ZAFARULLAH KHAN Vs. IVTH ADDITIONAL DISTRICT JUDGE FAIZABAD

JUDGEMENT

(1.) THE part of the order passed by the IV Additional District Judge, Faizabad, allowing amendment of the written statement in appeal filed by the opposite parties arising out of a suit filed by the petitioner, a teacher in Forbs Intermediate College, Faizabad, is subject matter of challenge in this writ petition. THE Additional District Judge in exercise of its revisional power rejected one amendment but allowed the other amendment prayed for by the defendants to the suit. THE defendants of the suit i. e. the opposite parties have not challenged that part of the order by filing of the writ petition and the plaintiff to the suit, the teacher, has filed this writ petition.

(2.) THE plaintiff-petitioner who was appointed as Assistant Teacher in Forbs Higher Secondary School (now Intermediate College) filed a suit challenging the order dated 25-4-75 by which his services were terminated. It was pleaded by the petitioner that the Society known as Forbs Higher Secondary School, Faizabad has its own bye-laws and scheme of administration duly approved by the Deputy Director of Education and the provisions of the U. P. Intermediate Education Act and rules, regulations and ordinances are fully applicable to the said institution. THE suit was contested by the defendants who admitted this position, but defended the termination order on the ground that the same was legal. THE suit of the plaintiff-petitioner was decreed and it was held that the termination order was void and decree for realization of salary was passed. THE decree was executed and the petitioner succeeded in getting the arrears of salary and joined the institution in which he is still continuing. This was done after the objections under section 47 filed by the opposite parties were dismissed and thereafter 1st appeal was filed by the opposite parties against the judgment and decree dated 13th May, 1980 which came up for hearing before the Additional District Judge. THE appeal was adjourned on certain dates and it was only on 7th April, 1982 the opposite parties moved an application for amendment of the written statement in appeal. It was prayed that few important pleas could not be taken in the written statement by mistake and they were necessary for proper adjudication of the case. THE main plea was that the defendants' college being a minority institution, the provisions of U. P. Intermediate Act would not govern the employment of the petitioner and as such his termination could not be held to be void. THE Additional District Judge rejected the other amendment prayed for, but so far as this amendment is concerned, it was allowed. By this amendment, it appears, the defendants wanted to claim benefit of Article 30 of the Constitution of India. THE said Article reads as follows ;-

(3.) IN Pandit Iswardas v. State of Madhya Pradesh, (1979) 4 SCC 163, in which case the plea of res judicata was sought to be taken at the appellate stage which was rejected by the High Court on the ground of absence of necessary material but was allowed by the Supreme Court, it was observed that there is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea, provided the appellate court observes the well known principles subject to which amendments of pleadings are usually granted. There should be a reasonable explanation for the delay in making the application seeking such amendments and, if made at the appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But there is no prohibition at the appellate stage merely because the necessary material is not already before the court.