w w w . L a w y e r S e r v i c e s . i n



Noorul Islam College of Engineering & Others v/s Gopikrishnan

    S.A.(MD) No. 1157 of 2009 & M.P.(MD) No. 1 of 2009

    Decided On, 29 March 2019

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE R. PONGIAPPAN

    For the Appellant: M. Ajmal Khan, Senior Counsel, M.P. Senthil, Advocate. For the Respondent: J. Thomas Rajadurai, T.S.R. Venkataramana, Advocates.



Judgment Text

(Prayer: Appeal filed under Section 100 of Civil Procedure Code, against the Judgment and Decree passed in A.S.No.49 of 2006, on the file of the District Court, Kanyakumari at Nagercoil, dated 14.10.2009, confirming the Judgment and Decree, passed in O.S.No.64 of 2001, on the file of the Subordinate Judge, Padmanabapuram, dated 01.08.2006.)

1. Aggrieved over the concurrent findings made in A.S.No.49 of 2006, on the file of the District Court, Kanyakumari at Nagercoil, dated 14.10.2009 and in O.S.No.64 of 2001, on the file of the Subordinate Court, Padmanabapuram, dated 01.08.2006, the appellants, who are defendants in the Suit, filed this Second Appeal and seeks the relief to set aside the Judgments and Decrees passed by the above Courts.

2. Before the trial Court, the plaintiff / respondent filed a suit against the defendants / appellants herein, seeking for the relief of recovery and realization of an amount of Rs.1,97,000/-, from the defendants with interest at the rate of 18% p.a. from the date of filing of the suit, till the date of realization. The learned Subordinate Judge, Padmanabapuram, by Judgment and Decree, made in O.S.No.64 of 2001, dated 01.08.2006, allowed the Suit with costs. Aggrieved over the same, the defendants / appellants, filed an Appeal in A.S.No.49 of 2006, before the learned District Judge, Kanyakumari at Nagercoil, in which, the learned District Judge, by Judgment and Decree, dated 14.10.2009, dismissed the appeal, confirming the findings arrived at by the learned trial Judge. Feeling aggrieved by the same, the defendants / appellants have filed the present Second Appeal.

3. For the sake of convenience, the parties are referred to as, as described before the trial Court.

4. The averments made in the plaint, in brief, are as follows:-

(i) The plaintiff is a candidate in Tamil Nadu Professional Course Entrance Examination, 1994. After passing the said examination, the plaintiff came to know that there was a vacancy in the 1st defendant College and approached the 4th defendant, through his father, to issue an application form, for admission to the First Year B.E. Degree Course. The filled application was presented to the Chairman on 01.09.1994 with all original certificates. The plaintiff was entitled to get admission under the payment quota, on the basis of the marks secured in the Entrance Test. He never applied admission to NRI quota.

(ii) The plaintiff was admitted to the First Year Engineering Course, by order, dated 07.09.1994, issued by the 3rd defendant, for which, he was paid Rs.32,500/-, towards tuition fee etc. At the time of admission, the plaintiff surrendered the Transfer Certificate and other necessary certificates. The father of the plaintiff was working as a Deputy Secretary, Law Department of Kerala Government. After the admission, while the plaintiff was regularly attending the College. On 21.11.1994, the 4th defendant demanded the plaintiff's father to pay a sum of Rs.65,000/- in cash or 2000 Dollars, as capitation fee. The plaintiff expressed his inability to pay the said amount. But, the 4th defendant insisted to pay the said amount on or before 25.11.1994.

(iii) The promise made by the father of the plaintiff that the said amount would be paid after getting the retirement benefits, is not accepted by the 4th defendant. The plaintiff was not allowed to continue his studies after 25.11.1994. The father of the plaintiff received a letter on 27.01.1995, from the 2nd defendant stating that the plaintiff was absenting continuously from the classes, since 25.11.1994. Further it was stated in the said letter that the plaintiff would not be able to secure the minimum 75% of attendance, for attending the examination to be held on April, 1995.

(iv) On receipt of the letter, the father of the plaintiff met the 2nd defendant and requested him to allow the plaintiff to continue his studies. But, the defendants refused the request made by the father of the plaintiff and insisted for the capitation fee. Since the father of the plaintiff wrote a letter to the 2nd defendant, expressing his protest against the letter dated 27.01.1995 and explained the circumstances under which the plaintiff was not allowed to attend the classes. Subsequently, a request was made to the defendants to return the original certificates and transfer certificate. So that the plaintiff can pursue his studies in some other college. Further, a sum of Rs.1,00,000/- was demanded by the plaintiff, by way of compensation, for the mental agony suffered due to the acts of the defendants. Along with plaintiff his father went to the defendants College on 10.02.1995 and made a request to admit the plaintiff in the class or to return the certificates, on 10.02.1995 itself. The defendants refused to return the certificates.

