RSA 80/2011 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER This appeal under Section 100 of the Code of Civil Procedure [’the Code’ for sho rt] is preferred by the plaintiff-appellant herein against the judgment and decr ee dated 20.12.2008 passed by the learned Civil Judge, Nalbari in Title Appeal N o.4 of 2008 allowing the appeal thereby setting aside the judgment and decree da ted 29.03.2008 passed by the learned Civil Judge No. 2, Nalbari in Title Suit No. 27 of 2000 wherein the declaration and permanent injunction as sought for by the plaintiff-appellant was allowed. 2. Heard Mr. K Sharma, learned counsel appearing for the appellant. Also he ard Mr. S Sharma, learned counsel for respondent No.3 and Mr. TK Bhuyan, learned Standing Counsel, Education Deptt. for respondent Nos.4 and 5. 3. The appeal came up for hearing under Order 41 Rule 11 of the Code where in the substantial questions of law has been formulated by the counsel of the ap pellant which are quoted hereunder: - (i) Whether the learned First Appellate Court is correct in deciding the iss ue No. 4 in favour of the respondent No. 3/defendant No.13, Bhabesh Deka, holdin g him senior to the appellant without the formal appointment letter issued by th e authority in his (i.e. Bhabesh Deka) name thereby reversing the findings arriv ed at by the learned trial court in favour of the Appellant ignoring Exhibit 1, the appointment letter, issued in the name of the appellant by the authority? (ii) Whether the first Appellate Court is correct in reversing the findings a rrived at by the learned trial court in issue No. 8 decided in favour of the app ellant-plaintiff? (iii) Whether the learned First Appellate Court is correct in setting aside the findings recorded by the learned trial court without discussing and appreci ating the evidence both oral and documentary available on the records and witho ut any perversity in the judgment passed by the learned trial court? 4. To answer the substantial question of law as formulated, the Court is re quired to summarize the facts of the contesting parties. The same is thus brief ly stated as follows:- The appellant claims to be an Office Assistant of Uttar Kampith Mahavidy alaya (Junior College) [in short ’UKM College’] who was appointed on 10.07.1995. The Governing Body and the Principal and Secretary of UKM College had sent the list of staff pattern of the teaching and non-teaching staff to the Government o f Assam in response to the Government letter dated 06.11.1996 and in the said li st the name of the appellant was shown at Serial No. 1, which, however, was subs equently changed and the name of the defendant No. 3 was shown at Serial No. 1 i n the payment register and daily attendance register though he was unauthorizedl y absent from duty for which he was asked to show cause on 27.04.1995 and ther efore the acts of the defendants to place the name of the defendant No. 13 at Serial No. 1 in the payment register and daily attendance register has caused gr eat prejudice to the plaintiff in respect of his service conditions, his name be ing excluded from the staff pattern of the UKM College, whereas the defendant No . 14 has undertaken process to approve the subsequent changed list and if the defendant No. 14 is not restrained, he will suffer irreparable loss and injury requiring to injunct the defendant No. 14 from approving the list whereby the staff pattern of non- teaching staff of UKM College has been changed from its e arlier list and hence filed the suit seeking the following reliefs: - a) Declaring that the report of the defendant No. 3 to the President Govern ing Body/Managing Committee UKM Junior Jagara submitted on 02.12.1998 affecting the service of the plaintiff is illegal, inoperative and not binding on the plai ntiff; b) A decree declaring that the plaintiff is entitled to hold the post of UD A in the event of Govt. of Assam taking over the Junior College; c) That any report after the staff pattern omitting the name of the plainti ff with a view to dis-stabilise the service of the plaintiff cannot take effect; d) Mandatory decree requiring the defendant No. 1 to furnish staff pattern to include the name of the plaintiff as in No. 1 position of the non-teaching st aff cashier/accountant; e) Permanent as well as temporary injunction; f) Cost of the suit; g) Any other relief or reliefs to which the plaintiff is otherwise entitled may be granted. 5. In the written statement the defendant No. 3 who also represented the de fendant No. 1 and the defendant No. 13 contested the suit jointly contending int er alia that the defendant No. 13 was the founder Office Assistant of the UKM Co llege who was appointed and working since 1983 but the defendant No. 13 was put under suspension, which, however, was withdrawn considering the dedicated long service and suggestion of the general meeting of the college held on 10.09.1995 and the suspension order of the defendant No. 13 has been withdrawn without any break in his service and that the plaintiff is junior to the defendant No.13 in service who joined service only on 10.07.1995 and therefore no injustice/injuries has been caused to the plaintiff and as such the re is no cause of action and prayed for dismissal of the suit. The defendants ho wever, took other defences as available under Order 8 of the Code. 6. On the pleadings of the parties, the following issues were framed:- 1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in its present form and barred under th e provisions of Assam Administrative Tribunal Act? 3. Whether the suit is bad under Section 80 of the CPC ? 