Chattisgarh High Court
P.Surynarayan Aiyer vs M.P.Electricity Board And Others on 23 March, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal No. 108 of 2005
P. Surynarayan Aiyer son of Late K. P. Aiyer aged about 46 years Office
Assistant, Grade- I, Chhattisgarh State Electricity Board, Resident of
Priyadarshani Nagar, Raipur Chhattisgarh.
---- Appellant/Plaintiff
Versus
1. M. P. Electricity Board, Rampur Jabalpur, M. P.
2. Chhattisgarh State Electricity Board, Raipur Chhattisgarh.
3. Senior Accounts Officer, Chhattisgarh State Electricity Board, Gudiyari,
Raipur Chhattisgarh.
---- Respondents/defendants
For Appellant : None present
For Respondents : Mr. Manish Nigam, Advocate
Hon'ble Shri Justice Narendra Kumar Vyas
Order on Board
23.03.2022
1. This first appeal is directed against the judgment and decree dated
16-02-2005 passed by 10th Additional District Judge, Raipur in Civil
Suit No. 108-A/2004 whereby the appellant/ plaintiff's suit has been
dismissed.
2. The appellant/plaintiff has filed a Civil suit before the Civil Judge,
Class -2, Raipur, which was registered as Civil Suit No. 3-A/96,
wherein he has claimed that his pay be fixed from 16.12.1994 treating
his salary as Rs. 2100/- in place of Rs. 1950/-, which was dismissed
by the Civil Judge, Class- II. Against which, he preferred Civil Appeal
No. 6-A/2001 before the District Judge, Raipur. Learned District
Judge, vide its judgment dated 17-7-2001, has allowed the appeal
preferred by the plaintiff and declared the order dated 31-10-1995,
passed by Superintending Engineer, CSPDCL, Jagalpur is null &
void, directing the competent authority to re-fix the pay after adding
increment, which was granted earlier to the plaintiff on account of
sterilization operation of his wife.
3. The respondents have contested the case by filing written Statement,
stating inter-alia that against the judgment and decree dated on
11.07. 2001, the respondents preferred second appeal before this
Court, which was registered as Second Appeal No. 407/2001, during
pendency of this present suit, the said second appeal was dismissed
for want of prosecution, subsequently, the same was restored to its
original number.
4. Learned 10th Additional District Judge, Raipur, after appreciating the
oral and documentary evidence available on record, vide its judgment
dated 16th February, 2005 has dismissed the suit filed by the
appellant/appellant by recording the finding that suit as framed and
filed is barred by principle of res judicata as on the same subject
matter and between the same parties, defendants' second appeal
being Second Appeal No. 407 of 2001 is pending before the High
Court. The principle of res-judicata is acceptable in the facts of the
case and also held the matter is pending before the High Court unless
the High Court decided the case on merits, the trial Court can not
pass any decree in favour of the plaintiff and accordingly the suit was
dismissed. Against that he has preferred the instant first appeal
before this Court.
5. No one appeared on behalf of the appellant to argue the case.
6. Learned counsel for the respondents would submit that the judgment
& decree, which was relied upon by the plaintiff, while filing his suit for
grant of advance increments/increase of increment on account of
sterilization operation of plaintiff's wife has already been decided by
this Court vide order dated 07.09.2018 passed in Second Appeal No.
407 of 2001. The coordinate Bench of this Court, while allowing the
said second appeal filed by the respondents/CSEB, recorded a
finding in paragraph 13, which is extracted below.:
"13 Examining the document dated 21.12.1989, in touch stone of
the principles of law laid down by the Full Bench of the Madhya
Pradesh High Court in Ramchara (Supra), it is quite vivid that it is
merely an order issued by the M.P. Electricity Board which was
constituted under Section 5 of the Electricity Supply Act, 1949, it
has not been issued under the statutory provision having the force
of law and as such it will not fall within the meaning of"law" in force
as stipulated under Section 57(1) of the Act of 1872 and as such it
ought to have been proved in accordance with Section 78 of the
Act of 1872 and judicial notice of that document dated 21.12.1989
could not have been taken by the first Appellate Court ad the said
Court has committed illegality by taking judicial notice of the order
dated 21.12.1989 under Section 57(1) of the Act of 1872 which has
no force of law and which was required to be proved in accordance
with Section 78 of the Act of 1872 and on the basis of that decree
cannot be granted by the first Appellate Court in favour of the
plaintiff."
7. Since foundation led by the plaintiff for challenging the impugned
order has already been decided by the coordinate Bench of this
Court vide its judgment & decree dated 07.09.2018, passed in
Second Appeal No. 407 of 2001 and has set-aside the judgment
& decree dated 17.07.2001 passed by the learned District Judge
directing the re-fixation of the pay scale of the appellant/plaintiff
after adding increments on account of sterilization operation of
the wife of the plaintiff, therefore, the present appeal is also
deserves to be dismissed in view of the fact that the whole
foundation of agitating claimed by the plaintiff has already been
considered and negatived by this Court and no other ground has
also been raised in the instant appeal, therefore, the First appeal
deserves to be dismissed.
8. Accordingly, the first appeal, being devoid of substance, is liable
to be and is hereby dismissed. A decree be drawn-up
accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
amita
