Army Welfare Housing ... vs Rameshwar Dayal
2007 Latest Caselaw 1939 Del

JUDGMENT

J.M. Malik, J.

1. The respondent/plaintiff filed a suit for permanent injunction. According to him, he was appointed as chowkidar/watchman under the petitioners/defendants in April 1993 on a monthly salary of Rs. 500/- to look after and maintain the popular plants situated at Khasra No. 1418 to 1438 in Village Punjab Khor land, Delhi 81. In April 2002, he got increment in the sum of Rs. 250/- and his total salary stood enhanced to Rs. 750/- per month. In khasra godawari as well it was mentioned by the tehsildar that the respondent/plaintiff is the chowkidar/watchman of land of the petitioners. One Pratap used to give him salary every month. On 12th May, 2003 and 13th May, 2003, Pratap came to his house and told him that his services were not required. Under the circumstances, the respondent filed a suit for permanent injunction before the trial court on 14th May, 2003.

2. The petitioner/defendant had set up the following preliminary objection as well before the trial court:

That the suit for mandatory injunction filed by the plaintiff apart from being mala fide and motivated is not maintainable in law. The suit is barred by the provisions of Section 34 of the Specific Relief Act. It is submitted that the terms and conditions of the employment of the plaintiff with the defendants was on a temporary/fixed tenure contractual employment. The contractual fixed tenure employment ceased with effect from 12th October, 2003. As is evident from the above said facts, the plaintiff herein has filed a title suit for creating a right which is contrary to the terms of employment. The plaintiff in the present suit cannot seek to confer nor can be conferred the title/declaration which he is seeking in the aforesaid case. As is evident the plaintiff herein had been appointed on 'fixed tenure temporary appointment' by the defendant society. The terms and conditions of employment were accepted by the plaintiff, and therefore, now he cannot seek a declaration of such rights which the terms and conditions of appointment do not and cannot be conferred upon him in law. The suit for mandatory injunction filed by the plaintiff therefore deserves to be dismissed summarily.

3. On 20th April, 2004, the trial court framed three issues, which are reproduced as under:

1. Whether the present suit is not maintainable as barred by the provisions of Specific Relief Act? OPD

2. Whether the plaintiff is entitled to the decree of permanent injunction as claimed? OPP

3. Relief.

It was ordered that issue No. 1 be treated as preliminary issue.

4. On 15th April, 2005, the Civil Judge passed the impugned order. Its relevant portion is reproduced as under:

...Perusal of the file reveals that the case was fixed for arguments on preliminary issue since 20.4.04. In the suit it is defense taken by the defendant that the plaintiff was appointed on a contract and the contractual fixed tenure seized w.e.f. 12.10.2003 whereas the fact of appointment of any contract is denied by the plaintiff. In the circumstances, I am of the view that the issue cannot be decided merely on the basis of arguments as evidence needed for the proving of the fact of acceptance of any contract. So, the issue is kept pending to be decided along with other issues. Put up on 11.05.2005 for cross-examination of P.Ws. Chief by way of affidavit. Advance copy of the same will be supplied to the opposite party

5. On 11th May, 2005 when the matter was called by the trial court, the respondent/plaintiff was present but the petitioners/defendants were not present during the early hours. Case was adjourned to 11.30 a.m. Thereafter, the case was taken up at 11.40 a.m. Nobody was present and the case was fixed for 12.30 p.m. At 12.30 p.m. affidavits were filed on behalf of the plaintiff/respondent. None was present for the defendants. The case was adjourned to 8th August, 2005 for cross-examination of PWs.

6. On 8th August, 2005 the counsel for the petitioners/defendants could not attend the court due to illness. The case was adjourned to 28th September, 2005.

7. On 28th September, 2005 the petitioners/defendants moved an application that they wanted to file an appeal against the order dated 15th April, 2005. The trial court held that there is no sufficient ground for adjournment. The witness was examined and discharged. Nobody appeared on behalf of the petitioners/defendants to cross-examine the witness. The evidence of the respondent/plaintiff was closed and the case was fixed for cross-examination of petitioners/defendants witnesses on 16th November, 2005.

8. On 16th November, 2005 counsel for the petitioners/defendants stated that the appeal filed by the defendants was about to come for hearing within two days. He admitted that there was no stay of further proceedings. No defense witness was present. Adjournment was granted subject to payment of Rs. 500 as costs. Case was fixed for 11th January, 2006.