4. Whether the plaintiff has got his required qualification and seniority t o be included his name in gradation list as senior to defendant No. 13? 5. Whether staff patterns list approved by Director of Secondary Education is illegal? 6. Whether the plaintiff is entitled to the relief as prayed for? 7. To what other relief/reliefs, the parties are entitled to? 8. Whether the defendant No. 13 got suspended for his unauthorised absence and can claim seniority of the plaintiff? 7. During the trial the plaintiff examined three witnesses, whereas the def endant examined four (4) witnesses, besides exhibiting documents in their favour . 8. It is however noticed that the case of the plaintiff was earlier dismiss ed by the learned Civil Judge (Jr. Div.) No. 2 on 11.07.2005 whereupon an appeal was taken on the file of the learned Civil Judge, (Sr. Div.) Nalbari. The learn ed appellate court remanded the matter to the learned trial Court after setting aside the issue Nos. 3, 4, 6 and 7 directing to decide the issues afresh in acco rdance with law. 9. On remand the learned trial Court has held that notice under Section 80 of the Code is not required since no relief is claimed against the newly implead ed defendant Nos. 14, 15 and 16, more so, when the defendant Nos. 14, 15 and 16 did not appear and contested the suit. In regard to issue No. 4, the learned trial court after going through the evidence on record and the averments made in the pleadings of the parties i ncluding Exts 1, A, B, C and J has held that from those exhibits it could not be ascertained as to whether the defendant No. 13 was appointed in accordance wi th statutory rules prior to the appointment of the plaintiff and came to a findi ng that the defendant No.13 was not appointed as Office Assistant by the Govern ing Body under the statutory Rules whereas the plaintiff has got his required qu alification and seniority to be included his name in the gradation list as seni or to the defendant No. 13 and accordingly decided the issue No. 4 in the affir mative and in favour of the plaintiff. While deciding the issue No. 8 the learned trial court has held that t he defendant No. 13 was suspended on 06.05.1995 and the suspension order was sub sequently withdrawn on 10.09.1995 (vide Ext-A) and therefore cannot claim senior ity over the plaintiff and accordingly decided the issue No.8 in the negative a nd in favour of the plaintiff. Relating to issues Nos. 6 and 7, the learned trial court has held that s ince there is no appointment letter in favor of the defendant No. 13, which he h as miserably failed to prove, whereas the plaintiff has proved his appointment l etter, therefore the plaintiff is entitled to the relief Nos. (a),(b) and (c) of the plaint thereby decided the issue in the affirmative and in favour of the pl aintiff. 10. Being dissatisfied with the judgment and decree of the learned trial Cou rt on remand, the defendant No. 13 took up the matter on the file of the learned Civil Judge being Title Appeal No. 4 of 2008. The learned appellate court after perusal of the evidence on record and the pleadings of the contesting parties a llowed the appeal referring Exhibits, including paragraph 8 of the plaint whereb y decided the issue Nos. 4 and 8 in favour of the defendant No. 13 holding that the staff pattern list as approved by the Director of Secondary Education, Guwa hati was not illegal and accordingly decided issue Nos. 6 and 7 in favour of the defendant No.13/appellant and hence the Regular Second Appeal. 11. In support of the substantial questions of law as formulated, Mr. K Shar ma, learned counsel appearing for the appellant would contend that the learned A ppellate Court has committed an illegality in holding that the defendant No.13 is senior to the plaintiff in absence of appointment letter not being issued by the competent authority in favour of the defendant No.13 and therefore the is sue No. 4 decided in favour of the defendant No.13 requires interference under Section 100 of the Code. 12. Mr. Sharma, would further contend that the seniority claimed by the defe ndant No.13 in issue No. 8 over the plaintiff has been correctly decided by the learned trial Court. But, without appreciating the evidence both oral and docume ntary available on record and inspite of the fact that there is no perversity in the judgment passed by the leaned trial Court, the learned appellate court reve rsed the findings arrived at by the learned trial Court and hence requires inter ference in exercise of power under section 100 of the code. The learned counsel has referred the following decisions in support of t he case: - 1. 2005 (Supp) GLT 481 (Abdul Karim v. Ashok Das & Ors.). 2. 2004 (Supp) GLT 347 (Nitya Hari Mazumdar & Ors. v. State of Trip ura). 