JUDGMENT
Rakesh Sharma, J.
1. Heard Sri Aashish Agarwal, holding brief of Sri K. Shailendra, learned Counsel for the appellants, Managing Committee, Farrukhabad City Girls Higher Secondary School, Farrukhabad, the employer and Sri Atul Dayal, learned Counsel who has put in appearance on behalf of Smt. Rose Mary Lal, erstwhile teacher of the said institution. This F.A.F.O. arises out of a dispute between a minority teaching institution and its teacher.
2. Through this appeal the appellants have assailed the judgement and order dated 16.12.1996 passed by the Second Additional Civil Judge (Senior Division), Farrukhabad allowing the application seeking review of the order dated 16.12.1996 passed in Civil Appeal No. 11 of 1991, which emanated out of the original suit No. 216 of 1987 filed by Smt. Rose Mary Lal against the Managing Committee and others. The appellants have sought setting aside of the impugned judgement and order of the court below passed on 16.12.1996.
3. This Court while admitting the appeal on 31.3.1997 has stayed the operation of the impugned decree. The plaintiff Smt. Rose Mary Lal filed a suit No. 216 of 1987 against the appellant educational institution seeking declaration that the plaintiff was continuing in the service as Assistance Teacher of the institution arrayed as defendant No. 1. She has further sought a relief of restraining the defendants-management of the institution from interfering in her working as Assistant Teacher. In the suit the plaintiff-respondent had claimed that she was permanent teacher in Farrukhabad City Girls Higher Secondary School since 1975 (hereinafter referred to as the institution). This was a recognized and aided institution of the Government and was under the administrative supervision of District Inspector of Schools, Farrukhabad.
4. The plaintiff-respondent had set up a case that she was prevented to work in the institution on the ground that the petitioner had remained absent from duties as she was on long leave during the period from 6.12.1981 to 6.5.1982. She was not permitted to sign in the attendance register from 8.5.1982 to 18.5.1982. She again came to assume her duties from 1.7.1982 but she was not allowed to sign the attendance register and was not permitted to discharge her normal duties. A show cause notice was issued against the plaintiff-respondent on 17.9.1982 to which she had responded on 24.9.1982. However, vide a letter dated 14.10.1982, her services were terminated w.e.f. 7.5.1982. Being aggrieved of this action, a suit was filed in the year 1987.
5. The appellant institution contested the suit on a number of pleas denying the plaintiff-respondent’s allegations. It was indicated in the written statement etc. that the plaintiff -teacher had remained absent for a long period unauthorisedly without seeking prior permission from the competent authority. It was categorically submitted in the replies that the institution in question is a minority institution and it is governed by its own rules and regulations. No prior permission was required before terminating the services of the teacher. However, the suit was decreed by the court below on 16.2.1991 against which a civil appeal being Civil Appeal No. 11 of 1991 was preferred by the management of the institution. This civil appeal was allowed in favour of the employer-institution on 30.5.1992. It was held in the civil appeal that the plaintiff is not entitled to any relief as she was absent without leave and her statement that even though her services were terminated in 1982 but she continued to attend the college upto 6.4.1987 was found to be incorrect. It was also found that she produced manufactured and doubtful documents in her support. Suit was bad for non-joinder of necessary parties. It was held that the suit was not maintainable and the documents 26 C and 27 C were not genuine documents. Further the suit was held to be barred by limitation.
6. The plaintiff-respondent, teacher had preferred a review application being Review Petition No. 52/74/92. This review petition was allowed by the afore-mentioned court vide impugned order dated 16.12.1996 and the appellate court’s earlier judgement dated 30.5.1992 was set aside and the suit was decreed. The appellants have assailed the said judgement and order on various grounds, like the court below has re-heard the matter and re-appreciated the entire evidence on record and has come to the entirely different conclusion. The court has, in fact, transgressed its jurisdiction and has acted against the provisions contained in order 47 Rule-1 and 4 of C.P.C. It did not record as to what was the error apparent on the record in the earlier judgement which was sought be reviewed. An error of judgement can not be corrected in exercise of jurisdiction of the court conferred on it under order 47 Rule-1 of the C.P.C.
7. Learned Counsel for the appellants has placed reliance on the following judgements in support of his submissions State of Haryana and Ors. v. Mohinder Singh and Ors. (2003) 1 AWC 567 (Supreme Court). Smt. Meera Bhanja v. Smt. Nirmala Kumari ). Deva Raju Pillai v. Sellayya Pillai AIR 1907 Supreme Court 1160) and Smt. Sursati Devi v. Varanasi Vikas Pradhikaran (2005) 4 AWC 3242.
8. Sri Aashish Agarwal, learned Counsel for the appellant has further contended that the appellate court had recorded specific finding that the suit was not maintainable as plaintiff had approached for the declaration of enforcing contract of personal service. This issue has neither been discussed while reviewing the judgement. He has highlighted following observations of Hon’ble Apex Court made in the judgements cited below:
Executive Committee of Vaish Degree College v. Laxmi Narain AIR 1976 Supreme Court 888. Sitaram Kashiram Konda v. igment Cakes and Chemicals fg. ) and Dipak Kumar Biswas v. Director of Public Instruction .