9. The respondent/plaintiff has proved on record a certificate dated 23rd August, 1994 (Ex.CW1/A) issued in his favor, which runs as under:

It is certified that Shri Rameshwar Dayal s/o Sh. Ram Swarup House No. 35 of Punjab Khor Village is employed herewith as a care taker of popular plants in Army Welfare Housing land at Punjab Khor Village.

He has also placed khasra godawaris.

10. On the other hand, the petitioners have yet to prove their case. However, they have placed on record the initial letter dated 8th June, 1994 of employment of chowkidar in favor of Rameshwar Dayal, the respondent/plaintiff. It goes to reveal that Rameshwar Dayal was appointed as chowkidar for Punjab Khor land situated at Delhi on a consolidated salary of Rs. 500/- per month for the period from 9th March, 1994 to 5th June, 1994. The petitioners have also placed on record other letters dated 7th November, 2002, 25th April, 2003 and 12th June, 2003, which go to reveal that the service of respondent was further extended from time to time. The petitioners have also placed on record the terms and conditions of the Service Rule. These rules are applicable to all ex-servicemen currently employed on a 'fixed tenure contract' basis by the AWHO and such ex-servicemen as may be employed on and after the commencement of these rules. Rules 7 and 9 of the Service Rules are relevant and it appears that these rules when proved and if applicable to the respondent/plaintiff would put the case of petitioners/defendants in an impregnable position.

11. I have heard the counsel for the petitioners. It is unfortunate that the counsel for the respondent did not turn up to assist the Court. The learned Counsel for the petitioners has reiterated the above-said points, argued that the impugned order passed by the trial court is not legally tenable, the same must be set aside and this Court should order that preliminary issue be decided first of all. In order to buttress his arguments he has cited following authorities reported in Executive Committee of Vaish Degree College, Shamli and Ors. v. Lakshmi Narain and Ors. AIR 1976 SC 888, The Hindustan Construction Company Limited v. G.K. Patankar and Anr. , Smt. J. Tiwari v. Smt. Jawla Devi Vidya Mandir and Ors. , New Satgram Engineering Works and Anr. v. Union of India and Ors. and Nandganj Sihori Sugar Company Limited, Rae Bareli and Anr. v. Badri Nath Dixit and Ors. .

12. The above-said authorities touch the case on merits. These are not to be considered at this stage, when the nub of problem lies somewhere else. The terms and conditions of the service of the respondent are yet to be proved. What are the terms and conditions till now is an impenetrable mystery. The questions raised by the respondent/plaintiff cannot be dismissed out of hand. Ex.CW1/A already proved by the respondent/plaintiff is a document of utmost importance. There is no inkling in this document that the respondent/plaintiff was appointed on temporary basis. Till now this document remains unrebutted. There is not even an iota of evidence that the original employment letter was served upon or furnished to the plaintiff/respondent. It is noteworthy that petitioners have failed to produce the original documents. There is no evidence to show that plaintiff/respondent affixed his signatures on any of the documents in token of receipt of originals or copies. In the preliminary objection it is stated:

...As is evident the plaintiff herein had been appointed on 'fixed tenure temporary appointment' by the defendant society. The terms and conditions of employment were accepted by the plaintiff, and therefore, now he cannot seek a declaration of such rights which the terms and conditions of appointment do not and cannot be conferred upon him in law....

There is neither evidence nor proof of alleged acceptance by the respondent/plaintiff. Dallops of mystery surround the case of the petitioners. As such it is too early to speak my piece on this matter. The problem must be investigated and discussed down to the earth. The petition is without merit.

13. It is difficult to fathom as to why the petitioners have pursued the matter in a lackadaisical manner. The impugned order pertains to 15th April, 2005. This petition was filed in this Court on 9th January, 2006. The plaintiff/respondent has already closed his evidence. The counsel for the petitioners did not appear before the trial court on one pretext or other and sought a number of adjournments.

14. The trial court has checked the record with precision and clarity. The petition is sans merits and deserves dismissal which I direct. Parties are directed to appear before the trial court on 7th November, 2007. The trial court is directed to take effective steps and expedite the proceedings. A copy of this order and file be sent to the trial court forthwith.