Singh vs. Diwakar Cole & Ors. (2017 14 SCC 207) the Apex Court in clear terms Page 9 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined observed that, the Court lose their jurisdiction to decide the appeal on merits when the appeal from order challenges the legality and correctness of the remand order.
16. In light of the legal preposition and peculiar facts and circumstances of the present case the question falls for my consideration is whether the First Appellate Court was justified in remanding the case to the trial Court?
17. Before adverting to the contentions raised by the respective parties, it is necessary to take into consideration the following admitted facts:
(a) The appellants were serving as primary teachers in the Infants Primary School, Rajkot and at relevant time, the said school was managed by Navnirman Kelavni Mandal Trust and Mr. Suresh Bhatt was one of the trustees of the trust. Ms. Nayna Bhatt was working with the school as a Principal;
(b) The appellants-plaintiffs raising dispute in connection of their service conditions, filed civil suits before the Civil Court at Rajkot. The said suits were initially contested on merits and later on, the respondents-
defendants admitted the claim and relief sought in the suits and by filing pursis, they had admitted the claims of the plaintiffs. The pursis duly signed by themselves were submitted before the Court. The trial Court at the time of submission of said pursis, did not have taken any cognizance, nor recorded it. Instead of passing decree on Page 10 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined admission in terms of Order 12 Rule 6 of CPC, the trial Court waited till the year of 1995. In other words, from 1986 to 1995, the Civil Court, did not pass any decree. During the period from 1986 to 1995, the revision petition filed by the appellants-plaintiffs for joining the other trustees was decided in their favour and on 09.07.1991, this Court directed to join the other trustees in the suits. The defendants, also moved an application to transfer the suits to the tribunal constituted under the provisions of Bombay Primary Education Act, 1947, as Civil Court having no jurisdiction. The appellants-plaintiffs have not joined the other trustees, nor, the trial Court suo-motu complied the order of Revisional Court. The application for transferring the suits was also pending without any order.
(c) In the year of 1995, learned advocate Mr. A.B. Pandya by filing the pursis, drew the attention of the Civil Court that, Court may pass a decree on admission in view of the earlier pursis filed in the year of 1986.
(d) The Civil Court considering the subsequent pursis filed in the year of 1995, took cognizance of the earlier pursis filed in the year of 1986 and disposed of the suits on admission of the facts and passed a decree on admission in terms of Order 12 Rule 6 of the CPC.
18. Having heard the learned counsel for the appellants and the party-in-person-respondent and on perusal of the impugned common judgment and decree passed by the First Appellate Court as well as the material placed on record, this Page 11 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined Court is of considered view that, the First Appellate Court has rightly remanded the matter to the trial Court to decide the alleged admission of facts made by the respondents way back in the year of 1986. It is the only trial Court would answer about the authority of learned counsel Mr. A.B. Pandya to file a pursis after a gap of 9 years, insisting the trial Court to pass a decree on admission, particularly, the order of this Court joining the other trustees is still not complied and the application for transferring the suits was still pending for its adjudication. The factual aspects require to be considered by the Court concerned that why neither of the parties have not insisted at the appropriate stage to pass a decree on the basis of admission made in the year of 1986. In the appeal memo, the appellants have stated that, pending the suits, matter was adjourned time to time and therefore, the pursis were not acted upon. This ground is not convincing or appealing to believe that till the year 1995, the defendants adhered to their admission to pass a decree on admission. After filing the pursis in the year of 1986, neither of the parties pointed out to the Civil Court about passing of the decree. Instead of pointing out to the facts of admission, the appellants-plaintiffs subsequent to the filing of pursis, moved an application for joining the other trustees and same was rejected by the trial Court against which they had preferred a revision application before this Court and in the year of 1991, their prayer for addition of other trustees was allowed and till date, they have not joined the other trustees. At the time of filing the said application, they could have asked the Court to pass a decree on the basis of pursis. Even at the stage of filing the application by the Page 12 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined defendants-respondents for transferring the suits to the tribunal, neither the plaintiffs, nor the defendants insisted the trial Court to act upon the pursis filed in the year of 1986 for passing the decree on admission. In such circumstances, after considering the peculiar facts and circumstances of the case, the First Appellate Court thought it fit to remand the suits to the trial Court to decide the admissibility and correctness of the pursis afresh for passing the decree on admission. The First Appellate Court has also raised the question on the conduct of learned counsel Mr. A.B. Pandya who himself by filing a pursis, asked the Court to pass a decree on the basis of earlier pursis of admission made in the year of 1986. The respondents have raised the issue that, learned counsel Mr. Pandya was not authorized to file the said pursis, nor any instructions were being passed upon him to file such pursis.
