MUKUNDRAI HARILAL PARIKH Vs. SHIVABHAI CHATURBHAI PATEL

JUDGEMENT

(1.) The present appeal has been admitted for hearing the parties on the following substantial questions of law:

(2.) The short facts necessary for disposal of the present appeal are that the present appellant, Mukundrai Harilal Parikh was working as a Tax Superintendent in the Municipality. In view of serious complaints made against him, a charge-sheet was issued, but, instead of giving reply to the charge-sheet, the said Mukundrai Harilal Parikh (present appellant original defendant No.2) submitted his resignation. The resignation was ultimately accepted and the present appellant was removed from the services. Thereafter, the plaintiff - Shivabhai Chaturbhai Patel (present respondent No.1), who was working as a Tax Clerk, was promoted to the post of Tax Superintendent. It appears from the records that the present appellant - Mukundrai made certain applications to the Municipality to permit him to withdraw the resignation. The President of the Municipality asked for the legal opinion and also required the Chief Municipal Officer to submit his report. The Chief Municipal Officer, however, submitted that in view of unconditional acceptance of the resignation, the present appellant could not be allowed to withdraw the resignation. However, the present appellant continued persuading the authority. In view of the continuous and constant persuasion by the present appellant, the Municipality issued an order of appointment in favour of the present appellant to occupy the post of Tax Superintendent. As a result of the said appointment, the present plaintiff was to suffer a demotion, therefore, he filed a suit before the learned Civil Judge (S.D.), Amreli and prayed for an injunction and declaration. Ad interim order was granted in his favour, but, ultimately, the Court held that the suit filed by the present plaintiff was not maintainable in view of non-issuance of the statutory notice. The present plaintiff was allowed to withdraw his earlier suit with liberty to file a fresh suit after complying with the legal requirements.

(3.) Shri Shalin Mehta, learned Counsel for the appellant-defendant, vehemently contended that between the parties, the decision in Civil Suit No.157 of 1979 (wherein the appellant was the plaintiff) would operate as res judicata and so long as the said judgement stands, no other Court could grant any relief in favour of the present plaintiff. He also submitted that the learned first Appellate Court was unnecessarily influenced by the fact that the present appellant was seeking permission to withdraw his earlier resignation. His submission is that once the fact was proved before the learned Appellate Court that the plaintiff was not reinstated, nor was allowed to withdraw the resignation, but, present was a case of fresh appointment, then, the learned Appellate Court should not have expressed its opinion against the Municipality or the present appellant. It is also submitted by him that if the judgement and decree under challenge are allowed to stand, then, the same would create an impossible situation because on one side in execution of the decree passed in Civil Suit No.157 of 1979, the plaintiff would be entitled to occupy the post while on the other hand, in view of the appellate judgement (impugned in this proceeding) the present plaintiff/respondent No.1 would be authorised to occupy the post. His submission is that in a case like the present where the judgement delivered in favour of the present appellant has attained finality, the suit of the present plaintiff could not be decreed by the learned Appellate Court.