DEITY SHREE VENKAT RAMANA TEMPLE CAR STREET, MANGALORE (DK) v. SRI U.NITHYANANDA NAYAK

ORDER Revision is directed against the order rejecting the application flied under Order VII Rule 11-D of CPC.

2. Heard. PetItion is admitted and taken up for final disposal with consent. From the case papers made available it

3. noticed the respondent—P.Ravindra Pal filed a suit in OS No. 825/2010 seeking to declare that the letter dated 25-08- 2010 received by him on 26-08-2010 requiring him to go on 11 3 leave till 30-11-2010 was untenable, and against natural justice and for consequentIal mandatory illegal, unenforceable Injunction.

4. The petitioners who are defendants in the suit filed an application under Order VII Rule 11-D of CPC numbered as IA No.3 seeking dismissal of the suit on the ground that there was no cause of action against them and thus the suit was liable to be dismissed on that ground. They also filed an applicatIon and also resisted for grant of an order of ad-Interim injunctIon against his termination. Both applIcatIons were clubbed and the trIal Court has the same by the impugned order dated disposed of

08.12.2010 which is questioned in this appeal.

5. The first ground of challenge Is defendants had addressed only a letter to the plaintiff directing him to proceed on leave whIch is not a letter of termInatIng the service or regarding any adverse remarks against him. The second ground Is such an act on the part of the defendants cannot be brought Into question as the its management plaintiff which is a religious and charitable Institution. No prejudice is an employee working under 4 Is caused to the complainant by directing him to go on leave as his service conditions are safe. On this ground, submitted that the suit flied Is without cause of action and complaint was liable to be rejected under Rule 11 of Order VII of the CPC.

6. The learned counsel the respondent has supported the Impugned order of the trial Court declIning to reject the complaint.

8. Perused records. The genesis of this case is action by the plaintiff/ respondent with regard to a letter addressed by the defendants to hIm dated 24.08.2010. It is necessary to extract its contents which reads thus: several “From the reasons the council of trustees has decided to Issue this notice to you granting you the “Leave of Absence” with immedIate effect till reasonable 2010 3O” November opportunity for you to mend your ways suitably and to be prepared to discharge your duties of office. Your are hereby advised not to Interfere in the working of the office during Is the period of without prejudice maintain discipline Temple.” This to all our actions leave of absence. office a 5

9. From the contents of the letter, is clear that plaintiff is entertaining an apprehension in the mind that though the defendants have asked him to go on leave, there is threat of disciplinary action against him without basis. Such an apprehension In the mind of the plaIntiff cannot be described unfounded simple reason defendants have, apart from directing him to go on leave, they also held threat of disciplinary action. The learned counsel the plaintiff/respondent brought out subsequent to filing of the suit, the defendants have terminated his service. On this basis, he submitted that intention of the defendants through a letter Impugned is obvious. They wanted to create a ground for his termination and Issued the Impugned letter solely with a view to create ground for terminating his service. I am inclined to accept the contention of the plaintiff/respondent the letter dated 24.08.2010 discloses the mind of the defendants that they were dissatisfied with his services and In the said letter, they have asked him to proceed on leave. Though they have not disclosed in the letter alleged act of malfeasance or misfeasance but they have indicated threat of disciplinary action. Therefore, the contention of the 6 plaintiff that he challenged the said letter because it would become the basis for disciplinary action is sustainable. The contention of the defendants that by the Impugned letter, they only asked him to go on leave and therefore, there Is no cause of action is unacceptable.

10. The defendants have admitted that subsequent to filing of the suIt, they have terminated his service. In this view, impugned letter appears to be the prelude for generating cause of action against the plaintiff to terminate his services. Therefore, It cannot be said that plaintiff has filed a suit without any cause of action.

11. At this juncture, the learned counsel for the petitioners/defendants drew my attention to the decision of the Apex Court in the case of SHIPPING CORPORATION OF INDIA LIMITED vs MACHADO BROTHERS reported in AIR 2004 Sc 2093. In the said decision, the Apex court took a view that if a subsequent suit is filed seeking relief of substantial nature, then, if earlier suit is flied relating to some relief, the first suit becomes infructuous and will be eclIpsed by the cause of action In the second suit. The proposition of law in the decision is not applicable to the 7 facts in this case because the defendants have terminated service of the plaintiff/respondent undoubtedly based on the impugned letter. Therefore, legality of the first action has to be considered as it is has been made a basis for terminating services subsequently. In this view, I am satisfied the defendants have made out no case for rejection of the plaint. However, the learned trial Judge shall make the subsequent events and while framing the issues, to decide whether plaintiff’s second suit is a comprehensive relief which clubs the relief sought in the first suit and then to decide whether the suIt has become infructuous. But certainly, the plaint could not have been rejected for want of cause of actIon. Therefore, the revision Is dIsmIssed. VK Sd? JUDGE