13. Countering the attack, Mr. Sharma, learned counsel appearing for the def endant No. 13 (respondent No.3) would contend that the findings arrived at by th e learned lower Appellate Court do not require to be interfered with, more parti cularly, the decision arrived at while deciding the issue Nos. 4 and 8. The lear ned counsel in support of issue Nos. 4 and 8 would further contend that material Exts. vide Exts. A, B and C alongwith the pleadings of the parties would discl ose that the defendant No.13 had joined the college much earlier than the plaint iff, however, the defendant No. 13 was put under suspension on 06.05.1995, where as the plaintiff joined the college on 10.07.1995 which would go to show that th e defendant No.13 is senior to him and an employee putting under suspension woul d not lose his seniority even if the suspension order is revoked after joining the college by the plaintiff as held by the learned trial court while decidin g the issue No. 8 and as such no interference is called for when there is no perversity while rendering the findings arrived at by the First Appellate Court. The following decisions have been referred to by the learned counsel app earing for the defendant No.13/respondent No. 3, in support of his submission:-. 1. (1984) 2 GLR 101 (Mrs. Maya Dutta v. State of Assam & Ors.) 2. (2010) 2 SCC 239 (K.K. Kannan (Dead) by LRs v. Koolivathukkal Karikkan M andi & Ors.) 3. (2010) 11 SCC 483 (Bharatha Matha & Annr. v. R. Vijaya Renganathan & Ors .) 4. (2010) 12 SCC 740 (Dinesh Kumar v. Yusuf Ali). 14. Considered the arguments advanced by the contesting parties. Perused the evidence on record including the pleading of the parties. Admittedly the appell ant filed the suit seeking the reliefs mainly relief Nos. (a), (b), (c) as indic ated above. Initially the suit was dismissed and on appeal the case was remanded back to the learned trial court. On remand the learned trial court decreed the suit only on the ground that no appointment letter has been proved by the defend ant thereby the reliefs as sought for has been decreed. 15. On appeal by the defendant before the learned Appellate Court, the learn ed appellate court allowed the appeal on issue Nos.4 and 8. It is also noticed t hat earlier, the learned trial Court dismissed the suit of the plaintiff relying on Exts. B, C and J. In Ext. J, the defendant No. 13 has been shown as LDA and joined on 22.11.1983, the same, however, the learned appellate court could not f ound in the lists of Exhibits though on remand, the trial court has scrutinized Ext. J and held that it could not be ascertained as to whether the defendant N o. 13 was appointed in accordance with statutory rules prior to the appointmen t of the plaintiff but did not decide whether the defendant No.13 joined on 22.1 1.1983 and the plaintiff has joined on 10.07.1995 and answered the issues on the affirmative thereby set aside the judgment rendered by the learned trial court. 16. In the above background, the Court now is required to answer as to wheth er the findings arrived at by the learned appellate court is illegal, based on n o evidence, both oral and documentary. A bare reading of paragraph 8 and 12 of t he plaint on his own admission of the plaintiff would disclose that the defendan t No. 3 who claims to be an employee of the college was absent for a long period from the college for which he was asked to show cause for absence from duty on 27.04.1995 and later on put under suspension on 06.05.1995. The suspension was, however, withdrawn on 10.09.1995 without any break and hence the defendant No. 1 3 is senior to the plaintiff who has joined the college on 10.07.1995 and the re vocation of the suspension order has been exhibited as Ext- A dated 10.09.1995 r eferring the suspension letter dated 06.05.1995. Therefore, Exts. A, B, C, and D has proved that the defendant No. 13 has joined the college much earlier than the plaintiff. In paragraph 12 of the plaint the plaintiff has admitted that the name of the defendant No. 13 was not sent in the staff pattern to the authoriti es in the earlier report due to his suspension, even if the Court accepts that t he defendant No. 13 was appointed not in accordance with statutory Rules. Theref ore, the case of the appellant has been demolished by himself and hence there is no perversity in deciding the issue Nos. 4 and 8 by the learned Appellant Court , requiring any interference by this Court. 17. In Abdul Karim (supra), the decision referred to by the learned counsel for the appellant, the Court while dealing with the substantial question of law has referred the decision of the Apex Court rendered in (Santosh Hazari v. Puru shottam Tiwari) reported in (2001) 3 SCC 179, wherein at paragraph 12 and 14, th e Hon’ble Apex Court has held as thus,:- 12. The phrase ’substantial question of law’, as occurring in the amended Se ction 100 is not defined in the Code. The word substantial, as qualifying quest ion of law means of having substance, essential, real, of sound worth, importan t or considerable. It is to be understood as something in contradistinction with -technical, of no substance or consequence, or academic merely. However, it is c lear that the legislature has chosen not to qualify the scope of substantial qu estion of law by suffixing the words of general importance as has been done i n many other provisions such as section 109 of the Code or Article 133 (1) (a) o f the Constitution. The substantial question of law on which a second appeal sha ll be heard need not necessarily