SUBHASH KASHYAP Vs. BIKANER UNIVERSITY

JUDGEMENT

(1.) The plaintiff-appellant Subhash Kashyap has filed the present second appeal in this Court on 3.4.2012 aggrieved by the decision of the Additional Dist. Judge No. 2, Bikaner allowing the defendant - Bikaner University's appeal No. 19/2010 - Bikaner University and Ors. vs. Subhash Kashyap and Ors. and reversing the judgment and decree dtd. 19.8.2010 by the learned Additional Civil Judge (J.D.) No. 1, Bikaner in civil suit No. 61/2009 - Subhash Kashyap vs. Bikaner University and Ors. by which the learned trial Court decreed the suit of the plaintiff Subhash Kashyap for mandatory and permanent injunction inter alia holding that the plaintiff was entitled to be given 3 grace marks and was to be declared pass in L.L.B. 1st year examinations of the year 2007. The learned trial Court also noticed that during the pendency of trial itself, the plaintiff had passed 2nd and 3rd year of L.L.B. Examinations from Bikaner University and the relevant Ordinance of the university could not stand in the way of the plaintiff student being declared pass in L.L.B. 1st year examination. The learned trial Court however did not admit in evidence the said Ordinance (the relevant statute) as the envelop in which the same was produced by the defendant - University was marked "confidential". This was, with great respect to the learned trial Judge, was not correct, but it gave rise to first appeal filed by defendant - University. The University's appeal came to be allowed by the learned Additional Dist. Judge No. 2, Bikaner, deprecating the stand taken by the learned trial Court that the Ordinance even though produced in sealed cover marked "confidential" was merely a statute which ought to have been looked into by the learned trial Court and in the absence of the same, the decree in favour of the plaintiff could not be sustained and thus the first Appellate Court set aside the said decree. While setting aside the said decree, the learned appellate Court has given its own reasons that the plaintiff was not entitled to 3 grace marks and on a perusal of said Ordinance, which the Appellate Court looked into, at a maximum, the plaintiff could have been given 2 grace marks, but still could not be declared pass in L.L.B. 1st year examination.

(2.) The dispute arose because the plaintiff in the first instance in L.L.B. First year of 2007 secured 33 marks in the paper "Contract Law" and 28 marks in the paper "Law of Torts". Thus, he was held entitled to appear in Supplementary examinations for the said L.L.B. 1st year papers. So appearing, in supplementary examinations, the plaintiff also appears to have applied for revaluation of his marks in these two papers and on such revaluation, his revised marks in paper "Contract Law" were increased from 33 to 40, but in the paper "Law of Torts," they were reduced from 28 to 18 marks. In the supplementary examinations undertaken by the plaintiff, he secured 51 marks in the paper "Contract Law" and 33 marks in the paper "Law of Torts", but the minimum pass marks were 36 out of 100. Thus, the plaintiff could not be declared pass for L.L.B. 1st year examinations as in one paper, his marks were less than the minimum of 36 marks. The plaintiff in these circumstances approached this Court aggrieved by the judgment dtd. 5.1.2012 of the first appellate Court in the present second appeal.

(3.) Having heard the learned counsel for the parties, in the opinion of this Court, the following substantial question of law as to the interpretation of said Ordinance, does arise in the matter. Hence, following substantial question of law was framed and arguments were heard on the same.