Madhya Pradesh High Court
Ku. Divya Tiwari vs Union Of India (Uoi) And Ors. on 22 February, 2001
Equivalent citations: 2001(5)MPHT178
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. Invoking the extra ordinary jurisdiction of this Court the petitioner has prayed to call for the record from the cutody of respondent No. 2 and upon perusal of the same to command the respondents to declare her as a successful candidate in the Secondary School Examination and further to direct them to issue fresh mark sheet declaring her to have passed in the examination. Quite apart from the above prayer is also made for imposing cost on respondent Nos. 2 and 3 for commission of serious irregularity.
2. The facts as have been uncurtained are that the petitioner appeared in the All India Secondary School Examination, 1997 conducted by Central Board of Secondary Education. In the aforesaid examination she failed in the subject of Mathematics. It has been averred that respondent No. 1 had started many beneficial schemes for providing better educational facilities to such students who are unable to continue their studies regularly. As a result of the said scheme National Open School at New Delhi has been opened. The students of Central Board of Secondary Examination who could not pass the examination are eligible to undergo the examination conducted by respondent No. 2. It has been set forth that as per the prospectus the pass marks obtained in other subjects will be transferred to the examination conducted by the respondent No. 2. A portion of the scheme has been quoted to substantiate the aforesaid plea.
3. It has been put forth in the return that as the petitioner did not appear in three subjects she is not entitled to be declared to have passed as she could have been given credit in respect of two subjects in which she had obtained pass marks in the earlier examination. While disputing the claim of the petitioner the respondent No. 2 has also placed reliance on a clause in the scheme which stipulates that in case of a dispute arising out of the application of the provisions it shall be subject to the jurisdiction of the Courts at Delhi and, therefore, this Court has no jurisdiction to decide the controversy.
4. I have heard Mr. Alok Nigam, learned counsel for the petitioner, Mr. O.P. Namdeo, learned counsel for respondent No. 2 and Mr. K.S. Wadhwa, learned counsel for respondent No. 3. As the question of jurisdiction has arisen this Court thought it apposite to have the assistance of Mr. R. Menon who readily accepted to act as a friend of the Court.
5. It is submitted by Mr. Nigam learned counsel for the petitioner that as per the prospectus contained in Annexure P-2 the petitioner is entitled to have credit in respect of maximum number of subjects which she had passed in the earlier examination and under that impression she had appeared in a singular subject and hence, she should have been declared to have passed and that having not been done the action of respondent No. 2 is absolutely vitiated in law.
6. Mr. Namdeo, learned counsel appearing for respondent No. 2 has while reiterating the stand this Court has no jurisdiction to decide the lis in question has referred to the Prospectus (For Foundation, Secondary and Sr. Secondary Courses) 1998-99 of National Open School to highlight that it provides that the benefit can be given in respect of only two subjects.
7. Mr. Wadhwa, learned counsel appearing for respondent No. 3, in his turn, has said that it is no role to play as it acts in accordance with the guidelines issued by respondent No. 2 from time to time.
8. Before I advert to the merits of the case it is apposite to deal with the preliminary objection raised by the learned counsel for respondent No. 2. In this context Mr. Namdeo has drawn the attention of this Court to Note 4 to the prospectus which reads as under :
"Any dispute arising out of the application of these provisions, practices, and rules or matters arising out of them will subject to the jurisdiction of Courts in Delhi only.
9. The principal question that falls for consideration whether this Court has jurisdiction to delve into the controversy or not. Before I delve into the existing factual matrix of the present case, I think it apposite to refer to a recent decision of the Apex Court in the case of Rajasthan High Court Advocates Association v. Union of India and Ors., AIR 2001 SC 416, wherein the Apex Court expressed thus :
"The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to prove each fact, comprises in 'cause of action.' It has to be left to be determined in each individual case as to whether the cause of action arises."
