Judgment:
M.S. Vaidya, J.
1. This is defendant's Appeal challenging the decree passed on 28-8-1990 by the learned Additional District Judge, Ambajogai, dismissing the Appeal preferred by the present-appellant, The Appeal has been admitted only on ground Nos. 3 and 4 in the Appeal-Memo. Ground No. 3 in the present Appeal-Memo pertains to the contention of the appellant that the Civil Court had no jurisdiction to entertain and try the suit. It was contended that the matter was governed by the Industrial Disputes Act, in as much as only the Labour Court has got the exclusive jurisdiction to try and decide the matters relating to termination and dismissal of service. Ground No. 4 pertains to the plea of present-appellant that the present suit was barred by principle of res-judicata, in view of previous Regular Civil Suit No. 22 of 1972.
2. The relevant facts may be stated briefly, at the outset:-
The respondent was appointed as a Clerk with the appellant-Agriculture Produce Market Committee on 10-6-1961. In the course of his service a show-cause notice came to be issued to him, alleging that he was guilty of certain misconduct. A charge-sheet was also served upon him. The respondent had replied the said charge-sheet and had denied all the charges levelled against him. However, no formal inquiry was held by the appellant-Market Committee and a resolution was passed terminating the services of the respondent since 1-11-1969. A sanction of the District Deputy Registrar was necessary for termination of service, but he had declined to accord sanction to the termination of service, in view of the breach of mandatory provisions prescribed by Rules under Maharashtra Agricultural Produce Market Committee, 1963. The District Deputy Registrar himself held an inquiry in the matter and found that none of the allegations levelled against the respondent were proved. Under a letter dated 22/28-9-1970 (Exh. 39), the District Deputy Registrar informed the Committee that no charges were proved against the present-respondent. The Committee was requested to allow him to join his duties. It was also requested that a separate proposal for the absence period be made out. Though the compliance of this direction was sought by the District Deputy Registrar, no action was taken by the appellant-Committee. Thereafter on 1-10-1970, the respondent applied to the Chairman of the appellant-Committee (vide Exh. 40) requesting him to allow the respondent to join the duties. Several requests were made, but no action was taken by the appellant-Committee. Therefore, the respondent preferred an Appeal under Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 before the Divisional Joint Registrar, Co-operative Societies, Aurangabad. After hearing that Appeal, the Divisional Joint Registrar passed on order dated 10th August, 1971 (Exh. 41) holding that the action of the present-appellant in removing the present-respondent from his service with effect from 1-11-1969 was ultra-vires the provisions of the Staff Service Rules as well as the relevant Rule 103 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967. The Appeal was consequently allowed and a direction was issued to the present-appellant not to prevent the present-respondent from discharging his duties as a Clerk with immediate effect. As regards the absence, it was directed that the same should be regulated under Rule 35 of the Staff Service Rules. Inspite of that decision, the appellant was not allowed to join the duty. After his two letters dated 18-8-1971 and 25-8-1971 (Exhs. 43 and 44), reply dated 10th December, 1971 (Exh. 45) was issued only to the effect that certain directions were sought from the District Deputy Registrar. Though the reply of the D.D.R. was received (Exh. 46), the appellant did not take any further action to allow the respondent to join his duty. A notice issued by him, by R.P.A.D., (Exh. 48) was refused. After all this had happened, the respondent filed on 10-2-1972, Regular Civil Suit No. 22 of 1972 in the Court of Civil Judge, Jr. Dn. Kein for declaration that he be declared to be in continuous service of the present-appellant and that his arrears of salary be ordered to be paid to him. It appears that some evidence was also recorded in that suit, but ultimately when the matter was being argued, it was found that the suit was instituted before the completion of the period of notice that was contemplated by section 55 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963. Realising the technical obstacle, an application was preferred on behalf of the present-respondent in that Court, seeking permission to withdraw the suit. A copy of the said application with orders thereon are at Exh. 78. The application came to be rejected thereby refusing permission to withdraw the suit, but an order under Order VII, Rule 11 C.P.C. was passed on the plaint directing the rejection of the plaint on the ground that it was a premature plaint. Thereafter, the present-respondent filed R.C.S. No. 202 of 1977 against the present-appellant for a declaration that the plaintiff continued in the regular service as a Clerk in the service of the A.P.M.C. Dharur, and for recovery of Rs. 8,232.95 paise towards the arrears of salary.
3. The trial Court decreed the suit after a very elaborate Judgment. The matter was carried by the present-appellant to the District Court and the learned Addl. District Judge who heard the Appeal did not find favour with the contentions raised by the present-appellant. Accordingly, he dismissed the Appeal. On this background, the present Appeal was filed.
4 As regards the point regarding bar of jurisdiction of the Civil Court, no specific provision was ever relied upon for the purposes of showing that a suit of the present type was barred by any specific provision of law. The learned Civil Judge who dealt with the matter rightly pointed out that a suit for declaration of a status that the plaintiff continued to be in the service was a simple suit seeking declaration of a Civil right and further that the claim for arrears of salary was only a consequential relief thereof. Accordingly, he held that in the absence of any specific bar of any legal provision in the institution of the suit, the suit was perfectly maintainable before the Civil Court. Even in the present Appeal-Memo, the provisions contained in Industrial Disputes Act, 1947 are vaguely referred to, but nothing was pointed out to show how the case of the present-respondent could attract the provisions of the aforesaid Act. It is to be noted particularly that, at least, two authorities namely, the District Deputy Registrar and the Divisional Joint Registrar, acting under the Co-operative Societies Act and the A.M.P.C. Act, have ruled that the petitioner did continue in service despite the alleged termination order putting an end to the services of the petitioner. It was, on this background, that the respondent-plaintiff had sought the declaration from the Civil Court also that he did continue in the service of the present-appellant. There is no reason whatsoever to hold that the suit was not within the jurisdiction of the Civil Court, Accordingly, the first point has to be answered in the negative holding that the suit was perfectly within the jurisdiction of the Civil Court.
