# Transport Corporation of India Varanasi v. Vijayanand Singh @ Vijaymal Singh & Anr

- **Citation:** (2015) 2 ILRA 789
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-01
- **Case number:** Second Appeal Defective No. 268 of 2014
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/transport-corporation-of-india-varanasi-v-vijayanand-singh-vijaymal-singh-anr-43186
- **Pages:** 5

## Headnote

C.P.C.-Section
100-Second
AppealAgainst order rejecting First Appeal -as
not maintainable-in Original Suit on date
fixed
neither
Plaintiff/Appellant
appeared nor adduced any evidence
advanced-Trail Court in accordance with
previous order 17 Rule 2 C.P.C dismissed
the Suit due to want of evidencemeaning thereby dismissed in defaultheld not a decree within definition of
Section 2(2) C.P.C.-hence appeal under
Section 96 not maintainable-no question
of
Second
Appeal-dismissed
as
not
maintainable.
Held: Para-26
The dismissal of the suit of the trial court
as per the order referred to above was
not an adjudication of the rights of the
parties involved in the suit which can be
formally expressed. It was simply an
order of dismissal of the suit without any
adjudication of any lis or rights of the
parties. Therefore, the order of the trial
court dated 24.7.2013 does not conform
to the definition of a decree as contained
in Section 2(2) C.P.C. In that situation,
as it was not a decree, it was not amiable
to appeal under Section 96 C.P.C.
Case Law discussed:
(1999) 4 SCC 89; (2015) 2 SCC 682; AIR 1977
MP 1 (FB)