10. It is not disputed at the Bar that the respondent No. 3 is the Co-ordinator of the National Open School, as per the prospectus and its establishment is situate at Jabalpur. It is not disputed that the examination was held at Jabalpur as the same was organised by respondent No. 3. It is also not in dispute that the petitioner received her mark sheet at Jabalpur. The examination centre being at Jabalpur and the petitioner having appeared at Jabalpur and the Co-ordinator School being here I am of the considered opinion that a part of cause of action has arisen at Jabalpur and, therefore, this Court has jurisdiction to adjudicate a controversy of this nature.
11. The core question that arises for consideration is whether by virtue of Note four whether the petitioner should be asked to approach the competent Court at Delhi or she can be allowed to be released from the aforesaid fetter.
12. Mr. Menon, learned counsel assisting the Court has drawn the attention of this Court to a decision rendered in the case of Snehalkumar Sarabhai v. Economic Transport Organisation and Ors., AIR 1975 Guj. 72 wherein M.P. Thakkar, J. (as his Lordship then was) while dealing with the concept of ouster of jurisdiction has held as under:
"While parties can lawfully enter into an agreement to restrict a dispute to a particular Court having jurisdiction, that stipulation though valid cannot take away the jurisdiction of the Court which admittedly has jurisdiction. The ouster clause can operate as estoppel against the parties to the contract. It cannot tie the hands of the Court and denude is no doubt true that ordinarily Courts would respect the agreement between the parties which is born out of the meeting of their minds and out of considerations of convenience. But the Courts are not obliged to do so, in every case. In a case like the present where the claim is of Rs. 1,207.92 to oblige the plaintiff to go to Calcutta merely for the pleasure of respecting the stipulation embedded in the contract between the parties is to deny justice. A new approach to this question deserves to be made for the ouster clause is calculated to operate as an engine of oppression and as a means to defeat the ends of justice for in a case like the present it would be oppressive to drive the plaintiff all the way to Calcutta to recover a small sum of Rs. 1, 208/-. The costs of travelling and litigation will far exceed the stakes involved, and even a rightful claimant would be obliged to abandon his claim rather than incur greater expenditure than the sum involve is backdrop in order to seek redress. In this backdrop the question assumes importance whether the stipulation to confine the jurisdiction in one of the Courts robs the excluded Court of its power to try the suit. Now such a stipulation may be legal and binding to parties. That, however, does not mean that it divests the Court of its jurisdiction. The plaintiff cannot insist that a Court other than the stipulated Court should try the suit. But the Court on its part is not bound by the stipulation. The stipulation can be ignored by the excluded Court which otherwise possesses jurisdiction if it is considered to be oppressive having regard to the surrounding circumstances including the stakes involved. More particularly so when the defendant firm has its office and is doing business within the local limits of the Court and it would be unjust to enforce the stipulation against the plaintiff whilst it would not cause any real prejudice to the other side. In such cases the Court will doubtless refuse to respect the contractual commitments made by the contesting parties. In such circumstances the Court should ignore the ouster clause and should exercise its jurisdiction. The lower Court was, therefore, in error in denying a decree to the petitioner plaintiff on the ground that the Court had no jurisdiction."
13. Learned amicus curiae has also drawn inspiration from the decision rendered in the case of Patnaik Industries Pvt. Ltd. v. Kalinga Iron Works and another, AIR 1984 Orissa 182 wherein R.C. Patnaik, J. (as his Lordship then was) expressed the view as under:
"It is not open to the parties by agreement to confer jurisdiction on a Court which it does not possess under the Civil P.C.; but where two Courts or more have under the Civil P.C. jurisdiction to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried in one of such Courts, is not contrary to public policy, Such an agreement between the parties does not oust the jurisdiction of the Court. It may operate as an estoppel against the parties but it cannot deprive the Court of its power to do justice. Ordinarily the Court would have regard to the choice of the parties; where, however, the Court whose jurisdiction has been ousted is satisfied that the stipulation would operate harshly, is oppressive in character, inequitable or unfair, for the ends of justice, it can relieve the party of the bargain. The ouster clause can be ignored. Case law discussed."