(v) It was found that the name of the plaintiff was not mentioned in the rolls of the college sent to the Authorities concerned. To cover up this fraudulent act, the defendants sent the plaintiff out of the college under the pretext of non-payment of capitation fee, in the middle of the academic year. The plaintiff again made several attempts to get the certificates, but all ended in vain. The plaintiff, through his father, made a complaint to the Superintendent of Police, Noyyattinkaru, on 15.02.1995, against the 4th defendant and also sent a complaint notice to the Director of Technical Education, Guindy, Madras on 03.03.1995. On 06.03.1995 itself, the Director of Technical Education, directed the 4th defendant to release the original certificates as well the Transfer Certificate to the plaintiff forthwith. But, the defendants were not returned the certificates.

(vi) So, without any alternative, the plaintiff filed a Writ Petition in W.P.No.8565 of 1995, before this Court and this Court, by an order dated 25.08.1995, directed the 2nd defendant to return the certificates without any delay. At last, on 05.09.1995, the defendants returned the certificates to the plaintiff. The certificates were issued only when the defendants found that they would be proceeded against in a contempt proceedings before the High Court. The plaintiff lost one year in the education carrier without achieving anything for no fault of him. For getting the certificates, the plaintiff had to travel Chennai and other places and incurred the loss of 50,000/- and Rs.25,000/-towards legal expenses to file a Writ Petition. The loss of one year of salary of the plaintiff at the rate of Rs.6,000/- per month, totalling to Rs.72,000/- per year. Accordingly, the total liability of the defendants comes to Rs.1,97,000/-. Hence, the suit for damages.

5. The averments made in the Written statement filed by the defendants, in brief, are as follows:-

(i) The 4th defendant is the Chairman of the College. The defendants 3 and 4 are one and the same person. On 02.08.1994, the uncle of the plaintiff Sreekumaran Nair of Madhavi Mandiram made an application to the Chairman and requested to issue an application for admission to the First Year B.E. Degree Course for his nephew, the plaintiff, under N.R.I Quota. As per his request, an application was issued and the plaintiff filled the application and presented it to the Chairman on 06.08.1994 signed by him and duly supported and signed by his father Gopinathan Nair. The plaintiff had given tick mark on the NRI Column in the application.

(ii) The Management of the College permitted to admit the plaintiff under NRI Quota on payment of 2000 Dollars, in the form of Demand Draft, in addition to the payments prescribed for payment seats. The father of the plaintiff has also made a request to the Chairman of the College, for adjustment of the payment of the required Demand Draft for 2000 Dollars in the later stage, as he was not in a position to pay the same at the time of admission. Generally, the Management used to admit the students on NRI quota, only on or after the payment of the required 2000 Dollars. As a special case, the plaintiff was admitted in First Year Engineering Degree Course.

(iii) The plaintiff was given time for payment. The plaintiff remitted at the time of admission only a sum of Rs.34,260/- towards tuition fees, Savings and Deposit and IEEE Membership fee and also Rs.941.30 towards costs for Books and Drawing Instruments. The plaintiff is not able to secure minimum 75% of attendance to sit for the examination in April 1995. Hence, the Principal of the College issued a letter, dated 24.01.1995, to the plaintiff and his father. But his father issued unnecessary reply letter dated 02.02.1995. On 13.02.1995, the father of the plaintiff came to the College and made a request to issue Transfer Certificate and original certificates. The Rules of the College is that the students had to apply for Transfer Certificate and he has to get back the Certificates in person. The plaintiff has not applied for the same.

(iv) On 13.02.1995 itself, the Principal requested the parent to give fresh application singed by the plaintiff together with another letter stating the inability to give NRI draft of 2000 U.S.Dollars. Since the plaintiff studied in the institution for more than the minimum required period, the tuition fee is not refunded. However, the plaintiff filed a Writ Petition in W.P.No.8565 of 1995 before this Court, in which, the college was stated before this Court that the College was ready to return the required certificates, if the plaintiff applied the same with reasons. This Court passed an order to return the certificates or before 06.09.1995.