## Text

2 All] Transport Corporation of India Varanasi Vs. Vijayanand Singh @ Vijaymal Singh & Anr.
789
vacancies,
where
the
process
of
appointment had been initiated prior to 25
January 1999 by the publication of an
advertisement, would continue to be
preserved;
(b) On the enforcement of the
provisions of Section 33-E, the power of a
Committee of Management to make ad
hoc appointments against short term
vacancies would not stand abrogated in a
case where the process of selection had
been initiated prior to 25 January 1999;
(c)
Under Section 16-E of the
Intermediate Education Act, 1921, the
Committee of Management is empowered to
make an appointment against a temporary
vacancy caused by the grant of leave to an
incumbent for a period not exceeding six
months or in the case of death, termination or
otherwise, of an incumbent occurring during
an educational session. An appointment
made under sub-section (11) of Section 16-E
as provided in the proviso thereto shall, in
any case, not continue beyond the end of
educational session during which the
appointment was made; and
(d) The judgment of the Division
Bench in Subhash Chandra Tripathi
(supra) is affirmed as laying down a
correct interpretation of the judgment in A
A Calton (supra).
21. The reference to the Full Bench
is answered in the aforesaid terms. The
special appeal shall now be placed before
the appropriate Bench for disposal in the
light of this judgment.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2015
BEFORE
THE HON'BLE PANKAJ MITHAL, J.
Second Appeal Defective No. 268 of 2014
Transport Corporation of India Varanasi
 ...Appellant
Versus
Vijayanand Singh @ Vijaymal Singh &
Anr.
...Respondents
Counsel for the Petitioner:
Sri Dharampal Singh, Sri S. Niranjan, Sri
P.K. Dubey
Counsel for the Respondents:
Sri P.C. Pathak, Sri Rajeev Mishra
C.P.C.-Section
100-Second
AppealAgainst order rejecting First Appeal -as
not maintainable-in Original Suit on date
fixed
neither
Plaintiff/Appellant
appeared nor adduced any evidence
advanced-Trail Court in accordance with
previous order 17 Rule 2 C.P.C dismissed
the Suit due to want of evidencemeaning thereby dismissed in defaultheld not a decree within definition of
Section 2(2) C.P.C.-hence appeal under
Section 96 not maintainable-no question
of
Second
Appeal-dismissed
as
not
maintainable.
Held: Para-26
The dismissal of the suit of the trial court
as per the order referred to above was
not an adjudication of the rights of the
parties involved in the suit which can be
formally expressed. It was simply an
order of dismissal of the suit without any
adjudication of any lis or rights of the
parties. Therefore, the order of the trial
court dated 24.7.2013 does not conform
to the definition of a decree as contained
in Section 2(2) C.P.C. In that situation,
as it was not a decree, it was not amiable
to appeal under Section 96 C.P.C.
Case Law discussed:
(1999) 4 SCC 89; (2015) 2 SCC 682; AIR 1977
MP 1 (FB)
(Delivered by Hon'ble Pankaj Mithal, J.)
1. The suit of the plaintiff/appellant
was dismissed by the court of Civil Judge
790
 INDIAN LAW REPORTS ALLAHABAD SERIES
(S.D.), Varanasi on 24.7.2013 for the nonpresence of the plaintiff/appellant and for
want of evidence, after rejecting the
application for adjournment.
2. An appeal preferred against the above
order by the plaintiff/appellant was dismissed
by the appellate court vide judgment and order
dated 18.10.2014 as not maintainable with
observation to apply under Order 9 Rule 9
C.P.C. for recall of the above order.
3. The above two orders have been
assailed by the plaintiff/appellant by
means of this second appeal.
4. The office of the Stamp Reporter
has reported that the second appeal is not
maintainable.
5. On query being made as to why
the appeal is not maintainable a further
report was submitted that the instant
appeal is not maintainable in view of
Order 42 Rule 1 C.P.C.
6.
Order 42 Rule 1 C.P.C. simply
provides that Rules of Order 41 C.P.C. shall
apply to the appeals from appellate decrees.
It is difficult to comprehend the above
objection of the office of the Stamp Reporter
as Rule 1 of Order 42 C.P.C. in no way
prohibits further appeal from the order
dismissing the appeal.
7. In view of above, the objection of
the Stamp Reporter is overruled.
8. I have heard Sri Dharampal
Singh, Senior advocate on behalf of
plaintiff/appellant and Sri Rajeev Mishra
for the defendants/respondents.
9. Sri Singh has argued that the
lower appellate court has manifestly erred
in law in dismissing the appeal as not
maintainable.
The
suit
of
the
plaintiff/appellant was not dismissed in
default simplicitor but also for insufficient
evidence. Therefore, the order dismissing
the suit was appealable and not liable to
be set aside under Order 9 Rule 9 C.P.C.
10. Sri Rajeev Mishra, on the other
hand, contends that in view of Order 17
Rule 2 and 3 C.P.C., the order dismissing
the suit in default can be recalled, if
necessary, under Order 9 Rule 9 C.P.C.
and since the order is not in the nature of
decree the appeal has rightly been
dismissed as not maintainable.
11.
On the respective submissions of
the parties, the only question of law involved
in this second appeal is whether the order of
the trial court dismissing the suit in default and
for want of evidence is appealable under
Section 96 C.P.C., and consequently the
present appeal is maintainable.
12.
Learned counsel for the parties