9. Learned Counsel for the appellant has further contended that the suit itself was hopelessly barred by Law of Limitation. Specific findings in this regard were recorded by the appellate court which were not dealt with by the court below while reviewing the judgement. The suit itself was infirm in view of the provisions contained under Section 3(1) of the Limitation Act, 1967 which provides as under:
Subject to the provisions contained in Section 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as defense.
In the present case, the services of the plaintiff-teacher were, in fact, terminated w.e.f. 7.5.1982. The alleged cause of action had accrued on 15.10.1982 while the suit was presented before the trial court almost five years after the alleged date of cause of action. Three years’ limitation as prescribed under Article 58 of the Limitation Act had already elapsed, the suit was not even maintainable vide B. Udeypal Singh v. Laksmi Chand AIR 1935 Allahabd ?46 (Full Bench) and State of Punjab and Anr. v. Balkaram Singh (2007) AIR SCW 240).
10. As per learned Counsel for the appellant, the institution is a minority institution, as such, it is governed by its own rules and regulations and the provisions of Intermediate Act were not applicable and, as such, there was no need of prior approval of the District Inspector of Schools, Farrukhabad. In support of his submissions, he has further placed reliance on the judgement pronounced by the Hon’ble Supreme Court as reported in C/M St. John Inter College v. Girdhari Singh in which it has been provided that prior approval of Inspector, Regional Inspectors of Schools is not a condition precedent for awarding major penalty or issuing order of termination of services against a teacher of such minority institution. Section 16(3)(a) is not applied to minority institution.
11. The learned Counsel for the appellants has further contended that the present first appeal from order has been filed under order 43(1)(w) read with Section 104 C.P.C. The impugned judgement and order has been passed while reviewing the earlier judgement under order 47 of Rule 1 of C.P.C. there is provision under order 47 Rule 7(1) of C.P.C. which provides that
An order of the Court rejecting the application shall not be appealable; but an order granting the application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.
12. Vide Section 104 (2) C.P.C. no appeal shall lie from any order passed in appeal under this Section. In the present case the impugned order was passed in regular first appeal under Section 96 of C.P.C. in Civil Appeal No. 11 of 1991 (Management Committee Farrukhabad v. Rose Mary Lal) and not in the proceedings under Section 104 of C.P.C. that restricts the scope of any further appeal from an order passed under Section 104 and not otherwise.
13. Reliance has been placed on a case “Ramaswamy Reddiar v. Chinna Sithammal AIR 1976 Madras 63, (para 3 and 4)- In order to attract Section 104(2), the appeal should be falling under Section 104. If the appeal is under Section 96 and not under Section 104, Sub-section (2) of the latter Section is not applicable. If it is construed otherwise the position would be anomalous. Sri Aashish Agarwal, learned Counsel has taken the court to a comparative chart to highlight various points appearing in order of the Review Court and that of the judgement of the Appellate Court to demonstrate that the court while reviewing the earlier judgement has totally re-assessed, re-appraised, analysed the entire evidence and has arrived at an entirely different conclusion. This is beyond the scope of order 47 Rule-1 of the C.P.C. This is not permissible under law.
14. Sri Atul Dayal, learned Counsel for the respondent No. 1, Smt. Rose Mary Lal, has strongly opposed the appeal. According to him the court below has rightly reviewed the earlier judgement and order which was erroneous. The services of the plaintiff-respondent were illegally terminated without giving her any opportunity of hearing or show cause. Principles of natural justice were flagrantly violated. The approval of District Inspector of Schools was not sought before terminating the services of the plaintiff-respondent. The suit against the said order was rightly decreed and 16.2.1991 in favour of the plaintiff-respondent. Due to continuance of prolonged litigation, the plaintiff-respondent could not receive fruits of litigation and benefit.
15. He has led the court to the contents of the plaint, judgement of the trial court, submissions made in the review petition and the judgement passed by the court on 16.12.1996. It has been contended by Sri Atul Dayal that the order dated 30.5.1992 passed by the lower appellate court was against the record and suffered from other mistakes on the face of the record and it deserves to be rectified. The relevant facts were incorrectly appreciated and wrong presumptions were drawn without taking into consideration the evidence and material on record. The school is a re-recognised institution by the U.P. Government. The plaintiffs services were entirely satisfactory. She had to seek leave under compelling circumstances on medical grounds and due to other reasons. After the summer vacations of 1982, the institution was re-opened on 1st July. The Principal of the institution did not permit the plaintiff-respondent to sign in the attendance register. She was prevented to work. However, the petitioner had responded through the letter sent to her by the Management, putting forth her version and explained her absence from duty. The petitioner was, in fact, dismissed from services without holing a proper enquiry.
