Tehsil Rajgarh District Alwar. vs Through Chief Executive Officer Cum Secretary, Zila Parishad,

Order

1. Instant Second Appeal is preferred by appellant-plaintiff aggrieved from judgment dated 24.08.1999 in civil regular appeal No. 01/1999 passed by learned Additional District Judge No.1, Alwar whereby an appeal preferred by respondent(s)-defendant(s) to challenge judgment and decree dated 21.01.1999 in civil suit No. 383/1996 was allowed and suit of present appellant-plaintiff was dismissed.

2. Learned counsel appearing on behalf of appellant while placing reliance upon judgment in case of The Sarpanch Gram Panchayat Bedla Vs. Chunnilal Paneri and Ors. MANU/RH/0016/2016 has submitted that plaintiff has filed a suit for declaration and mandatory injunction which was decreed [2025:RJ-JP:23490] (2 of 8) [CSA-487/1999] by the Trial Court but on an appeal preferred by respondent(s)- defendant(s) same was allowed on grounds not part of the pleadings by the Appellate Court without considering that no objection whatsoever was raised by the defendant(s) in their written statement and moreover no issue was framed by the Trial Court. He also submitted that Section 109 of the Rajasthan Panchayat Act provides for service of notice but a suit cannot be rejected in toto on ground that no notice under Section 109 was served. He also raised the issue of judicial discipline regarding the First Appellate Court and submitted that the reversal of judgment is contrary to provisions under Order 41 of CPC.

3. Aforesaid contentions were opposed by learned Government Counsel appearing on behalf of respondents and submitted that a civil suit was instituted in appointment matter and in said subject- matter it is mandatory for the plaintiff to serve a notice under Section 109 but no notice was served before instituting suit. He also submitted that a legal issue can be raised at any stage without any specific pleading or a specific objection. He also submitted that the First Appellate Court has considered the grounds and after considering these grounds has observed that the objection of notice was raised in written statement but the Trial Court has committed serious error while not framing a specific issue. He further submitted that even if the issue is not framed, the Trial Court is under an obligation to consider the legal provision and without considering legal provisions the Trial Court cannot pass a decree.

4. Heard learned counsels for the parties and perused the record. [2025:RJ-JP:23490] (3 of 8) [CSA-487/1999]

5. In brief, the facts giving rise to institution of present second appeal are that appellant-plaintiff has filed a civil suit stating that plaintiff has applied for the post of ‘Teacher Grade-III’ in pursuant to advertisement No. 09/1995 issued by defendants and he was in waiting list at serial No. 60. The plaintiff was later called for an interview on 14.05.1996 for verification of his original documents. Subsequently, the plaintiff was not given appointment rather less meritorious candidate was appointed. The plaintiff has filed a civil suit for declaration of selection list as null and void and inclusion of name of plaintiff in the selection list with direction to appoint plaintiff on said post. The defendants have filed written statement after appearance and admitted issue of advertisement but denied allegation of favoritism, arbitrary attitude and mala fidy. The defendant has also denied that a less meritorious candidate was given appointment instead of present appellant-plaintiff. The defendant has raised objection about limitation, non-service of notice and non-impleadment of affected person(s). The Trial Court has framed 4 issues. The appellant-plaintiff PW-1 Manohar Lal examined himself as witness whereas DW-1 was examined by defendant(s). The defendants have exhibited three documents. The plaintiff has not exhibited any document. This Court while considering the appeal has framed following substantial questions of law. (i) Whether the learned Appellate Court had committed serious illegality in allowing the appeal on the sole ground that no notice under Section 109 of the Act was given before filing of the suit even through no issue in this regard was framed by the Trial Court?

6. A perusal of record clearly suggests that the defendant(s) have raised on objection in their written statement about non- [2025:RJ-JP:23490] (4 of 8) [CSA-487/1999] service of notice before institution of civil suit. Moreover, the defendants have also raised issue of limitation, non-impleadment of necessary party Kamal Kumar who was successful candidate and allegedly appointed by contrary to seniority of present appellant-plaintiff. It is also an admitted position that no application whatsoever is filed by defendants under Order XIV Rule 5 of CPC to frame additional issues, during pendency of civil suit.

7. It is a settled legal position that any ground which goes to the root of the case like jurisdiction or limitation can be raised at any stage of legal proceedings even if not specifically pleaded. This legal position is only in respect of a pure question of law and not for any factual ground. A legal issue is the issue which does not require a fact or evidence and can be raised at any stage including the stage of appeal.

8. In case of Kailash vs Nanhku & Ors. (2005) 4 SCC 480, a 3 Judge Bench of Hon’ble Supreme Court while considering several issues has observed that all the rules of procedure are handmade of justice. The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. The justice is the goal of jurisprudence. In case of Sugandhi (Dead) vs P. Rajkumar (2020) 10 SCC 706 Hon’ble Supreme Court has held that the procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. [2025:RJ-JP:23490] (5 of 8) [CSA-487/1999]

9. In the present case despite specific pleadings by defendants the Trial Court has not framed a specific issue either on non- service ofnotice or on limitation, though these are two legal grounds. Any Court can consider the ground of limitation, which may be a mixed question of fact and law but it all depends upon facts of the each case but on a non-service of notice is a legal ground and particularly when a specific provision is made in the law.