(vi) On the basis of the said order, it was informed by the defendants, to the plaintiff, to get the original certificates. The plaintiff came to the College in person and submitted an application on 05.09.1995 to get back the original certificates along with Transfer Certificate. But the plaintiff was issued Suit Notice, dated 10.03.1997, without any reason. There was no fault on the part of the defendants. The NRI payment of 2000 Dollars is not yet paid to the defendants till this date. It is the right of the Management to collect the amount. There is a loss to the Management of the College, since the said seat was vacant till the end of the course period. In the reply suit notice, the Management claimed Rs.11,00,000/- towards damages and compensation. The plaintiff filed the suit only for harassing the defendants. The defendants not at all liable to pay the damages. Accordingly, he prayed for dismissal of this suit.

6. Based on the above pleadings, the learned trial Judge framed necessary issues and tried the suit.

7. Before the trial Court, one Gobinathan Nair, who is the father of the plaintiff was examined as P.W.1. The plaintiff examined two more witnesses as P.Ws.2 and 3. Further, he marked 18 documents as Exs.A1 to A18. On the side of the defendants, one Kumarn Thambi was examined as D.W.1 and 20 documents were marked on the side of the defendants as Exs.B1 to B20.

8. Having considered all the above, the learned trial Judge passed a Judgment, directing the defendants to pay a sum of Rs.1,97,000/- to the plaintiff, along with interest at the rate of 18% per annum. Aggrieved over the same, the appellants herein filed an appeal before the learned Principal District Judge, Nagercoil, for the relief to set aside the Judgment rendered by the learned Sub Judge, Padmanabhapuram. After elaborate enquiry, the learned Principal District Judge, dismissed the appeal and confirmed the Judgment and Decree passed by the learned Subordinate Judge, Padmanabhapuram. Against the said concurrent findings, the appellants filed the present Second Appeal.

9. In the said circumstances, while at the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:-

1. Whether the Courts below are right in law in granting a decree in favour of the Respondent merely on surmises and conjectures without any analysis of the oral and documentary evidence adduced?

2. Whether the findings of the Courts below are perverse in not considering the documentary evidence under Exs.B3, B4 and B11, which would suffice to negative the entire claims of the respondent?

3. Whether the Courts below are right in law in entertaining the suit without adverting to the earlier writ proceedings in W.P.No.8565 of 1995 under Ex.A12/B13 has been filed by the respondent making the very same allegations as such the present suit is barred by virtue of estoppel especially the respondent has not obtained any leaves from this Hon'ble Court to make the present claim?

10. On a thorough perusal of the judgments of the Trial Court and the First Appellate Court, the substantial questions of law arisen in this Second Appeal are recast as follows:-

1. Whether the Courts below are right in law in granting a decree in favour of the Respondent merely on surmises and conjectures without any analysis of the oral and documentary evidence adduced?

2. Whether the findings of the Courts below are perverse in not considering the documentary evidence under Exs.B3, B4 and B11, which would suffice to negative the entire claims of the respondent?

3. Have not the Courts below committed a serious error in law in decreeing the suit without adverting the crucial issue that the present suit in O.S.No.64 of 2001 itself is not maintainable, by virtue of the embargo provided under Order 2, Rule 2 of C.P.C., in view of the earlier proceedings in W.P.No.8565 of 1995, marked as Ex.A12/B13?

4. Whether the present suit in O.S.No.64 of 2001 is maintainable claiming damages without obtaining any leave from this Hon'ble Court in W.P.No.8565 of 1995, Ex.A12/B13, to file a fresh suit on the very same cause of action, especially, in the earlier writ proceedings the plaintiff restricted his claim for return of certificates alone?”

11. It is an admitted fact of both sides that the plaintiff was admitted as a student in First Year B.E. Degree Course in defendants College. Subsequently, for the reasons best known to either plaintiff or to the defendants, the plaintiff has not continued his studies and applied to the Management, for return of original certificates and Transfer Certificate, which have been produced before the defendants, by the plaintiff, at the time of admission. Further, it was admitted on either side that due to controversy arose between the plaintiff and the defendants, the plaintiff filed a Writ Petition in W.P.No.8565 of 1995, before this Court and this Court, vide order dated 25.08.1995, directed the 2nd defendant to return the certificates, without any delay. Pursuant to the direction of this Court, on 05.09.1995, the defendants returned the certificates and Transfer Certificate to the plaintiff. Only thereafter, the suit pertaining to this appeal have been filed by the plaintiff.

