SAYAM RANJAN BHOWMIK Vs. TRIPURA PUBLIC SERVICE COMMISSION

JUDGEMENT

(1.) THIS revision petition has been filed against the order dated 19 -12 -81 passed by the learned Subordinate Judge, West Tripura at Agartala in Misc. Appeal No. 89 of 1981 against the order of ad interim injunction passed by the learned Munsiff, Agartala in Misc. Case No. 464 of 1981 arising out of T. S. No. 375 of 1981 restraining the defendant Tripura Public Service Commission (for short the Commission). Agartala from holding the personality test and recommending the names of the selected candidates in connection with the examination held by the Commission under Advertisement No. 4 of 1981 for recruitment to the posts of T. C. S. Grade -II. The suit was brought for declaration of the aforesaid examination as void and illegal and for perpetual injunction. On the petition for temporary injunction the learned Munsiff passed the ad interim order of injunction restraining the Commission from holding the personality test. Against this order an appeal was preferred on behalf of the defendant Commission before the learned Subordinate Judge, West Tripura at Agartala. The appeal was preferred on 19 -12 -81 and on the same date an application of caveat was admitted on behalf of the plaintiff before the learned Subordinate Judge. On 19 -12 -81 the learned Subordinate Judge passed an order regarding certified copy of the impugned order of the trial Court. He found that no certified copy was filed along with memorandum of appeal. However, it was recorded in the order that the appellant undertook to submit the certified copy of the order dated 18 -12 -81 passed by the learned Munsiff "in no loss of time". An order for registering Misc. Appeal was passed. The learned appellate Court also found on record that there was an endorsement on the memorandum of appeal and the stay petition praying for stay of the order of ad interim injunction passed by the trial Court, to the effect that "the Advocate for the respondent could not be traced out in the Court compound and left for home at 3 -15 P.M." This part of the order relates to the appellant being required "to put in requisite for serving notice upon the respondents." The learned appellate Court admitted the appeal in view of the submission as above and called for the records. He further ordered for issuing the notice upon the respondent fixing 21 -12 -81 for service return and for hearing the stay matter. The learned appellate Court also felt necessity of a notice to be served upon the caveator. The learned Court, however, after hearing the submissions made on behalf of the appellant passed an an interim order staying operation of the impugned order dated 18 -12 -81 till 21 -12 -81 as a special case for the ends of justice".

(2.) THE learned counsel for the petitioner in this revision petition firstly argued that the appeal is not maintainable under Order 43, Rule 1(r), C.P.C. This provision of Order 43 provides that appeal lies from an order under Rules 1 and 2 etc. of Order 39, C.P.C. The learned counsel for the revision -petitioner pointed out that the order appealed against fails under Rule 3 of Order 39, C.P.C, for which there is no provision for appeal. The learned counsel for the Commission submitted that the order passed by the trial Court regarding temporary injunction was passed under Rules 1 and 2 of Order 39, C.P.C. and that being so the order is appealable. For shortening discussion on the point I would like to refer to the petition in this case wherein under para 1 the petitioner states that the plaintiff filed a petition for temporary injunction before the learned Munsiff under Order 39, Rules 1 and 2, C.P.C. So it is admitted by the petitioner that the order passed by the learned trial Court is appealable. My finding is also that the order is appealable. The learned counsel for the petitioner in this revision petition submitted that no certified copy of the impugned order has been filed along with the memorandum of appeal for which the appeal is not maintainable. In support he referred to the rulings - -(1) reported in, AIR 1929 Lah 170. Mohammad Hayat Haji Mohammad Sardar v. Commr., Income Tax, Punjab & N. W. F. P., AIR 1923 Mad 482, Sundaram Iyer v. Muthuramalinga;, AIR 1971 J&K 41, Badrinath v. Hari Bhagat: , Ram Nath v. Kanhya Lal and , Jagat Bhish v. Jawahar Lal. As earlier stated it appears that the learned appellate Court on 19 -12 -81 accepted the submission of the learned counsel for the appellant regarding time to file the certified copy. However, this is to be decided by the appellate Court. I leave the matter there. This point may be agitated there. It is found that an application of caveat was filed by this petitioner on 19 -12 -81 and the record shows that attempt was made to serve notice regarding the appeal on the caveator through his appointed counsel and that the learned counsel could not be traced out in the Court compound (he having left the Court just after 3 P.M.). So it is found that on this date no notice was served either on the caveator personally or on his appointed lawyer.

(3.) THE scope of Section 115, C.P.C. is very much limited. What Section 115 C. P. C. provides for is jurisdictional matter of the Court below. No interference can be made under this section even if there be an error of law generally the procedural aspect of the proceeding. If all the formalities have been complied with and there is no breach of any law the order cannot be a subject -matter or revision under Section 115, C. P. C. So our attention should in this case be focussed on the due formalities non -observance of which would prejudice the other side. As said before unless there is any breach of law or breach of procedural matter this Court will not go in for interference with the order. Also there is provision that the High Court shall not, under this section, vary or refer any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where - - (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. So we should proceed to decide the matter involved in this petition keeping in view the aforesaid principles of law.