SBCMA No.507/1995 Smt. Sundarlata Vs. Chairman, Municipality, Sadulshahar & Anr. -{ 1 }- S.B. Civil Misc. Appeal No.507/1995 Smt. Sundarlata Vs. Chairman, Municipality, Sadulshahar DATE OF ORDER : - 8.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.HS Sidhu, for the appellant. Mr.BS Sandhu, for the respondent. <><><> Heard learned counsel for the parties. The appellant-plaintiff filed the suit for injunction on the ground that she was appointed on the post of Mohari (typist) vide order dated 8th Oct., 1975 with grade pay 110- 5-160-8-200-10-230. Her services were confirmed vide order dated 2nd May, 1977 in the same pay scale. The respondent-defendant is contending that plaintiff-appellant was not appointed on the post of Mohari (typist) and in fact, she was appointed in the pay scale of Rs.90-150. She has been wrongly paid salary in the pay scale of Rs.110-230, therefore, the respondent-defendant is entitled to recover the excess amount paid to the plaintiff. For this, order was SBCMA No.507/1995 Smt. Sundarlata Vs. Chairman, Municipality, Sadulshahar & Anr. -{ 2 }- passed on 30th July, 1987 by the Executive Officer, Municipal Board, Sadulshahar. On the basis of pleas taken by the parties in the trial court, as many as 11 issues were framed. The issue no.1 was that whether the plaintiff was appointed on the post of Mohari (typist) vide order dated 8th Oct., 1975 in the pay scale of Rs.110-5-160-8-200-10-230. This issue was decided by the trial court in favour of the plaintiff. The issue no.2 was with respect to the fact that whether plaintiff was confirmed on the said post in the same pay scale and this issue was also decided in favour of the plaintiff by the trial court. Before confirmation of the plaintiff on the post, she was kept on probation was also finding recorded by the trial court. The trial court rejected the defendants' defence that suit is barred by time and decided issue no.7 in favour of the plaintiff. The issue of court fees was also decided in favour of the plaintiff. However, the trial court held that the order dated 21st Oct., 1981 passed by the Executive Officer, Municipal Board Sadulsahar as well as order of the Executive Officer 30th July, 1987were legal. The trial court also held that the suit of the plaintiff is not maintainable in view of Section 310 of the Rajasthan Municipalities Act, SBCMA No.507/1995 Smt. Sundarlata Vs. Chairman, Municipality, Sadulshahar & Anr. -{ 3 }- read with Section 41H of the Specific Relief Act. Being aggrieved against the dismissal of the suit of the plaintiff vidd judgment and decree dated 2nd June, 1992, the plaintiff-appellant preferred regular first appeal before the court of Addl. District Judge No.1, Sri Ganganagar. The learned appellate court after recording all the findings in favour of the appellant even on the issue which were decided against the plaintiff -appellant by the trial court and after upholding the findings, which were in favour of the plaintiff, remanded the case back to the trial court for deciding the issue no.9 afresh. Issue no.9 is a issue of law after evidence because issue no.9 says only that whether plaintiff's suit was not maintainable in view of Section 310 of the Rajasthan Municipalities Act read with Section 41H of the Specific Relief Act. Learned counsel for the appellant submitted that the appellate court committed serious error of law in remanding the matter to the trial court after recording all the findings in favour of the plaintiffs on the merit of the case. The appellate court itself could have decided the issue no.9 on the basis of material available on record. It is also submitted that in fact, it is clear from the findings recorded SBCMA No.507/1995 Smt. Sundarlata Vs. Chairman, Municipality, Sadulshahar & Anr. -{ 4 }- by the appellate court itself that appellate court was of the view that no recovery could have been effected from the plaintiff-appellant and the suit was not barred. Even after recording this finding, the matter has been remanded to the trial court. It is also submitted that the matters cannot be remanded by the civil court unless they fall in any of the provisions under Order 41 Rule 23 and under Order 41 Rule 25 CPC. It is also submitted that appellate court possesses all the powers of the trial court and can decide the suit itself. It is submitted that in a matter of employment of the year 1975, the defendants specifically admitted the order dated 8th Oct., 1975 wherein it is clearly mentioned that the pay scale of the plaintiff shall be Rs.110-5-160-8-200-10- 230. Learned counsel for the respondent submitted that the plaintiff's suit was barred by law and further the trial court has decided the issue in favour of the defendants that the defendants passed the legal order by giving different pay scale to the plaintiff. I considered the submissions of learned counsel for the parties and perused the reasons given by the appellate court. SBCMA No.507/1995 Smt. Sundarlata Vs. Chairman, Municipality, Sadulshahar & Anr. -{ 5 }- The appellate court specifically held that plaintiff was appointed by the order dated 8th Oct., 1975 in a pay scale of Rs.110-5-160-8-200-10-230 and thereafter, she was confirmed on the post of typist by order dated 2nd May, 1977 in the same pay scale of Rs. 110-5-160-8-200-10- 230. The appellate court held that issue nos. 4 and 5 were only rebuttal issues and when the issue no.1 and 2 have been decided in favour of the plaintiff then the trial court committed error of law by deciding issues nos. 4 and 5 against the plaintiff-appellant. The first appellate court clearly held that the order passed by the Executive Officer, Sadulsahar dated 21st Oct., 1981 and 30th July, 1989 are illegal. In view of the above reasons, there was no occasion for the first appellate court to remand the matter to the trial court. The appellate court itself should have passed the decree against the respondents in the light of the decision given on issue no.1 and 2 as well as on issues nos. 4 and 5 the appellate court should not have remanded the matter to the trial court. The appellate court itself should have decided the issue no.9. It is clear from the facts mentioned above, the appellant's suit was maintainable in peculiar SBCMA No.507/1995 Smt. Sundarlata Vs. Chairman, Municipality, Sadulshahar & Anr. -{ 6 }- facts of the case and was not hit by the Section 310 of the Municipalities Act or was not barred by Section 41H of the Specific Relief Act. The appeal could have been remanded to the first appellate court after setting aside the order of remand, but looking to the peculiar facts of the case that appellant is in service since 1975 on the post of typist and the two courts below held that she was given appointment on the post of typist vide order dated 8th Oct., 1975 and she has been confirmed on said post vide order dated 2nd May, 1977, I do not find any reason for remanding the matter to the first appellate court for merely passing a decree in favour of the plaintiff, which will amount to committing the same mistake, which was committed by the first appellate court, therefore, in peculiar facts and circumstances, the appeal is allowed. The order of the appellate court dated 28th Sept., 1995 and the judgment and decree of the trial court dated 2nd June, 1992 are set aside. The plaintiff's suit is decreed. The respondents are restrained from effecting any recovery from the plaintiff in pursuance of the order passed by the Executive Officer of the Municipal Board Sadulsahar and it is held that plaintiff was appointed on the post of typist vide SBCMA No.507/1995 Smt. Sundarlata Vs. Chairman, Municipality, Sadulshahar & Anr. -{ 7 }- order dated 8th Oct., 1975 in the pay scale of Rs. 110-5- 160-8-200-10-230. (PRAKASH TATIA), J. c.p.goyal/-