12. In the said circumstances, the learned counsel appearing for the defendants would contend that, since the Writ Petition filed by the plaintiff is for the same cause of action, now the suit has been hit under the provision of Order 2, Rule 2 of CPC. On that score itself, the appeal deserves to be allowed and prayed to allow this appeal. In support of his contentions, the learned counsel relied on the Judgments of the Hon'ble Apex Court in Coffee Board Vs. Ramesh Exports Pvt. Ltd., reported in (2014 (3) CTC 728) and in Union of India, Pondicherry & another Vs. Krishnasamy Naidu and the Judgment of this Court in Narasimman (deceased) & others Vs. R.Santhakumari reported in (2015-3-L.W.671).

13. On whole reading of the Judgments relied on by the appellants which emerges that no one ought to be vexed twice for the same cause. A plain reading of Order 2, Rule 2 CPC., which emerges that if different reliefs and claims arise out of the same cause of action, then, the plaintiff must place all his claims before the Court in one suit and cannot omit one of the reliefs or claims, except without leave of the Court, specifically it reiterates Order 2, Rule 2 CPC., bars a plaintiff from omitting one part of claim and raising the same in a subsequent suit.

14. Now, applying the said principles with the case in our hand, it is the case of the defendant that before instituting the Suit, he filed a Writ Petition for the same cause of action. Of course, if both the proceedings are initiated based on the same cause of action, without getting liberty from the competent court, the suit filed by the plaintiff is not at all be maintainable. However, in the said occasion, it is necessary to see Section 141 of CPC, which reads as follows:-

“ S.141. The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

[Explanation. – In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.]

[A] Inserted by the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976), S.47 [1-21977].

OBJECTS AND REASONS

"Clause 50.- The applicability of Section 141 to various types of proceedings has been the subject of controversy, particularly whether the section applies where an application to set aside or orders of dismissal for default are themselves dismissed for default or decided ex parte. The High Court of Bombay held that in such cases Section 141 applies. The Supreme Court, however, came to a contrary conclusion. In the circumstances, Section 141 is being amended to clarify that the section applies to proceedings under Order IX.

The question whether an application under Art.226 of the Constitution is a "proceeding in any Court of Civil Jurisdiction" within the meaning of Section 141 has been the subject matter of a controversy. While the Andhra High Court holds that Section 141 applies to such proceedings, the Allahabad, Calcutta, Madras and Punjab High Courts have held that Section 141 does not apply to such proceedings. In the circumstances, it is being clarified that Section 141 does not apply to proceedings under Article 226 of the Constitution" S.O.R. (Gaz. Of Ind., 8-4-74, Pt. II, S.2, Ext., p.310)."

Therefore, it is apparent that under Section 141 of C.P.C., the proceedings initiated under Article 226 of the Constitution not includes the proceedings initiated under Order 9 of C.P.C.

15. Furthermore, the plaintiff filed a Writ Petition seeking for a direction, directing the 2nd defendant to return the original certificates, which was handed over by the petitioner / plaintiff, to the respondents / defendants, at the time of his admission in First Year B.E.Degree Course and Transfer certificate. On the other hand, the suit has been filed by the plaintiff for claiming damages from the defendants for the mental agony suffered in not permitting him to continue his studies by the defendants. Thereby, the cause of action for the two proceedings are entirely different.

16. It is the case of the plaintiff before the trial Court that the plaintiff was admitted under the category of payment quota. On the other hand, it is the case of the defendants that the plaintiff was admitted under NRI quota. In support of the contention raised by the defendants, photostat copy of the application given by the plaintiff was marked as Ex.B4. Further, the letter dated 02.08.1994, given by the uncle of the plaintiff Sreekumarn Nair to the Chairman of the College, with a request to give an application form, for his nephew, the plaintiff, to the First Year B.E. Degree Course and the said letter was marked as Ex.B3. Further, the letter sent by the Director of Technical Education, dated 21.02.1995 was marked as Ex.B11. The said documents will clearly prove before getting admission in the defendants College, the plaintiff gave a requisition letter to give an application for joining as a First Year B.E. Degree Course, under NRI quota. Further, as per the contents of the document Ex.B11, his admission under NRI quota was approved by the Director of Technical Education.

