SCA/9693/2008 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9693 of 2008 With SPECIAL CIVIL APPLICATION No. 9694 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= AHMEDABAD MUNICIPAL CORPORATION - Petitioner(s) Versus LILABEN HIRABEN - Respondent(s) ========================================================= Appearance : MR RM CHHAYA for Petitioner(s) : 1, MR MB GANDHI for Respondent(s) : 1, MR CHINMAY M GANDHI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/08/2008 ORAL JUDGMENT 1. RULE. Mr.M.B. Gandhi, learned advocate waives the service of notice of admission on behalf of the respondent. SCA/9693/2008 2/15 JUDGMENT 2. With the consent of the learned advocate appearing on behalf of the respective parties, both these petitions are taken up for final hearing. 3. As both these petitions arise out of the common order passed in the applications between the same parties, the same are being disposed of by this Common judgement and order. 4. By way of this petition under Article 227 of the Constitution of India, the petitioner – Ahmedabad Municipal Corporation has prayed for appropriate writ, order and/or directions, quashing and setting aside the impugned order dtd.11/7/2008 passed by the learned City Civil Judge, Ahmedabad (Mr.J.D. Vyas) in Civil Misc.Application Nos.297 and 141 of 2008, whereby the learned Judge has ordered that the order dtd.25/2/2008 passed by the Corporation be treated as cancelled w.e.f. 26/2/2008 and the service of the respondent be treated as continued. By the said impugned order the learned Judge also restrained the petitioner from making any interference or disturbance in the service of the respondent. 5. The respondent was serving as sweeper (Safai Kamdar) SCA/9693/2008 3/15 JUDGMENT with the petitioner Corporation. The mother of the respondent was working as a sweeper and she was declared unfit, and a representation was made by the respondent to the effect that she was the daughter of Hiraben Gendalbhai, even though she is wife of the son of Hiraben Gendalbhai and requested to appoint her as sweeper in place of Hiraben Gendalbhai. Thus, according to the Corporation, from the very initiation of her service, the respondent did not disclose correct facts and by disclosing false relationship, obtained the job with the petitioner as sweeper and therefore, chargesheet was served upon the respondent and as per the petitioner Corporation, regular inquiry was held and the inquiry officer after following due procedure of law and after giving sufficient opportunity of hearing to the respondent, made a report to the effect that the charges levelled against the respondent are proved beyond doubt. Thereafter, a regular show cause notice dtd.9/2/1995 was issued to the respondent for imposing final punishment. At that stage, the respondent herein instituted civil suit being Civil Suit No. 3400 of 1995 inter-alia praying for a declaration and permanent injunction. In the said suit, the respondent took out a notice of motion wherein SCA/9693/2008 4/15 JUDGMENT temporary injunction was prayed for by her. The said notice of motion came to be disposed of by the learned City Civil Judge holding that if any final order is passed by the petitioner Corporation, the same shall not be implemented for a period of 15 days. That thereafter, vide order dtd.24/10/2007, Civil Suit No. 3400 of 1995 came to be dismissed for default for want of prosecution. As per the petitioner Corporation, no steps were taken by the respondent for getting the aforesaid civil suit restored and therefore, vide order dtd.25/2/2008, the petitioner Corporation dismissed the respondent from service. That after the service of the aforesaid order, the respondent herein original plaintiff filed three different applications namely Misc.Civil Application No.141 of 2008 for disobedience of the order passed on the notice of motion; Misc.Civil Application No.142 of 2008 for condonation of delay as well as Misc.Civil Application No.297 of 2008 for restoration of the suit. It was contended on behalf of the respondent that order of termination dtd.25/2/2008 is in clear breach and in violation of the order passed below notice of motion whereby it was observed that if any final order is passed by the petitioner Corporation, the same shall not be implemented for 15 days and submitting SCA/9693/2008 5/15 JUDGMENT accordingly, in the Misc.Civil Application No.141 of 2008, it was requested to quash the order of termination dtd.25/2/2008. Simultaneously, in the Misc.Civil Application No.297 of 2008 the respondent prayed to restore the suit and as there was delay in preferring application for restoration, in Misc.Civil Application No.142 of 2008, the respondent prayed to condone the delay in preferring restoration application. While passing the impugned order below Misc.Civil Application No.297 and 141 of 2008, the learned City Civil Judge quashed and set aside the order of termination dtd.25/2/2008 and ordered to treat the same as cancelled w.e.f. 26/2/2008 by further ordering that the service of the respondent be treated as continued and further directed the petitioner Corporation to pass appropriate order of termination afresh and if any order is passed, the same shall not be implemented for a period of 15 days and further restrained the petitioner Corporation from making any interference or disturbance in the service of the respondent and the same shall be continued for 15 days after service of fresh order of punishment that may be passed by the petitioner Corporation. Being aggrieved by and dissatisfied with the order dtd.11/7/2008 passed by SCA/9693/2008 6/15 JUDGMENT the learned City Civil Judge below Misc.Civil Application Nos.297 and 141 of 2008, the petitioner Corporation has preferred both these Special Civil Application under Article 227 of the Constitution of India. 