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SCA/9693/2008 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9693 of 2008
With
SPECIAL
CIVIL APPLICATION No. 9694 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
AHMEDABAD
MUNICIPAL CORPORATION - Petitioner(s)
Versus
LILABEN
HIRABEN - Respondent(s)
=========================================================
Appearance
:
MR
RM CHHAYA for
Petitioner(s) : 1,
MR MB GANDHI for Respondent(s) : 1,
MR
CHINMAY M GANDHI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 26/08/2008
ORAL
JUDGMENT
RULE.
Mr.M.B. Gandhi, learned advocate waives the service of notice of
admission on behalf of the respondent.
With
the consent of the learned advocate appearing on behalf of the
respective parties, both these petitions are taken up for final
hearing.
As
both these petitions arise out of the common order passed in the
applications between the same parties, the same are being disposed
of by this Common judgement and order.
By
way of this petition under Article 227 of the Constitution of India,
the petitioner ? Ahmedabad
Municipal Corporation has prayed for appropriate
writ, order and/or directions, quashing and setting aside the
impugned order dtd.11/7/2008 passed by the learned City Civil
Judge, Ahmedabad (Mr.J.D. Vyas) in Civil Misc.Application Nos.297
and 141 of 2008, whereby the learned Judge has ordered that the
order dtd.25/2/2008 passed by the Corporation be treated as
cancelled w.e.f. 26/2/2008 and the service of the respondent be
treated as continued. By the said impugned order the learned Judge
also restrained the petitioner from making any interference or
disturbance in the service of the respondent.
The
respondent was serving as sweeper (Safai Kamdar) with the
petitioner Corporation. The mother of the respondent was working as
a sweeper and she was declared unfit, and a representation was made
by the respondent to the effect that she was the daughter of Hiraben
Gendalbhai, even though she is wife of the son of Hiraben Gendalbhai
and requested to appoint her as sweeper in place of Hiraben
Gendalbhai. Thus, according to the Corporation, from the very
initiation of her service, the respondent did not disclose correct
facts and by disclosing false relationship, obtained the job with
the petitioner as sweeper and therefore, chargesheet was served upon
the respondent and as per the petitioner Corporation, regular
inquiry was held and the inquiry officer after following due
procedure of law and after giving sufficient opportunity of hearing
to the respondent, made a report to the effect that the charges
levelled against the respondent are proved beyond doubt. Thereafter,
a regular show cause notice dtd.9/2/1995 was issued to the
respondent for imposing final punishment. At that stage, the
respondent herein instituted civil suit being Civil Suit No. 3400
of 1995 inter-alia praying for a declaration and permanent
injunction. In the said suit, the respondent took out a notice of
motion wherein temporary injunction was prayed for by her. The said
notice of motion came to be disposed of by the learned City Civil
Judge holding that if any final order is passed by the petitioner
Corporation, the same shall not be implemented for a period of 15
days. That thereafter, vide order dtd.24/10/2007, Civil Suit No.
3400 of 1995 came to be dismissed for default for want of
prosecution. As per the petitioner Corporation, no steps were taken
by the respondent for getting the aforesaid civil suit restored and
therefore, vide order dtd.25/2/2008, the petitioner Corporation
dismissed the respondent from service. That after the service of the
aforesaid order, the respondent herein original plaintiff filed
three different applications namely Misc.Civil Application No.141 of
2008 for disobedience of the order passed on the notice of motion;
Misc.Civil Application No.142 of 2008 for condonation of delay as
well as Misc.Civil Application No.297 of 2008 for restoration of the
suit. It was contended on behalf of the respondent that order of
termination dtd.25/2/2008 is in clear breach and in violation of the
order passed below notice of motion whereby it was observed that if
any final order is passed by the petitioner Corporation, the same
shall not be implemented for 15 days and submitting accordingly, in
the Misc.Civil Application No.141 of 2008, it was requested to
quash the order of termination dtd.25/2/2008. Simultaneously, in
the Misc.Civil Application No.297 of 2008 the respondent prayed to
restore the suit and as there was delay in preferring application
for restoration, in Misc.Civil Application No.142 of 2008, the
respondent prayed to condone the delay in preferring restoration
application. While passing the impugned order below Misc.Civil
Application No.297 and 141 of 2008, the learned City Civil Judge
quashed and set aside the order of termination dtd.25/2/2008 and
ordered to treat the same as cancelled w.e.f. 26/2/2008 by further
ordering that the service of the respondent be treated as
continued and further directed the petitioner Corporation to pass
appropriate order of termination afresh and if any order is passed,
the same shall not be implemented for a period of 15 days and
further restrained the petitioner Corporation from making any
interference or disturbance in the service of the respondent and the
same shall be continued for 15 days after service of fresh order of
punishment that may be passed by the petitioner Corporation. Being
aggrieved by and dissatisfied with the order dtd.11/7/2008 passed by
the learned City Civil Judge below Misc.Civil Application Nos.297
and 141 of 2008, the petitioner Corporation has preferred both these
Special Civil Application under Article 227 of the Constitution of
India.