17. Now, it is to be noted, during the time of giving evidence as P.W.1, P.W.1 has stated that the plaintiff was admitted only under payment quota. So, he gave evidence against the contents of the documents found in Exs.B3, B4 and B11. So, the said evidence cannot be relied as worth evidence, under Section 92 of the Indian Evidence Act. However, technically on seeing this aspect, before the trial Court, the defendants had not produced the original letter submitted on behalf of the plaintiff, the original application submitted by the plaintiff and the letter sent by the Director of Technical Education [Ex.B11]. On go through Ex.B11, which is the letter sent by the Director of Technical Education, the first page of the letter alone is the original and other is nothing but a copy of the letter sent by the Director of Technical Education. The defendants being the custodian of above original documents, during the time of trial, for the reasons best known to them, had not produced the original letters Exs.B3 & B4 submitted by one Sreekumaran Nair.

18. In this regard D.W.1 gave evidence that those documents are handed over to the Advocate, who is in Chennai. In fact, after filing the suit, the trial was initiated after the lapse of considerable period. If it is true, it is very easy to get those original documents from the Advocate and submitted the same before the trial Court.

19. On seeing the Judgment rendered by the First Appellate Court in paragraph Nos.11, it was clearly observed that the evidence given by D.W.1 clearly proved that without following the formalities for admitting the students under NRI quota, the defendants taking a stand that the plaintiff was admitted under NRI quota. An yet another thing, which is tobe noted in this case is, at the time of admitting the plaintiff as a student on 07.09.1994 in defendants college, the defendants received Indian money of Rs.32,500/- towards the fee and not demanded the plaintiff to pay the fee as Dollars. It is the case of the defendants that for admitting the students under NRI quota, the deposit of 2000 dollars is necessary. But, the evidence given by D.W.1 and P.W.1 will clearly prove only after admitting the plaintiff as a student, through the letter (Ex.A7) dated 09.03.1995, addressed to the Director of Technical Education, stated that the plaintiff was not paid 2000 Dollars towards admission fee, under NRI quota.

20. Before sending the said letter dated 09.03.1995, to the Director of Technical Education, on 07.02.1995, the Principal of the College sent a letter to the father of the plaintiff informing that the plaintiff has not attended the classes from 25.11.1994. But, in the said letter, the Principal has not stated anything about non-payment of 2000 Dollars of admission fee. It shows and create a doubt whether the plaintiff was admitted in the defendants College under NRI quota or not. Withholding of original certificates will clearly prove that the defendants approache

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d this Court only after suppressing the real fact. 21. In the said circumstances, on 06.03.1995, the Director of Technical Education sent a letter to the 4th defendant with a request to release the original certificates and transfer certificate in respect of the plaintiff. The said letter was marked as Ex.A6, on the plaintiff's side. It shows on 06.03.1995, the original certificates pertaining to the plaintiff was in the hands of the defendants. Even after receiving the letter from the Director of School Education, the defendants are not handed over the original certificates to the plaintiff. In the meantime, pursuant to the direction issued by this Court in the Writ Petition filed by the plaintiff, only on 05.09.1995, the defendants released the original certificates by sending the telegram. A copy of the telegram was marked as Ex.A13. 22. Therefore, on cull out the entire circumstances, it is true, the delay in handing over the certificates to the plaintiff, by the defendants, will cause mental agony. Further, for filing writ petition, the plaintiff had spent a reasonable amount. Since the plaintiff is the resident of Kerala State, for reaching the Madras High Court, the plaintiff may spent a considerable amount. More than that, due to the attitude committed by the defendants, the plaintiff was in their resident without continuing his education for the period in 1994-95. The mark sheet and the marks obtained by the plaintiff in the entrance examination, which was marked as Ex.A18, will prove that the plaintiff is not ordinary students. The mark obtained by him will establish that he is the average students and he is eligible in getting admission in maximum colleges. 23. As already stated, the first appellate Court has decided the issue in respect to the admission in a perspective manner. The well considered Judgment rendered by the First Appellate Court cannot be shaken at any point of time. The grounds raised by the appellants is not sufficient to hold that the First Appellate Court has committed error. The Substantial Questions of Law are answered accordingly, in favour of the plaintiff. 24. In fine, the Second Appeal is dismissed, confirming the Judgment and Decree passed in A.S.No.49 of 2006, on the file of the District Court, Kanyakumari at Nagercoil, dated 14.10.2009, affirming the Judgment and Decree, passed in O.S.No.64 of 2001, on the file of the Subordinate Judge, Padmanabapuram, dated 01.08.2006. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed.
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