(Quoted from the placitum) In the case of Indian Rare Earths Ltd. and Ors. v. Unique Builders Ltd., AIR 1987 Orissa 30 a learned Single Judge ruled thus:
"Where two or more Courts have jurisdiction under the Civil P.C. to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried in one of such Courts, is not contrary to public policy nor does it contravene Section 28 of the Contract Act. Thus, the choice of the forum made by the parties by an agreement shall ordinarily be respected. This, however, does not mean that the Courts other than the one chosen by the parties would have no jurisdiction to entertain the suit or the proceeding. This is because the parties cannot by agreement confer jurisdiction not inherently possessed by it just as the parties could not by such agreement take away the jurisdiction of the Court which is otherwise vested in it."
(quoted from the placitum)
14. The learned amicus curiae has also referred to the decision rendered in the case of A.B.C. Laminart Pvt. Ltd. and another v. A.P Agencies, Salem, AIR 1989 SC 1239, wherein their Lordships while holding that where an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other Courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. While expressing such a view it is apposite to note that their Lordships referred to the decision rendered in the case of Snehal Kumar Sarabhai (supra) and dealt with the aspect where free consent may be wanting.
15. From the aforesaid enunciation of law it becomes graphically clear that parties can enter into a contract to oust the jurisdiction of a Court but such an agreement must have been reached on the basis of free consent. In absence of free consent it can be construed that such a clause is designed to operate as an engine of operation and as a means to defeat the ends of justice. At the cost of repetition, I may reiterate that unless free consent flows the Court has the authority to exercise jurisdiction if it has the inherent jurisdiction to try the controvery. In the case at hand it is not a contract between the parties but a Prospectus has been issued by the respondents. In the Prospectus certain "Notes" have been mentioned at the anterior of cover page. True it is, when a candidate appears in the examination is bound by the conditions laid down in the prospectus, but to require a candidate to agitate his grievance only in the Courts of Delhi, I am of the considered opinion, is totally unconscionable. It cannot be presumed that such a note has been issued on the foundation of ad idem. It has been stated at the Bar, the National Open School has Coordinators at various places in the country and in this context if a student is asked to travel to Delhi to file a litigation for redressal of his grievances that would be not only unfair but unequitable. I am conscious, the Apex Court in the case of ABC Laminart Pvt. Ltd. (supra) has ruled that when the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. The aforesaid case was pertaining to a matter of contract which is in the commercial sphere. That apart, their Lordships have also given emphasis on the concept of ad idem. In the case at hand there the question of contract does not arise and the concept of ad idem cannot be inferred. That apart, a note of this nature cannot be regarded as binding on the students. In view of my analysis I repel the preliminary objections raised by Mr. Namdeo with regard to the ouster of jurisdiction of this Court.
16. Presently I shall advert to the merit of the case. Submission of Mr. Nigam is that the petitioner had perused the Hindi version of the prospectus. Learned counsel has drawn the attention of this Court to the provision in Hindi prospectus. It reads as under :
^^dsUnzh; ek/;fed f'k{kk cksMZ vkSj jkT; eqä fo|ky; ds iwoZ fo|kFkhZ%& dsUnzh; ek/;fed f'k{kk cksMZ vkSj jkT; eqä fo|ky; ds ekè;fed vFkok mPprj ekè;fed Lrj ds iwoZ fo|kFkhZ tks de ls de ,d fo"k; esa mÙkhZ.kZ gksa] jk"Vªh; vksiu Ldwy ds mi;qDr dk;ZØe esa izos'k ik ldrs gSaA muds ikl ,d fodYi vkSj Hkh gS os ds-
ek- f'k- cksMZ ls mÙkhZ.k vf/kdre fo"k;ksa esa ØsfMV vad LFkkukarfjr djok ldrs gSa] c'krsZ os fo"k; jk"Vªh; vksiu Ldwy ds ikB~;Øe esa miyC/k gksa bl izdkj jk"Vªh; ikB~;Øe dks iwjk djus ds fy, mUgsa dsoy 'ks"k fo"k;ksa esa gh mÙkh.kZrk izkIr djuh gksxhA**
17. Submission of Mr. Nigam is that if the aforesaid provision is properly construed it becomes plain as day that grade should be given in respect of maximum subjects. The learned counsel has canvassed the maximum subjects has to be interpreted in a purposeful manner so that the benefit is conferred on the student. The learned counsel has submitted it that if a student has passed in more number of subjects the grade in respect of that should be given to him/her.