6. Mr.R.M.Chhaya, learned advocate appearing on behalf of the petitioner Corporation has vehemently submitted that the impugned order passed by the learned City Civil Court is absolutely illegal and arbitrary which requires to be quashed and set aside. It is submitted that the civil suit is dismissed for non-prosecution and the respondent had submitted Misc.Civil Application No. of 297 of 2008 for restoration of the suit and as there was delay in preferring the restoration application, the respondent had filed Misc.Civil Application No.142 of 2008 to condone the delay caused in preferring restoration application and simultaneously the respondent also submitted Misc.Civil Application No.141 of 2008 for disobedience of the order passed below notice of motion to the effect that while disposing of the notice of motion it was ordered that if any final order of punishment is passed, the same shall not be implemented for a period of 15 days. However, without passing any order in Misc.Civil Application No.141 of 2008 for condonation of delay in restoration application SCA/9693/2008 7/15 JUDGMENT and without restoring the suit by allowing Misc.Civil Application No.297 of 2008, the learned trial court passed the impugned order, which cannot be sustained. It is submitted that unless and until the delay is condoned and the suit is restored, such an order could not have been passed by the trial court, quashing and setting aside the order of termination directing the petitioner Corporation to reinstate the respondent and to pass afresh order. 7. It is also further submitted that even on merits also, the learned trial court was not justified in passing such an order quashing and setting aside the order of termination dtd.25/2/2008 and directing the petitioner to reinstate the respondent treating the order to be 25/2/2008 as cancelled. It is submitted that the learned trial court has committed an error in quashing and setting aside the order dtd.25/2/2008 and holding that the implementation of the same is in violation of the order passed below notice of motion. It is submitted that the order passed below notice of motion is to be treated and considered during the pendency of the suit only and moment of the suit is disposed of, the interim order below notice of motion will not survive and therefore, when the suit itself SCA/9693/2008 8/15 JUDGMENT was dismissed for non-prosecution, the order passed below notice of motion came to an end and the order passed below notice of motion was not in existence when the order dtd.25/2/2008 came to be passed and implemented and therefore, the learned trial court has materially erred in holding that the order of termination dtd.25/2/2001 and its implementation is in breach of the notice of motion. Mr.Chhaya, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Allahabad High Court, Lucknow Bench in the case of Nagar Mahapalika, Lucknow Vs. Ved Prakash, reported in AIR 1976 Allahabad 264 and it is submitted that as held by the Allahabad High Court when a suit was dismissed for default, but restored, the interim injunction order would cease on dismissal of the suit and would not automatically revive on setting aside of dismissal order and restoration of suit. By making above submissions and relying upon the above decision, Mr.Chhaya, learned advocate appearing on behalf of the petitioner has requested to allow both the petitions by quashing and setting aside the impugned order dtd.11/7/2008 passed by the learned City Civil Judge, Ahmedabad (Mr.J.D. Vyas) in Civil Misc.Application SCA/9693/2008 9/15 JUDGMENT Nos.297 and 141 of 2008. 8. Both these petitions are opposed by Mr.M.B. Gandhi, learned advocate appearing on behalf of the respondent – original plaintiff. He has relied upon the decision of the Hon'ble Supreme Court in the case of Ganesh Prasad Sah Kesari and another Vs. Lakshmi Narayan Gupta, reported in AIR 1985 S.C. 964 in support of his submissions that once suit is restored, ad-interim order would automatically revive. He has also relied upon the another decision of the Hon'ble Supreme Court in the case of Prithwi Nath Ram Vs. State of Jharkhand and others, reported in (2004) 7 SCC 261 more particularly Head-Note-B of the said decision. He has also further submitted that even in case where suit is dismissed for non-prosecution and/or dismissed, the order passed below notice of motion continues. It is further submitted that while disposing the notice of motion it was ordered that as and when order of punishment is passed, the same shall not be implemented for a period of 15 days, in the present case, the order of termination came to be passed on 25/2/2008 and came to be implemented and served upon the respondent immediately on the next day and therefore, the same was SCA/9693/2008 10/15 JUDGMENT in breach of the order passed below notice of motion and therefore, the trial court has rightly quashed and set aside the order dtd.25/2/2008 directing to treat it as cancelled and by further directing the petitioner Corporation to reinstate the respondent immediately. Submitting accordingly, it is requested to dismiss both the petitions. 9. Heard the learned advocates appearing on behalf of the respective parties at length. 