Mohammad Usman vs Vice Chancellor Of Jamia Millia ...
2017 Latest Caselaw 4636 Del

7
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+            FAO(OS) 380/2016 & CM 47557/2016

                                         Date of decision: 31st August, 2017

      MOHAMMAD USMAN                                      ..... Petitioner
                 Through:              Mr.Naushad Alam, Adv. along with
                                       appellant in person.

                          versus

      VICE CHANCELLOR OF JAMIA MILLIA ISLAMIYA
      UNIVERSITY & ORS.                 ..... Respondents
                    Through: Dr.Amit George, Ms.Himanshi
                             Gupta, Advs. for R-1

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE NAVIN CHAWLA

      SANJIV KHANNA, J. (Oral)

This intra court appeal impugns the order dated 2nd March, 2016 whereby the learned Single Judge has dismissed the application of the appellant to sue as an indigent person.

2. The appellant had filed civil suit for damages of Rs. 35 crores against the Vice Chancellor, the Controller of Examinations and the Head of the Department, Electrical, Faculty of Engineering, of the Jamia Millia Islamia University.

3. We have heard Mr. Naushad Alam, Advocate appointed by the State Legal Services Committee and the appellant who is

FAO(OS) 380/2016 Page 1 present in person. Counsel for the respondents is also present and has been heard.

4. The Appellant had taken admission in Bachelor of Engineering (Electrical) (evening) course in the Jamia Milia Islamia University in 2012.

5. First year annual examination was held in January 2013. The appellant had 'failed' as per the result published /declared in April - May, 2013. Copy of the marksheet issued in April-May, 2013 has not been placed on record by the appellant. Orally it is asserted that the marksheet was returned to the University, for the appellant had applied for reevaluation. The appellant had not kept a photocopy.

6. The appellant has not mentioned the date on which he had applied for reevaluation.

7. Upon reevaluation, a fresh marksheet dated 12th November, 2013 was issued. On reevaluation again the petitioner had failed.

8. The contention of the appellant is that after applying for reevaluation of the first year examination papers, he had attended second year classes in the year 2013. There was delay in declaration of the reevaluation result, which was published on 12th November, 2013. The appellant thereafter had appeared in the first year annual re-examination held in January 2014 as an ex-student. As the appellant only had about two months to prepare, he had failed in the re-examination held in January 2014. Had, and if, the appellant been informed about his failure in the first year annual examination

FAO(OS) 380/2016 Page 2 earlier, he would have begun preparations for the first year annual re-examination at an earlier point of time.

9. The appellant has also drawn our attention to three marksheets issued on different dates for the examinations held in January, 2014. In the first marksheet, dated 17th April, 2014, the appellant was shown as absent in five papers and having secured 17 marks out of 100 in Applied Sciences. The second marksheet dated 7th July, 2014 accepts that the appellant had appeared in six papers and marks against each paper were stated. However, the marks against Applied Sciences were mentioned as 8 out of 100 whereas in the first marksheet (dated 17th April, 2014) the appellant had scored 17 out of 100 marks. The third marksheet dated 13th August, 2014 would reflect that the discrepancy regarding Applied Sciences marks was corrected and the appellant was shown as having scored 17 out of 100 in Applied Sciences. Marks in the other five papers in the marksheet dated 13th August, 2011 are identical as recorded in the mark sheet dated 7th July, 2014.

10. In paragraph 6 of the plaint, the appellant had stated that he was given four different marksheets for the examination for the year 2014. It is also stated that issue of four different mark sheets for the same examination was not possible.

11. Having considered the contentions raised by the appellant, we are in agreement with the single judge that the plaint does not disclose cause of action. At the outset, we record that the appellant had failed in the re-examination held in January 2014, as per the

FAO(OS) 380/2016 Page 3 three marksheets, i.e. 17th April, 2014, 7th July, 2014 and 13th August, 2014. It is true that there were errors in the mark sheets dated 17th April, 2014 and 7th July, 2014 but this did not make any difference for the final outcome was the same, i.e. the appellant did not pass. This being the position, we fail to understand what loss was caused to the appellant on account of the said error. Claim for damages on this account is clearly unsustainable and ill founded.

12. On the first contention also, we do not think any claim for compensation or damages is made out and is sustainable as per the cause of action pleaded. As per the result declared in April-May, 2013, the appellant had failed. It was for the appellant to prepare himself for re-examination to be held in January, 2014, even if he had applied for reevaluation. The appellant could not have assumed that he would clear the first year examination held in January 2013 solely because he had applied for reevaluation. Attending the second year classes would not confer any right to be promoted to the second year.

13. The appellant does not contest, and has not questioned, that he had failed in the First year annual examination held in January, 2013 and January, 2014. After reevaluation also the appellant had been declared as failed. These results are not challenged. In these circumstances we do not think the plaint, as framed, discloses any cause of action for a suit for damages of Rs. 35 crores, which is rather fanciful. To claim damages, loss caused has to be shown, along with the causal connection linking the loss with the

FAO(OS) 380/2016 Page 4 negligence and errors by the defendants. As the appellant had failed, the alleged lapses in the factual matrix would not confer any cause of action in the absence of link and causal connection of the act of negligence with the "loss".

14. One of the contentions raised is that the application for suing as forma pauperis cannot be dismissed and rejected by examining the question of cause of action. The said aspect is no longer res integra, as the Supreme Court in Kamu @ Kamla Ammal vs. M.Manikandan & Anr. (1998) 8 SCC 522, had referred to Order XXXIII, Rule 5 of the Code of Civil Procedure to hold that an application for permission to sue as an indigent person can be rejected where the allegations in the plaint do not show and establish a cause of action. This being the position in the present case, we do not find any reason to interfere with the impugned order.

15. The appeal is dismissed without any order as to costs.

                                               SANJIV KHANNA, J


                                               NAVIN CHAWLA, J

AUGUST 31, 2017
RN




FAO(OS) 380/2016                                                    Page 5