Per contra, Mr. Namdeo learned counsel for respondent No. 2 has drawn the attention of this Court to the English version of the prospectus which reads as under:
"Ex-CBSE and Ex-State Open School:
Ex-secondary/Sr. Secondary CBSE and State Open School students who have passed in atleast one subject and have not qualified in the course may seek admission in the respective NOS programme. They will have the option to get the credit of maximum of two subjects passed in CBSE/State Open Schools transferred provided these subjects are also available in NOS programme. Thus to qualify in NOS programme they will only have to pass in the remaining subjects."
18. It is put forth by Mr. Namdeo that though a stand has not been taken in the return explaining the Hindi prospectus but it is graphically clear that there has been a printing mistake in Hindi. Submission of Mr. Namdeo is that when the word Adhiktam' has been used there has to be qualifier in respect of number of subjects.
19. To appreciate the aforesaid submission of learned counsel for the parties I have perused both the clauses : in Hindi as well as in English with utmost anxiety. No doubt there is some discrepancy in both the prospectus but reading the Hindi version it becomes clear that a candidate can avail maximum grade if he/she has passed in the subjects in question with a further rider that said subject should be available in the National Open School. Thus the two conditions precedent inorated are : the candidate must have passed in the subjects in earlier examination and the subjects should be available in the National Open School. Submission of Mr. Nigam is that the petitioner had perused the Hindi prospectus and accordingly applied in respect of one subject. The learned counsel has also emphatically put forth that the respondent No. 2 issued the admission card to her which shows it was also conscious about the Hindi prospectus. Mr. Namdeo, adhering to earlier stand has canvassed that in English version the privilege has been limited to two subjects. Submission of Mr. Namdeo may be correct but on a reading of the Hindi version it does not appear that it conveys any incomplete sense. When a student has perused the prospectus and has applied for appearing in examination in respect of one subject and the respondent No. 2 had issued the admit card in respect of one subject I am of the considered opinion that the benefit should be given to the student. It is worth noting here that if the privilege has to be conferred in respect of maximum two subjects, a student would be always required to appear in three subjects and in that event the petitioner should not have been issued the admit card. Ordinarily issuance of admit card or appearance in an examination would not cause an impediment on the part of the examination Board to rectify the mistake but the present case stands on a different footing inasmuch as the prospectus in Hindi version conveys a different meaning. As the respondent No. 2 has not taken due care while publishing the Hindi prospectus and the petitioner acted by it the action taken thereafter by the respondent No. 2 by not issuing the mark sheet to her, is unjustified. Accordingly the marksheet contained in Annexure P-6 is declared to be erroneous and it is directed that the respondent No. 2 shall issue a proper mark sheet to the petitioner declaring her to have passed in the examination. It is expected in future that the respondent No. 2 shall take care to avoid any kind of anomaly in Hindi and English prospectus. It is to be borne in mind that most of the students are guided by Hindi prospectus and their fate cannot be smothered because of employment of erroneous language. It has been said words have life and they have a moving power. A body like National Open School cannot take a spacious plea in Court that some words have not been printed in the Hindi prospectus. Such a stand can not be permitted to be taken.
20. In the result the writ application is allowed. However, there shall be no order as to costs.