CASE NO.: Appeal (civil) 5228 of 2000 PETITIONER: MANAGEMENT OF THE GOODWILL GIRLS HIGH SCHOOL AND ANR. RESPONDENT: SMT. J. MARY SUSHEELA AND ORS. DATE OF JUDGMENT: 29/04/2003 BENCH: SHIVARAJ V. PATIL & ARIJIT PASAYAT JUDGMENT:
JUDGMENT
2003(3) SCR 1013
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. A controversy which could have been solved long back has
been blown out of proportion, making the parties travel through the
corridors of various courts and has finally landed in this Court. Whenever
there is prolongation of litigation, ultimate sufferers are the litigating
parties, and inevitably justice delivery system. Resultant is miscarriage
of justice. It is painful to notice that the arduous journey of litigating
parties started about two decades back in an educational institution, named
Goodwill Girls’ High School. Ironically, the controversy started because of
alleged “ill will” amongst the parties. Helen Keller, the great humanist
had once said: “The highest result of education is tolerance.” But the
foundation of the dispute was alleged intolerance by those who matter, in
the concerned educational institution.
Steering clear of the red herrings, the factual scenario is as follows:
Smt. J. Mary Susheela-respondent no.l in this appeal filed a suit No. 10050
of 1985 in the Court of City Civil Judge, Bangalore seeking a mandatory
injunction directing the defendants (the appellants in this appeal) to
assign teaching work to her pursuant to the order of the appointment. Her
claim essentially was that she was selected for appointment as a teacher in
the appellant no.1 institution, but no order of appointment was issued by
the then Principal who was also in the Selection Committee, primarily
because She had not agreed to her appointment during the course of
selection. The suit was dismissed. However, the trial Court observed that
in the interest of the students community, which is of utmost importance,
it was hoped that the Selection Committee will issue formal order of
appointment without further delay. In view of this observation the
Management of the School issued a letter of appointment directing the
plaintiff to report for duties on or before 15.6.1985. Plaintiff claimed
that though she reported for duty, the Principal (defendant No.2) did not
allow her to function. That led to filing of the second suit to which this
appeal relates, bearing OS.No. 10456/1985. By order dated 27.9.1988 the XIX
Additional City Civil Judge passed an order purportedly under Order 14 Rule
2 of Code of Civil Procedure, 1908 (in short ‘the CPC’). It is to be noted
that though six issues were framed, the only issue which was taken up was
as follows:
“(1) Whether the plaintiff proves that she is entitled for mandatory
injunction directing the defendant to assign the work as claimed in the
suit?”
The trial Court dismissed the suit, inter alia, observing as follows:
“In the result, in view of my foregoing discussions my finding on issue
No.1 is that the plaintiff has failed to establish that she is entitled for
mandatory injunction directing the defendant to assign the work as claimed
in the suit. Consequently, the suit fails and the same is hereby
dismissed.”
Plaintiff filed an appeal before the High Court of Karnataka at Bangalore.
By the impugned judgment the learned Single Judge decreed the suit with
costs and additionally directed that payment was to be made to the
plaintiff by the 1st defendant w.e.f. 10.6.1985. Said judgment is assailed
in this appeal by the two defendants i.e. Management of the School and the
Principal.
The basic ground for challenge is that learned Single Judge expanded the
scope of the appeal and when one issue was taken up by the trial Court, it
was not open to the High Court to take all the issues that were framed
initially by the trial Court and render findings on those issues. The
plaintiff was working in another institution and, therefore, the direction
for paying salary right from 10.6.1985 is without any justification.
Learned counsel appearing for the plaintiff-respondent in response,
submitted that the present appeal was limited to the question of back wages
and the appellant no.l in this appeal having conceded to the position that
the plaintiff-respondent was entitled to the benefits claimed, the suit has
been rightly decreed on the concessions and admissions made by defendant
no.l. Though defendant no.2 (appellant no.2 herein) resisted the claim, the
same was of no consequence because the appointment was made by the
Management-appellant no.1 and being an employee of appellant-defendant
no.l, the appellant no.2 could not have taken any stand at variance with
the Management.