Mr.R.M.Chhaya,
learned advocate appearing on behalf of the petitioner Corporation
has vehemently submitted that the impugned order passed by the
learned City Civil Court is absolutely illegal and arbitrary which
requires to be quashed and set aside. It is submitted that the civil
suit is dismissed for non-prosecution and the respondent had
submitted Misc.Civil Application No. of 297 of 2008 for restoration
of the suit and as there was delay in preferring the restoration
application, the respondent had filed Misc.Civil Application No.142
of 2008 to condone the delay caused in preferring restoration
application and simultaneously the respondent also submitted
Misc.Civil Application No.141 of 2008 for disobedience of the order
passed below notice of motion to the effect that while disposing of
the notice of motion it was ordered that if any final order of
punishment is passed, the same shall not be implemented for a period
of 15 days. However, without passing any order in Misc.Civil
Application No.141 of 2008 for condonation of delay in restoration
application and without restoring the suit by allowing Misc.Civil
Application No.297 of 2008, the learned trial court passed the
impugned order, which cannot be sustained. It is submitted that
unless and until the delay is condoned and the suit is restored,
such an order could not have been passed by the trial court,
quashing and setting aside the order of termination directing the
petitioner Corporation to reinstate the respondent and to pass
afresh order.
It
is also further submitted that even on merits also, the learned
trial court was not justified in passing such an order quashing and
setting aside the order of termination dtd.25/2/2008 and directing
the petitioner to reinstate the respondent treating the order to be
25/2/2008 as cancelled. It is submitted that the learned trial court
has committed an error in quashing and setting aside the order
dtd.25/2/2008 and holding that the implementation of the same is in
violation of the order passed below notice of motion. It is
submitted that the order passed below notice of motion is to be
treated and considered during the pendency of the suit only and
moment of the suit is disposed of, the interim order below notice of
motion will not survive and therefore, when the suit itself was
dismissed for non-prosecution, the order passed below notice of
motion came to an end and the order passed below notice of motion
was not in existence when the order dtd.25/2/2008 came to be passed
and implemented and therefore, the learned trial court has
materially erred in holding that the order of termination
dtd.25/2/2001 and its implementation is in breach of the notice of
motion. Mr.Chhaya, learned advocate appearing on behalf of the
petitioner has heavily relied upon the decision of the Allahabad
High Court, Lucknow Bench in the case of Nagar Mahapalika,
Lucknow Vs. Ved Prakash, reported in AIR 1976
Allahabad 264 and it is submitted that as held by the
Allahabad High Court when a suit was dismissed for default, but
restored, the interim injunction order would cease on dismissal of
the suit and would not automatically revive on setting aside of
dismissal order and restoration of suit. By making above submissions
and relying upon the above decision, Mr.Chhaya, learned advocate
appearing on behalf of the petitioner has requested to allow both
the petitions by quashing and setting aside the impugned order
dtd.11/7/2008 passed by the learned City Civil Judge, Ahmedabad
(Mr.J.D. Vyas) in Civil Misc.Application Nos.297 and 141 of 2008.
Both
these petitions are opposed by Mr.M.B. Gandhi, learned advocate
appearing on behalf of the respondent ? original plaintiff. He
has relied upon the decision of the Hon’ble Supreme Court in the
case of Ganesh Prasad Sah Kesari and another Vs. Lakshmi
Narayan Gupta, reported in AIR 1985 S.C. 964
in support of his submissions that once suit is restored, ad-interim
order would automatically revive. He has also relied upon the
another decision of the Hon’ble Supreme Court in the case of Prithwi
Nath Ram Vs. State of Jharkhand and others, reported in
(2004) 7 SCC 261 more particularly Head-Note-B of the
said decision. He has also further submitted that even in case where
suit is dismissed for non-prosecution and/or dismissed, the order
passed below notice of motion continues. It is further submitted
that while disposing the notice of motion it was ordered that as
and when order of punishment is passed, the same shall not be
implemented for a period of 15 days, in the present case, the order
of termination came to be passed on 25/2/2008 and came to be
implemented and served upon the respondent immediately on the next
day and therefore, the same was in breach of the order passed below
notice of motion and therefore, the trial court has rightly quashed
and set aside the order dtd.25/2/2008 directing to treat it as
cancelled and by further directing the petitioner Corporation to
reinstate the respondent immediately. Submitting accordingly, it is
requested to dismiss both the petitions.
Heard
the learned advocates appearing on behalf of the respective parties
at length.