10.At the outset, it is required to be noted that at the time of institution of the suit, the respondent – original plaintiff had taken out notice of motion praying for temporary injunction and the said notice of motion came to be disposed of by directing that if any final order is passed by the petitioner Corporation, the same shall not be implemented for a period of 15 days. However, subsequently, the Civil Suit came to be dismissed for non- prosecution by the learned City Civil Court on 24/10/2007. Normally any order in interim application passed below application Ex.5 and/or notice of motion, is to be confined during the penedency and final disposal of the suit. In the present case, the suit came to be dismissed for non-prosecution on 24/10/2007 and thereafter, even SCA/9693/2008 11/15 JUDGMENT after a period of almost five months, no steps were taken by the respondent - original plaintiff to restore the suit. The petitioner Corporation passed order of termination dtd.25/2/2008 and dismissed the respondent from service and the said order of dismissal came to be implemented on 26/2/2008. Thus, at the relevant time, when the order was passed on 25/2/2008 and implemented on 26/2/2008, the suit was dismissed for non-prosecution and the suit was not in existence and consequently there was no order below the notice of motion in existence inasmuch as the order passed below notice of motion is automatically ceased to be in operation, moment the suit is dismissed and therefore, it cannot be said that at the relevant time when the order dtd.25/2/008 was passed and implemented, the interim order was in operation. Therefore, the order of termination can not be said to be in breach of the order passed below notice of motion. 11.Now, so far as the contention on behalf of the respondent relying upon the aforesaid two decisions of the Hon'ble Supreme Court that when the suit is restored, ad-interim relief would automatically revive, is concerned it is required to be noted that firstly as on today, there is no SCA/9693/2008 12/15 JUDGMENT specific order passed by the learned City Civil Court restoring the suit. Not only that even the delay in submitting the restoration which was prayed by submitting Misc.Civil Application No.142 of 2008 is also not condoned. Thus, as on today, neither the delay in preferring the restoration application is condoned nor the suit is restored to file and therefore, the contention on behalf of the respondent that once the suit is restored, ad-interim relief would revive, cannot be accepted and the said question does not arise. Thus, in the facts and circumstances of the case, the aforesaid two decisions would not be helpful to the respondent – original plaintiff at this stage. 12.Even otherwise, even otherwise assuming that once the suit is restored and the ad-interim order would revive, in that case also, the further question which is required to be considered is that what will happen to the action which is already taken during the time when the suit was dismissed for non-prosecution and the same was not restored and thereafter the suit is restored. As per this court in such a situation where any action is already taken during the time when the suit is dismissed for non-prosecution and thereafter the suit is restored and if SCA/9693/2008 13/15 JUDGMENT the contention of the respondent is accepted, the ad- interim order would revive on restoration of the suit, in that case also, any action taken during the time when the suit was dismissed for non-prosecution and was not in existence, the said revival of ad-interim relief on restoration of the suit would not affect the action already taken during the time when the suit was not in existence and consequently it cannot be said that such an action was illegal and/or in breach of ad-interim order / injunction therefore, in the present case the action was taken when the suit was dismissed for non-prosecution and therefore, even if the contention and submission of the respondent that on restoration of the suit, ad-interim relief passed below notice of motion would automatically revive, is accepted, in that case also, as stated above, it will not affect any order passed by the Corporation when the suit was dismissed for non-prosecution and when the suit was not in existence Further, in the present case as stated above, neither there is any order passed by the Court to restore the suit nor even the delay in preferring the restoration application is condoned. 13.Even the contention on behalf of the respondent that even if the suit is dismissed for non-prosecution, the SCA/9693/2008 14/15 JUDGMENT interim order passed below notice of motion continues, cannot be accepted, as any interim order and/or interlocutory order passed below application Ex.5 or below notice of motion is always to be treated during the pendency of the suit and moment the suit is dismissed either on merits or for non-prosecution, the said interim relief and/or interim injunction and/or interlocutory order would ceased to be in operation and therefore, such a contention that even if the suit is dismissed for non- prosecution the order passed below notice of motion would continue, cannot be accepted. 14.Considering the above, the impugned oder passed by the learned trial court without disposing the main application without condoning the delay in submitting the Restoration Application and quashing and setting aside the termination order dtd.25/2/2008 and to treat it as cancelled and directing the petitioner Corporation to reinstate the respondent w.e.f. 26/2/2008, cannot be sustained and the same deserves to be quashed and set aside. 15.For the reasons stated above, both the Special Civil Applications succeed. The impugned order dtd.11/7/2008 passed by the learned City Civil Judge, Ahmedabad in SCA/9693/2008 15/15 JUDGMENT Civil Misc.Application Nos.297 and 141 of 2008 is hereby quashed and set aside. Rule is made absolute accordingly in each of the petitions. There shall be no order as to costs. [M.R. SHAH, J.] rafik