With reference to Order 12 Rule 6 CPC, it is pointed out that on the basis
of concessions made, part decree could have been passed. It is pointed out
that pursuant to the various interim orders passed by this Court,
plaintiff-respondent no.l is rendering services and while passing the
interim orders this Court has taken serious note of the conduct of
Management in appointing another person on regular basis. She was directed
to be impleaded in the present appeal.
At this juncture, it is to be noted that interim orders have been passed in
this appeal earlier. With a view to ascertain the stand of the State of
Karnataka as to whether the appointment of plaintiff was approved by the
State Government notice was issued to the State. In an affidavit filed, the
State has taken the stand that no approval was accorded to the appointment
of the plaintiff and her post was an unaided one. It is to be noted that
this Court had directed that the person who was appointed subsequently was
to be treated against the unaided post, while the plaintiff-respondent was
to be adjusted against the aided post. Learned counsel for the said
employee submitted that she was not a party to the suit, and no direction
has been given by the trial Court and the High Court so far as she is
concerned, and there is nothing on record to show that she was appointed in
respect of the post claimed by the plaintiff-respondent no.l. In this view,
the orders so far as she is concerned, should be recalled.
As the factual scenario goes to show, the controversy has remained unabated
for nearly two decades. The trial Court decided only one issue in terms of
Order 14 Rule 2 CPC though there is no specific reference to the provision
made in the order. It has been only stated “Order on issue No.l.” The High
Court, however, treated it to be in terms of Order 14 Rule 2. It is
significant to note that in the memorandum of appeal before the High Court,
plaintiff took exceptions to disposal of the suit on one issue alone. It
was specifically pleaded that the trial Court should have adjudicated all
the issues and it having not done so she was prejudiced. The ground No.16
spells out the specific grievance of the plaintiff and reads as follows:
“(16)- That the learned Judge ought to have given his own findings on all
the issues however without considering the other issues. The learned Judge
has dismissed the suit basing his findings only on Issue No.l. The absence
of finding on other issues has resulted in gross injustice.”
The points of law formulated in paras (3) and (4) were as follows:
“(3)- Whether the Trial Court was required in law to try all the ISSUES and
pronounce on all the issues arising in the suit?
(4) Whether the Trial Court was justified in trying Issue No.l as a
preliminary ISSUE and dismiss the suit as not maintainable without giving a
finding on all the other ISSUES?”
No evidence was led by the parties. Even the plaintiff was not examined.
What is the effect of alleged admission/concession by the Management, if
any, was required to be considered in the light of stand taken by the other
defendant. That aspect seems to have been completely lost sight of by the
High Court. As no evidence was led, the High Court ought not to have
considered all the issues; particularly when plaintiff herself had not
prayed for adjudication of other issues by the High Court. On the contrary,
her stand was that the trial Court should have decided all the issues. It
is of considerable importance that in the memorandum of appeal before the
High Court there was no plea or ground taken that the suit ought to have
been decreed on the basis of ‘alleged admission/concession by defendant no.
1.
One aspect needs to be clarified. Present appeal is not confined to the
question of back wages as contended by plaintiff-respondent No.l. The plea
in that regard was an alternative one. The primary stand related to
legality of the judgment in dealing with several issues when trial Court
had dealt with only one issue.
It pains us to note that the High Court has made certain observations which
have absolutely no bearing on the subject-matter of the issues.and were not
even remotely connected with the subject-matter of controversy. That being
the position, the, judgment of the High Court is indefensible and needs to
be set aside, and we direct so. The matter shall be considered by the trial
Court afresh.
The engagement of the plaintiff-respondent no. 1 and Ms. Nancy shall
continue till disposal of the suit. We make it clear that we have not
expressed any opinion on the respective stands. Ms. Nancy is not a party to
the suit and so is the State. For effective adjudication they shall be
impleaded as parties in the suit, in view of their impletion in the present
appeal. They shall be permitted to file written statements by 15.6.2003. If
they fail to do so, the effect thereof shall be considered by the trial
Court. Since the suit was filed in 1985, it would be appropriate if the-
same, is disposed of before 2004 sets in.
The appeal is allowed to the extent-indicated above with no order as to
costs.