10. In case of Bachhaj Nahar vs Nilima Mandal & Ors. 2008 17 SCC 491 Hon’ble Supreme Court has observed that the object to frame issue is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. A case not specifically pleaded can be considered by the court only, when there is where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon.

11. The written statement clearly suggests that a specific ground was framed and the plaintiff was well-aware about process of institution of suit and framing of issues. The plaintiff has filed a suit against Zila Parishad and he is aware about the provision of Section 109 of the Rajasthan Panchayat Act, 1994 (hereinafter referred as the Act of 1994). Section 109 of the Act of 1994 is reproduced as under:- “109. Suits etc. against Panchayat, Panchayti Samiti and Zila Parishad:- [2025:RJ-JP:23490] (6 of 8) [CSA-487/1999] (1) No suit or other civil proceedings against a Panchayati Raj Institution or against any member, officer or servant thereof or against any persons acting under the direction of a Panchayati Raj Institution or any member, officer or servant thereof for anything done or purporting to be done under this Act in its or his official capacity- (a) shall be instituted until the expiration of two months, after notice in writing, stating the cause of action the name and place of abode of the intending plaintiff and the nature of the relief which he claims, has been delivered or left at its office or, in the case of a member, officer, servant or person as aforesaid, delivered to him or left at the office or at his usual place of abode, and the plaint shall in each such case contain a statement that such notice has been so delivered or left, or (b) shall be instituted, unless it is a suit for the recovery of immovable property or for a declaration title thereto, otherwise than within six months after transfer next the accrual of the alleged cause of action (2) The notice referred to in Sub-Section (1), when, it is intended for a Panchayat, Panchayat Samiti or a Zila Parishad shall be addressed to the Sarpanch, Vikas Adhikari or the Chief Executive Officer respectively.

12. Section 109 mandates that before filing of any suit a notice is required to be served to Panchayat, Panchayat Samiti or a Zila Parishad and shall be addressed to the Sarpanch, Vikas Adhikari or the Chief Executive Officer. Herein, the relief is claimed against Zila Parishad through CEO, therefore, a notice is mandatorily to be served upon defendant No.1. There is no provision under Section 109 for exemption from service of notice as provided under Section 80(2) of C.P.C. The defendant(s) have raised the ground of non-service of notice in their written statement but the Trial Court has not framed any issue. Though, due to negligence of a Government counsel, no application was filed for framing of additional issues but still it is duty of the Trial Court to consider the grounds as raised in the written statement. It is also evident from the facts mentioned by the Trial Court that even the Trial Court has not considered these grounds particularly about limitation and the non-service of notice before institution of suit. [2025:RJ-JP:23490] (7 of 8) [CSA-487/1999] The Trial Court is well-aware about that the plaintiff has specifically pleaded about appointment of Kamal Kumar who was not made a party by the plaintiff. In his evidence, the plaintiff has challenged the appointment of Kamal Kumar who on lower in rank than plaintiff and was appointed as Teacher Grade-III. It indicate that the Trial Court has not considered procedural aspect of the case particularly when a dispute relating to appointment was challenged.

13. The duty lies upon the plaintiff to prove the fact and his admission also indicate that he has not arrayed Kamal Kumar as defendant. The admission also indicate that Kamal Kumar was given 3% more marks than him due to some State Level Certificates. The plaintiff has not challenged the award of marks to Kamal Kumar but his dispute is very specific. It clearly shows that the plaintiff has not pleaded correct facts in his plaint. The evidence of plaintiff also suggests that he has not exhibited any document in support of his evidence whereas defendant has submitted three documents relating to the case and all these documents explains the real facts as mentioned by DW-1 in his evidence. The objection about Section 109 is purely a legal objection and the Appellate Court is empowered to consider the ground even if no specific issue is framed by the Trial Court. The duty lies upon the Trial Court to consider legal issue but the Trial Court has not considered the legal issue. Admittedly, the plaintiff has neither pleaded nor deposed about service of notice before institution of civil suit. Section 109 does not provides for any exemption in case of urgency. [2025:RJ-JP:23490] (8 of 8) [CSA-487/1999]

14. Otherwise also, the total marks of Kamal Kumar is 90.116 as per Ex. A.3 whereas the plaintiff has claimed 87.358 marks as per Ex. A.1. The perversity and illegality committed by the Trial Court is available on record and the Appellate Court has not committed any illegality while considering mandatory provision of Section 109 of the Act of 1994.

15. In view of discussions made hereinabove, I am of the considered view that the Appellate Court has not committed any error and when law mandates service of notice on clear 60 days and non-filing of suit before expiry of 60 days then a suit is required to be rejected. Moreover, looking to factual facts of the case, I am of the considered view that even on merits no case is made out for interference in appointment process. The substantial question of law is answered in negative and the appeal is liable to be dismissed.

16. In view of discussions made hereinabove, the instant second appeal preferred aggrieved from judgment dated 24.08.1999 in civil regular appeal No. 01/99 is hereby dismissed.

17. Pending application(s), if any, also stands disposed of.

18. No order as to costs. MONU /84-S (ASHOK KUMAR JAIN),J