At
the outset, it is required to be noted that at the time of
institution of the suit, the respondent ? original plaintiff had
taken out notice of motion praying for temporary injunction and the
said notice of motion came to be disposed of by directing that if
any final order is passed by the petitioner Corporation, the same
shall not be implemented for a period of 15 days. However,
subsequently, the Civil Suit came to be dismissed for
non-prosecution by the learned City Civil Court on 24/10/2007.
Normally any order in interim application passed below application
Ex.5 and/or notice of motion, is to be confined during the
penedency and final disposal of the suit. In the present case, the
suit came to be dismissed for non-prosecution on 24/10/2007 and
thereafter, even after a period of almost five months, no steps were
taken by the respondent – original plaintiff to restore the suit.
The petitioner Corporation passed order of termination dtd.25/2/2008
and dismissed the respondent from service and the said order of
dismissal came to be implemented on 26/2/2008. Thus, at the relevant
time, when the order was passed on 25/2/2008 and implemented on
26/2/2008, the suit was dismissed for non-prosecution and the suit
was not in existence and consequently there was no order below the
notice of motion in existence inasmuch as the order passed below
notice of motion is automatically ceased to be in operation, moment
the suit is dismissed and therefore, it cannot be said that at the
relevant time when the order dtd.25/2/008 was passed and
implemented, the interim order was in operation. Therefore, the
order of termination can not be said to be in breach of the order
passed below notice of motion.
Now,
so far as the contention on behalf of the respondent relying upon
the aforesaid two decisions of the Hon’ble Supreme Court that when
the suit is restored, ad-interim relief would automatically revive,
is concerned it is required to be noted that firstly as on today,
there is no specific order passed by the learned City Civil Court
restoring the suit. Not only that even the delay in submitting the
restoration which was prayed by submitting Misc.Civil Application
No.142 of 2008 is also not condoned. Thus, as on today, neither
the delay in preferring the restoration application is condoned nor
the suit is restored to file and therefore, the contention on behalf
of the respondent that once the suit is restored, ad-interim relief
would revive, cannot be accepted and the said question does not
arise. Thus, in the facts and circumstances of the case, the
aforesaid two decisions would not be helpful to the respondent ?
original plaintiff at this stage.
Even
otherwise, even otherwise assuming that once the suit is restored
and the ad-interim order would revive, in that case also, the
further question which is required to be considered is that what
will happen to the action which is already taken during the time
when the suit was dismissed for non-prosecution and the same was not
restored and thereafter the suit is restored. As per this court in
such a situation where any action is already taken during the time
when the suit is dismissed for non-prosecution and thereafter the
suit is restored and if the contention of the respondent is
accepted, the ad-interim order would revive on restoration of the
suit, in that case also, any action taken during the time when the
suit was dismissed for non-prosecution and was not in existence, the
said revival of ad-interim relief on restoration of the suit would
not affect the action already taken during the time when the suit
was not in existence and consequently it cannot be said that such
an action was illegal and/or in breach of ad-interim order /
injunction therefore, in the present case the action was taken when
the suit was dismissed for non-prosecution and therefore, even if
the contention and submission of the respondent that on restoration
of the suit, ad-interim relief passed below notice of motion would
automatically revive, is accepted, in that case also, as stated
above, it will not affect any order passed by the Corporation when
the suit was dismissed for non-prosecution and when the suit was not
in existence Further, in the present case as stated above, neither
there is any order passed by the Court to restore the suit nor even
the delay in preferring the restoration application is condoned.
Even
the contention on behalf of the respondent that even if the suit is
dismissed for non-prosecution, the interim order passed below notice
of motion continues, cannot be accepted, as any interim order and/or
interlocutory order passed below application Ex.5 or below notice
of motion is always to be treated during the pendency of the suit
and moment the suit is dismissed either on merits or for
non-prosecution, the said interim relief and/or interim injunction
and/or interlocutory order would ceased to be in operation and
therefore, such a contention that even if the suit is dismissed for
non-prosecution the order passed below notice of motion would
continue, cannot be accepted.
Considering
the above, the impugned oder passed by the learned trial court
without disposing the main application without condoning the delay
in submitting the Restoration Application and quashing and setting
aside the termination order dtd.25/2/2008 and to treat it as
cancelled and directing the petitioner Corporation to reinstate the
respondent w.e.f. 26/2/2008, cannot be sustained and the same
deserves to be quashed and set aside.
For
the reasons stated above, both the Special Civil Applications
succeed. The impugned order dtd.11/7/2008 passed by the learned City
Civil Judge, Ahmedabad in Civil Misc.Application Nos.297 and 141 of
2008 is hereby quashed and set aside. Rule is made absolute
accordingly in each of the petitions. There shall be no order as to
costs.
[M.R.
SHAH, J.]
rafik
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