5. The second contention in respect of which the Appeal has been admitted pertained to the application of principle of res-judicata. Indeed, it was very clear that the earlier Suit No. 22 of 1972 was filed prior to the expiry of the notice period as contemplated by section 55 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963. The respondent-plaintiff had, in fact, sought to withdraw the suit, but the Court had rejected that Application and had rejected the plaint itself in exercise of the power vested under Order VII, Rule 11 of the Code of Civil Procedure. The legality of this order was doubted before this Court, but the point appears to be quite clear. In P. Cotilingam v. State of Andhra Pradesh, : AIR1961AP488 , the learned Single Judge of Andhra Pradesh High Court relied upon observations of the Privy Council in Bhagchand v. Secretary of State , which read thus :-
'The consequence is that the appellants present position in regard to the taxes imposed on them is as if their action had never been brought. It was unsustainable in limine, They commenced their suit before the law allowed them to sue and can get no relief in it either by declaration or otherwise.'
This was in the context of institution of a suit against the State, prior to the expiry of the notice period contemplated by section 80 of the Code of Civil Procedure. When a similar question had arisen before the learned Single Judge of the Andhra Pradesh High Court, he concluded, on the basis of the aforesaid observations:-
'These observations admit of no ambiguity that a suit, which was instituted without proper compliance of the requirements of notice as enacted under section 80 of the Code of Civil Procedure was unsustainable and as such a suit must be deemed to have not been instituted at all.'
It was, therefore, held that the trial Court could properly reject the plaint under Order VII, Rule 11 of C.P.C. and that only could be the order made in the Revision which was being decided by the said Revisional Court.
6. Similar question had arisen before the Judicial Commissioner. Tripura in Union Territory of Tripura v. Indu Bhushan Guha and others A.I.R. 1963 Tripura, 48. In that matter, after the appearance of the defendants/revision petitioners in the suit, they had moved the Subordinate Judge for rejecting the Plaint of the respondent on the ground that the notice under section C.P.C. was not given at all. The learned Judicial Commissioner observed that the Court below should have been diligent in observing the provisions contained in Order VII, Rule 11 C.P.C., but instead of doing so it had proceeded to reject the application filed on behalf of the Government. Pointing out how the orders passed by the learned Subordinate Judge were wrong, the learned Judicial Commissioner proceeded to set aside the order and directed that the suit be dismissed as not maintainable.
7. Recently, the Supreme Court also was required to consider in Samar Singh v. Kedar Nath, : AIR1987SC1926 , the question as to at which stage of a proceeding, the Court could pass an order under Order VII, Rule 11 of the Code of Civil Procedure. The question had arisen in an Election Petition and the respondents had appeared in that matter, raising several contentions, one of which was that the cause of action was not disclosed. It appears that it was after the framing of the issues in the matter that the basic defect in the election petition was brought to the notice of the concerned authority. While dealing with the issue as to whether or not, at that stage, the authority could deal with the matter under Order VII, Rule 11, the Supreme Court observed:-
'If after framing of issues basic defect in the election petition persists (absence of cause of action) it is always open to the contesting respondent to insist that the petition be rejected under Order VII, Rule 11 and the Court would be acting within its jurisdiction, in considering the objection. Order VII, Rule 11 does not place any restriction or limitation on the exercise of Court's power. It does not provide for by necessary implication that power under Order VII, Rule 11 should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provision, it is open to the Court to exercise that power at any stage.'
It was specifically noted by the Supreme Court,
'While it is true that ordinarily preliminary objection as to maintainability of the petition on the ground of absence of cause of action should be raised by the respondent as early as possible but if a party raises objections after filing written statement the preliminary objection cannot be ignored.'
Thus, the mere fact that the plaint was ordered to be rejected under Order VII, Rule 11 C.P.C. at the stage of arguments after recording the evidence, could not afford the appellant the ground to contend that the aforesaid order was not legal or that it amounted to dismissal of the suit on merits of the case. In any event, it is very clear that no other issue was decided by the Court dealing with R.C.S. No. 22 of 1972 while rejecting the plaint.
8. If the rejection of the plaint was under Order VII, Rule 11 C.P.C., Order VII, Rule 13 C.P.C. was specific in detailing the consequence thereof. The aforesaid Rule reads thus:-
'23. The rejection of the plaint on any of the grounds hereinbefore mentioned or on the ground mentioned in Rule 14-A(5)(a) of Order VI shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.'
9. In the facts and circumstances of the present case as the plaint was rejected under Order VII, Rule 11 C.P.C., the subsequent suit namely, R.C.S. No. 202 of 1977 was not barred on that count. The learned Civil Judge had also proceeded to consider the matter on the principle of res-judicata underlying the provisions contained in section 11 of C.P.C. His discussion on the point, though not very material for the point raised in this Second Appeal, was very correct.
10. Under such circumstances, we find no reason whatsoever to interfere with the decisions given by the courts below. The Second Appeal is, therefore, dismissed with costs throughout.