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SA/129/1997 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 129 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATEOF
GUJARAT & 2 - Appellant(s)
Versus
SAVITABEN
HIRAJIBHAI - Defendant(s)
=========================================================
Appearance
:
MS
CM SHAH, LD.ASST.GOVERNMENT PLEADER
for
Appellant(s) : 1 - 3.
MRS SANGEETA N PAHWA for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 05/05/2011
ORAL
JUDGMENT
By
way of present appeal, the appellants have challenged the legality
and validity of the judgment and order dated 23rd April
1997 passed by the Assistant Judge, Bhavnagar in Regular Civil
Appeal No.171 of 1995, confirming the judgment and decree dated 29th
September 1995 passed by the Civil Judge (Senior Division),
Bhavnagar in Regular Civil Suit No.616 of 1987.
The
brief facts giving rise to the present appeal are that the
respondent was serving as an unarmed lady Police Constable with
effect from the year 1977 under the appellant No.3. As per the case
of the respondent before the Courts below, she is entitled to be
promoted to the post of Head Constable since the year 1977. Hence,
she submitted an application dated 01st January 1985 to
the appellant No.3 and subsequently also made applications. However,
all in vain and, therefore, she filed Regular Civil Suit No.616 of
1987 before the Civil Judge (Senior Division), Bhavnagar. The trial
Court after hearing the parties has decreed the suit vide impugned
judgment and decree dated 29th September 1995.
2.1 Being
aggrieved by the said judgment and decree, the appellants herein
preferred Regular Civil Appeal No.171 of 1995, which ultimately came
to be dismissed vide impugned judgment and order dated 23rd
April 1997 passed by the Assistant Judge, Bhavnagar, confirming the
judgment and decree passed by the trial Court. Hence, present appeal.
Present
appeal has been admitted for hearing the parties on the following
substantial question of law :
“Whether
the suit filed by the respondent in 1987 claiming her promotion is
stood barred by law of limitation, delay and latches especially in
view of the fact that juniors to her were promoted ?”
Having
considered the rival contentions raised by the learned advocates for
the respective parties, the documentary evidence produced on record
and the impugned judgments and decrees as well as the substantial
question of law, it transpires that the Courts below have after
going through the relevant aspects of the matter rightly came to the
impugned conclusion, which is just and proper. So far as the
aforesaid issue is concerned, Mrs.Sangeeta Pahwa, learned advocate
for the respondent, has relied upon a decision of the Apex Court in
the case of Banarsi Das v. Kanshi Ram and others, reported in
AIR 1963 SC 1165, whereby
it is held that the question of limitation was not one purely of law
but was a mixed question of fact and law. Here it
would be beneficial to reproduce the relevant paragraph of the said
decision as under :
“15.
The High Court has overlooked the fact that even upon the
argument addressed before it on behalf of Kanshi Rain, the question
of limitation was not one purely of law but was a mixed question of
fact and law and, therefore, it was not proper for it to allow it to
be raised for the first time in argument. We are satisfied that what
the High Court has done has caused prejudice to some of the parties
to the suit and on that ground alone, we would be justified in
setting aside its decision. If the High Court felt overwhelmed by
the provisions of s. 3 of the limitation Act, it should at least
have given an opportunity to the parties which supported the decree
of the trial court to meet the plea of limitation by amending their
pleadings. After allowing the pleadings to be amended, the High
Court should have framed an issue and remitted it for a finding to
the trial Court. Instead of doing so, it has chosen to treat the
pleading of one of the defendants as conclusive not only on the
question of fact but also on the question of law and dismissed the
suit. It is quite possible that had an opportunity been given to the
defendants, they could have established, in addition to proving the
dates on which the summonses were served, that the suit was not
barred by time because of acknowledgment in the course of the
discussion, the High Court had said that it was not suggested before
it by anyone that the claim was not barred by reason of
acknowledgments. Apparently, no such argument was advance before
it on behalf of the plaintiff and the defendant Banarsidas
because the counsel were apparently taken by surprise and had no
opportunity to obtain instructions on this aspect of the case. We
are clearly of opinion that the High Court was in error in
allowing the plea of limitation to be raised before it
particularly by defendants who had not even filed a written
statement in the case. We do not think that this was a fit case for
permitting an entirely new point to be raised by a non-contesting
party to the suit.”
In
view of aforesaid and applying the aforesaid ratio of the above
cited decision in the present case, I am of the opinion that the
Courts below have assigned cogent and convincing reasons for
arriving at the conclusion. Over and above the aforesaid reasons, I
adopt the reasons assigned by the Courts below and do not find any
illegality much less any perversity in the findings recorded. I am
in complete agreement with
the findings recorded by the Courts below. No case is made out to
interfere with the findings recorded by the Courts below. Hence,
present appeal deserves to be dismissed.
For
the foregoing reasons, present appeal fails and is, accordingly,
dismissed. No order as to costs. Decree be drawn accordingly.
It
is, however, clarified that the juniors to the respondent who are
already promoted will not be disturbed while granting promotion to
the respondent and the respondent be granted all the admissible
monetary benefits.
(K.S.
Jhaveri, J)
Aakar
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