16. Sri Atul Dayal, has further submitted that on the strength of judgements of the Hon’ble Apex Court and other High Courts vide . that no appeal lies from an order passed in appeal, it can be filed only against the order of trail judge. As per the learned Counsel for the respondent No. 1, even otherwise, once the first appeal has been filed and decided, the present first appeal is not maintainable. The only remedy available to the appellant was to file a second appeal. He has further drawn the attention of the court on the judgements of the Hon’ble Apex Court in the case reported in A.I.R. 1975 S.C. 1185 and (2005) 3 S.C.C. 427 (para 28, 32 and 34) holding that the effect of allowing a review would be that the earlier decree is suspended and new decree has come in existence, as such, the new decree can not be treated as an order which will remain a decree and only remedy available to the appellant is to challenge the new decree.
17. It has further been submitted by Sri Atul Dayal that as per provisions contained in the Order 47 Rule 7(1) C.P.C., an order allowing an application for review can be challenged by an appeal from an order or in an appeal from the decree prepared by virtue of an order finally passed in the suit. The respondent No. 1-appellant had rightly sought review of the order passed in the appeal. In fact, the appellate court had allowed the appeal on the basis of the record which was not before the trial court. Thus there was error apparent on the face of the record and seeking a review was the proper remedy sought by the respondent A judgement can be reviewed on the request by a party or by the itself. The court can consider only the issues which were pleaded in the present case. The issue of limitation was never taken in the written statement nor such issue was assailed. Sri Atul Dayal in support of his submissions has placed reliance on the Hon’ble Supreme Court judgement vide (2005) 4 S.C.C 741 para 88, 89, 90, 91 and (2005) 3 S.C.C. 451, para 9, 10, 11.
18. As per Sri Atul Dayal, learned Counsel for the respondent No. 1, the appellate court had committed error of law and travelled beyond the pleadings. There was no pleadings regarding the maintainability of the suit nor any specific issue was framed. In this regard he placed reliance on (2003) 8 S.C.C. 40, para 8, 9 and 17and 1969 S.C A.I.R. 1291 (1293). Lastly he has submitted that the review petition was rightly allowed and the judgement and order passed by the appellate court does not require interference. I have heard learned Counsel for the parties and perused the material on record. I have carefully gone through the two judgements of the court below and the pleadings of the parties including the cases cited before me.
19. It emerges from the record that the court below in its judgement has, in fact, re-appreciated the evidence on record. It has substituted its own opinion on the merits of the case. Section 114 read with Order 47 Rule-1 of C.P.C. prescribes the limitations for entertaining a review petition. These limitations are that a party seeking review of the of the judgement has discovered a new and important matter or evidence, which after exercise of due diligence was not within its knowledge or could not be produced by it at the time when the decree was passed or the order issued on account of some mistake or error apparent on the face of the record or for any other sufficient reason.
20. The condition precedent for entertaining the review would be to record the finding as to whether at the initial stage the party has acted with due diligence. There is sufficient force in the submission of the learned Counsel for the appellant that the court below under the garb of dealing with the review application has re-appreciated the entire evidence on record and has arrived at a different conclusion on the questions of the fact, different than earlier conclusion recorded by the then Civil Judge. The court below has failed to record any finding that what was the error apparent on the face of the record and what new material was discovered by the applicant seeking review. In S. Nagraj and Ors. v. State of Karnataka and Anr. 1993 Supp (4) SCC 595, the Hon’ble Apex Court considered the scope of review and observed as under:
Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law, the courts and even the Statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice.
The same view has been reiterated by the Hon’ble Apex Court in Oriental Insurance Co. Ltd. and Anr. v. Gokulprasad Maniklal Agarwal and Anr. . In Sow. Chandra Kanta and Anr. v. Sheik Habib , the Hon’ble Apex Court dismissed a review application observing as under:
A review of a judgement is a serious subject and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave of error is crept in earlier by judicial fallibility.
21. This Court has also taken note of the fact that the plaintiff’s services were terminated on 7.5.1982 and she had knowledge of this order. The suit itself was filed after more than three year i.e. in April, 1987. The court can not ignore this legal infirmity while dealing with subject matter in dispute. The suit for permanent injunction was sought by the plaintiff in April, 1987 while her services had already been terminated on 7.5.1982. The order of termination had already been implemented and has exhausted itself and there was nothing left to done and, as such, no injunction could have been granted. The plaintiff had sought specific performance of contract of employment of her personal services, she could have sought relief for alleged wrongful termination of her services. The court below had fallen in error in decreeing the suit, granting declaration when admittedly in April, 1987 she was not working as Assistant Teacher. She had ceased to be an employee of the appellants’ institution on 7.5.1982. It is also apparent from the record that the petitioner has remained absent from her duties for many times without obtaining permission of the competent authority or getting her leave sanctioned.
22. I am of the opinion that the judgement and order passed in appeal on 30.5.1992, setting aside the trial court’s judgement and decree dated 16.2.1991 was just and proper and it required no interference. In the present case, the application for review was entirely misconceived. The court has exceeded its jurisdiction in allowing the application seeking review merely because it had taken a different view in construction of the documents or materials which were available on record. The review by no means, is an appeal in disguise. In view of above discussions, the appeal is allowed with costs. The impugned judgement and order dated 16.12.1996 is set aside. The order dated 30.5.1992 passed by the appellate court i.e. Second Additional Civil Judge, Farrukhabad is upheld and shall continue to operate.