19. For the aforementioned reasons, this Court is of considered view that, the aforesaid aspects of delay in considering the admission of facts by the trial Court and subsequent proceedings pending before the trial Court, the First Appellate Court by assigning sufficient reasons, has rightly set aside the decree by holding that, whether or not there is clear, unambiguous admission by defendants would require to re-examined by the Court concerned. Thus, therefore, the said question being essentially a question of fact, the trial Court would better understand the aforesaid circumstances discussed hereinabove in para-18 of this judgment.
20. In view of the above, this Court is of clear view that, the Page 13 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined First Appellate Court was justified in remanding the suit to the trial Court.
21. The next question raised is that, the issue of maintainability of appeal was being pleaded as a preliminary issue and despite of this, the First Appellate Court decided the case on merits. So far maintainability of the appeal is concerned, it is necessary to refer the grounds of appeal raised before the First Appellate Court. The para-5(i) of the appeal memo reads thus:
"because the appellants who were as such at the time of institution of the suits have been continued to be shown at the date of decree. As stated earlier, by Mr. Suresh Bhatt and Naynaben Bhatt have ceased to be the trustees and they are no more the trustees of the said trust though the school has been closed Mrs. Nayna Bhatt was no more the Principal of the said school. However, as in the record no changes were effected and in the decree the present appellants have been shown as the judgment debtor and therefore, they are constrained to file this appeal without prejudice to that they are not the trustees of the trust. The appellant makes it clear that, this appeal is filed in their entirely personal capacity and there may not be any confusion that the present two persons except the existence of the trust or their status as the trustees or the existence of the school."
22. In view of the aforesaid ground taken by the respondents in their First Appeal memo and considering the power of this Court to decide the limited issue of remand, the learned First Appellate Court has rightly answered in affirmative that, the appeal filed by the respondents is maintainable and thus, therefore, the contention raised by the appellants having no any merits. The next contention is that, the decree passed by the Court is a consent decree. The record indicates that, the decree in terms of Order 12 Rule 6 was passed and same was Page 14 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023 NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined not passed under Order 23 Rule 3 of the CPC. Thus, the bar of Section 96(3) of the CPC would not be attracted in the facts of present case. The second contention is that, the provision of Bombay Primary School Act, 1947 would not apply as the school was de-recognized, before the Ordinance. The issue is purely a question of fact to be decided by the Court concerned. Even otherwise, the issue of jurisdiction is neither decide by the First Appellate Court, nor dealt with by this Court in the present appeals. Third issue is that, remand order is being passed in mechanical manner. In support of this issue, heavy reliance has been placed on the decision rendered in case of Gamanbhai Patel vs. Jivabhai Purshottambhai (1996 1 GLR
771) to submit that, the power to remand the matter to be exercised in a rarest of race cases or in a most exceptional cases when Court satisfied that substantial miscarriage would result if the retrial is not ordered. The said observation being made by this Court in a second appeal preferred by the original defendants and considering the facts of the case, the Presiding Officer was used to dispose of the First Appeal by remanding the matter to the trial Court. In the facts of the present case, the First Appellate Court found that, delay of 10 years in considering the admission of the defendants would necessary to decide afresh by the Court concerned for which sufficient reasons on the facts having been assigned by the First Appellate Court. Thus, the cited judgment would not come to the rescue of the appellants.
23. For the reasons recorded, this Court does not find force in the contentions raised by learned counsel Mr. Patel.
Page 15 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023NEUTRAL CITATION C/AO/349/2008 CAV JUDGMENT DATED: 18/12/2023 undefined
24. Resultantly, this Court does not find any perversity in the order impugned and no grounds are made out warranting interference by this Court and thus, the present Appeals from Order are devoid of any merits and are hereby dismissed. No order as to costs.
25. The observations made hereinabove are tentative in nature and confined to decide the issue raised in the present appeals. The learned trial Court shall decide the suits on its own merits in accordance with law.
Sd/-
(ILESH J. VORA,J) TAUSIF SAIYED Page 16 of 16 Downloaded on : Mon Dec 18 20:50:10 IST 2023