RSA 78/2001 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. Das, learned Sr. counsel for the appellants. None appears for the respondents today. The appellants, who are the defendants in Title Suit No.105/1990, have f iled this appeal challenging the judgment and decree dated 02.05.2001 passed by the learned Civil Judge (Senior Division) No.1, Cachar at Silchar, in Title Appe al No.27/1998, dismissing the appeal preferred by them and upholding the judgmen t and decree dated 27.07.1998 passed by the learned Civil Judge (Junior Division ) No.4, Cachar at Silchar in the aforesaid suit, whereby and whereunder the suit of the plaintiff was decreed. The respondent as plaintiff instituted Title Suit No.105/1990 in the Cou rt of the learned Munsiff No.1, Silchar against the present appellants as defend ants, praying for a decree declaring that the modified order of transfer passed by the defendant board under the signature of the defendant No.2 vide office mem orandum dated 11.05.1990 modifying his transfer order from Guwahati to Silchar a nd transferring him to Tura instead of Silchar as unjust, improper, unfair and u nlawful apart from praying for a decree for permanent injunction restraining the defendants from transferring the plaintiff from Silchar to Tura pursuant to the modified transfer order dated 11.05.1990. The plaintiff in the plaint has plead ed that pursuant to the order of transfer dated 20.04.1990 transferring him from Guwahati to Silchar, he was released from Guwahati office on 02.05.1990 and the reafter joined his transferred place of posting at Silchar and while he was serv ing at Silchar, the said order of transfer dated 20.04.1990 was modified vide or der dated 11.05.1990 transferring him to Tura in place of Silchar. It is the ple aded case of the plaintiff that since the order of transfer has been implemented , there was no occasion for modification of the order of transfer. The defendants/appellants contested the suit by filing written statement contending inter alia that the transfer of dated 20.04.1990 was modified keepin g in view the exigencies of service and in public interest. The defendants, howe ver, in the written statement have admitted that the plaintiff pursuant to the t ransfer order dated 20.04.1990 joined the transferred place of posting i.e. Silc har prior to passing of the modified transfer order dated 11.05.1990. A plea rel ating to maintainability of the suit in view of Section 28 of the Rubber Act has also been raised. The learned Trial Court on the basis of the pleadings of the parties, fr amed the following issued for consideration and decision:- 1. Is the maintainable in its present form? 2. Is there any cause of action to the suit? 3. Whether this court has jurisdiction to try this suit? 4. Whether the transfer order dt. 11.5.90/c-8/ issued by the defendant was illegal? 5. To what relief if any, the plaintiff is entitled to? The plaintiff in support of the pleadings in the plaint examined himself as witness and also prove certain documents including the transfer order dated 20.04.1990, the release order from Guwahati office dated 02.05.1990 and the offi ce memorandum dated 11.05.1990, whereby and whereunder the earlier order of tran sfer dated 20.04.1990 has been modified, as Exts.-2, 3 and 4 respectively. The d efendants did not examine any witness, who have, however, cross-examined the pla intiff’s witness. The learned Trial Court upon appreciation of the evidences on record bot h oral and documentary has held that Section 28 of the Rubber Act, 1947 does not create any bar in institution of the suit as the jurisdiction of the Civil Cour t under Section 9 of the CPC cannot be taken away by the said provision under Se ction 28 of said Act. It has also been held by the Trial court that since the in itial order of transfer dated 20.04.1990 (Ext.-2) has been complied with before passing of the subsequent order dated 11.05.1990 (Ext.-4), the plaintiff having joined at Silchar, there is no question of modifying the same and which was done within 10 days from the date of joining at the transferred place of posting. Th e learned Trial Court, therefore, has passed the decree, as prayed for, by the p laintiff. Being aggrieved the appellants/defendants preferred Title Appeal No.27/1 998 in the Court of the learned Civil Judge (Senior Division), Cachar at Silchar , which has been dismissed by the learned First Appellate Court by affirming the judgment and decree passed by the learned Trial Court. The second appeal has been admitted for hearing vide order dated 08.08.2 001 on the following substantial questions of law:- (i) Whether the Courts below ere competent to interfere with the transfer or ders in the absence of plea of malafide? (ii) Whether the Courts below have the jurisdiction to try the suit filed cha llenging the order of transfer in view of the provisions embodied under Section 28 of the Rubber Act, 1947? Mr. Das, learned Sr. counsel for the appellants referring to the second substantial question of law formulated has fairly submitted that since the juris diction of the Civil Court in entertaining the suit questioning of the transfer order has not specifically been barred under any enactment and by the provision of the Rubber Act, 1947 being not related any service matter or conditions of th e service of the employees of the Rubber Board, the second substantial question of law does not arise in this proceeding as both the learned Courts below have r ightly held that the suit is maintainable. Referring to the first substantial question of law, it has been submitte d by Mr. Das, learned Sr. counsel for the appellants that since the employer has the authority to transfer its employee from one place to another for administra tive exigencies and on public interest, the learned Court below ought not to hav e interfered with the order of transfer in the absence of any plea relating to m alafide. It has also been submitted that though vide order dated 08.08.2001 the operation of the impugned judgment and decree has been stayed, the plaintiff has not joined the transferred place of posting at Tura. It is evident from Ext.-2, transfer order dated 20.04.1990 that the plai ntiff was transferred from Guwahati to Silchar and accordingly vide Ext.-3 docum ent dated 02.05.1990 the plaintiff was released from Guwahati so as to enable hi m to join his transferred place of posting at Silchar. It is an admitted positio n of fact that the plaintiff joined his transferred place of posting after his r elease on 02.05.1990 and only thereafter the office memorandum dated 11.05.1990 (Ext.-4) was issued by the defendants modifying the earlier order of transfer fr om Guwahati to Silchar to Guwahti to Tura. The order of transfer dated 20.04.199 0 having been complied with, there was no scope for modification of the same tha t too within a period of 10 days from the date of joining. The authority could h ave passed another order of transfer if the exigencies of service or public inte rest so required. In view of the above, I am of the view that no illegality has been commi tted by the learned Courts below in decreeing the suit of the plaintiff. Hence t he appeal stands dismissed. It would, however, not preclude the appellants from passing further orde r in the interest of public service and in administrative exigencies. It also op ens to the appellants to take disciplinary action against the plaintiff. The appeal stands dismissed. No cost.