be a substantial question of law of general imp ortance. In Guran Ditta Vs. T Ram Ditta, the phrase substantial question of law as it was employed in the last clause of the then existing Section 110, CPC (s ince omitted by the Amendment Act, 1973) came up for consideration and their Lor dships held that it did not mean a substantial question of general importance bu t a substantial question of law which was involved in the case as between the pa rties. In Sir Chunilal Vs. Mehta and Sons Ltd. Vs. Century Spg and Mfg Co Ltd., the Constitution Bench expressed agreement with the following view taken by a Fu ll Bench of the Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju: w hen a question of law is fairly arguable, where there I room for difference of o pinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a subst antial question of law. On the other hand, if the question was practically cover ed by the decision of the highest Court of if the general principles to be appli ed in determining the question are well settled and the only question was of app lying those principles to the particular facts of the case it would not be subst antial question of law and laid down the following test as proper test, for determining whether a ques tion of law raised in the case is substantial: the proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importanc e or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the quest ion is settled by the highest Court or the general principles to be applied in d etermining the question are well settled and there is a mere question of applyin g those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 14. A point of law which admits of no two opinions may be a proposition of law b ut cannot be a substantial question of law. To be substantial a question of la w must be debatable, not previously settled by law of the land or a binding prec edent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable fin dings of fact arrived at by court of facts and it must be necessary to decide th at question of law for a just and proper decision of the case. An entirely new p oint raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a subst antial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable oblig ation to do justice at all stages and impelling necessity of avoiding prolongati on in the life of any lis. The Court while deciding the case of Abdul Karim (supra) has held that t he plaintiff Nos. 1 and 2 filed the suit for declaration of their joint title, r ights and interest, joint recovery, possession and confirmation of possession ov er the suit land. But the plaintiff No. 2 filed a petition seeking to withdraw f rom the suit on 17.03.1990 and the said petition was directed to be put up at th e time of judgment. No objection was either invited from the plaintiff No. 1 and /or the defendants. The suit was decreed and on appeal it was affirmed culminati ng in preferring the Regular Second Appeal. The Court while delivering the judgm ent in Abdul Karim (supra) at para 14 has held as thus :- (14) Bearing in mind the rival submissions made before me on behalf of the parties and as to what a substantial question of law means, when I consider this appeal, what attracts my attention is that when the petition seeking to wit hdraw from the suit was filed by plaintiff No. 2 as far back as on 17.03.1990, t he petition was directed to be put up at the time of judgment. No objection on t his petition was either invited from the plaintiff No. 1 and/or the defendants. Even at the time of hearing of the arguments, as the judgment of the learned tri al Court shows, the learned trial Judge merely asked the learned counsel for the plaintiff No. 1 if the said petition should disposed of before the final judgme nt was delivered. As, to the query so made, the learned counsel for the plaintif f No. 1 submitted that the claim of the plaintiff No. 1 would not depend upon th e disposal of the said petition, the learned trial Judge disposed of the said pe tition along with the judgment. The question is not as to whether the plaintiff No. 1 had no objection to the plaintiff No. 2’s withdrawal from the suit, the qu estion is as to whether the leave to withdraw from the suit could have been gran ted, while delivering the judgment and thereby deny to the plaintiff No. 1 the c onsequential opportunity of allowing necessary amendments to be made in the plai nt, for, the earlier suit was instituted by two plaintiffs seeking declaration o f their joint title, rights and interest, joint recovery of possession and confi rmation of possession over the suit land and that with the withdrawal of one of the plaintiffs from the suit, the whole nature of the claim of the plaintiff No. 2 had changed from join rights, title and interest to exclusive rights, title a nd interest. But the case referred is not applicable, in the case in hand, because th e findings arrived at by the learned appellate court did not suffer from pervers ity requiring interference under section 100 of the Code. 18. In Nitya Hari Mazumdar (supra), the decision referred to by the learned counsel for the appellant, this Court has held that the power under Section 100 of the Code can be exercised only when there is substantial question of law and not otherwise. However,