agreed for the final disposal of the appeal at
the stage of admission by dealing with the
above aspect of the matter, as no factual
dispute is involved and accordingly addressed
the Court on the above substantial question of
law as formulated during the course of
arguments & made known to them..
13. The relevant part of the order
dated 24.7.2013 of the trial court
dismissing the suit reads as under:
Þvr% LFkxu izkFkZuki= 158?k fujLr fd;k
tkrk gS oknh dk okn oknh dh vuqifLFkfr ,oe~
lk{;kHkko esa [kkfjt fd;k tkrk gSA i=koyh nkf[ky
nQ~rj gksA---ß
14. The trial court by the above
order dismissed the suit for absence of the
2 All] Transport Corporation of India Varanasi Vs. Vijayanand Singh @ Vijaymal Singh & Anr.
791
plaintiff/appellant
and
for
want
of
evidence.
15. Rule 3 of Order 17 C.P.C.
enables the Court to proceed with the suit
notwithstanding failure of either of the
party to produce evidence. It reads as
under:
"3.
Court
may
proceed
notwithstanding either party fails to
produce evidence, etc. - Where, any party
to a suit to whom time has been granted
fails to produce his evidence, or to cause
the attendance of his witnesses, or to
perform any other act necessary to the
further progress of the suit, for which time
has been allowed, the Court may,
notwithstanding such default, -
(a) if the parties are present, proceed
to decide the suit forthwith; or
(b) if the parties are, or any of them,
is absent, proceed under Rule 2."
16. Under Rule 3 aforesaid where,
any party to the suit fails to adduce
evidence or to perform any other act for
which time has been allowed by the
Court, the Court may proceed with and
decide the suit, if the parties are present,
or if any one of them is absent, proceed
under Rule 2 of Order 17 C.P.C. Thus,
this rule provides for two options to the
Court. The first option to proceed with the
suit and decide it if the parties are present.
The second option to proceed under Rule
2 if any one of the parties is absent.
17. Rule 2 of Order 17 C.P.C.
provides that where on the date of hearing
any party fails to appear the Court may
dispose of the suit in one of the modes
directed in that behalf by Order 9 C.P.C.
or make such order as it thinks fit.
18. In other words, the above rule
permits the Court to proceed under Order
9 C.P.C. if the party fails to appear in suit
on the adjourned date of hearing.
19. Order 9 Rule 8 C.P.C. in turn
provides that where on the date of hearing
of the suit defendant appears and the
plaintiff fails to appear, the Court shall
make an order that the suit be dismissed,
unless the defendant admits the claim or
part thereof.
20. A conjoint reading of all the
above three provisions would reveal that
where the party fails to produce the
evidence and is not present, the Court can
proceed under Rule 2 of Order 17 C.P.C.
which permits the Court to dispose of the
suit in one of the modes prescribed under
Order 9 C.P.C. One of the modes
prescribed under Order 9 C.P.C. is
contained under Rule 8 of Order 9 C.P.C.
which empowers the Court to dismiss the
suit in default for absence of the plaintiff
if the defendant is present.
21. Thus, a suit can be dismissed in
default both for the absence of the
plaintiff and for want of production of
evidence on his behalf.
22. In the instant case, the suit was
fixed for evidence of the plaintiff on the
adjourned date. On the adjourned date the
plaintiff failed to appear to adduce any
evidence. The Court, therefore, proceeded
in accordance with Rule 3 of Order 17
C.P.C. read with Rule 2 of Order 17
C.P.C. to dispose of the suit in one of the
modes prescribed under Order 9 C.P.C.
Since the defendant was present and
plaintiff had failed to appear and adduce
evidence the suit was dismissed in
default. Therefore, the dismissal of the
792
 INDIAN LAW REPORTS ALLAHABAD SERIES
suit for want of evidence was essentially
dismissal in default as contemplated by
Rule 8 Order 9 C.P.C. Accordingly, it was
open for the plaintiff to have applied
under 9 Rule 9 C.P.C. for setting aside the
dismissal on the fulfilment of the
conditions laid down therein.
23.
A plain reading of Section 96
C.P.C. postulates that the appeal lies against
a decree passed by the Court exercising
original jurisdiction and not against any
judgment or order. The term 'decree' has
been defined in Section 2(2) C.P.C. to mean
a formal expression of an adjudication
which conclusively determines the rights of
the parties with regard to to all or any of the
matters
in
controversy
in
the
suit.
Accordingly, adjudication of a lis involved
in a suit between the parties is necessary to
constitute a decree. In the case of R.
Rathinavel Chettiar1 it has been held that a
decree must fulfil the following essential
elements:
(i)There must be an adjudication in a
suit.
(ii)The adjudication must determine
the rights of the parties in respect of, or
any of the matters in controversy.
(iii)Such determination must be a
conclusive determination resulting in a
formal expression of the adjudication.
24. The aforesaid decision has been
followed with approval by the Supreme
Court recently in the case of Rajni Rani2.
25. The reliance placed upon the
case of Budhulal Kasturchand3 is of no
assistance. In the aforesaid case the court
was only concern with the dismissal of
the suit for default in payment of costs for
adjournment. It was not a case of
dismissal of suit simplicitor for default of
the party to appear on adjourned date of
hearing rather in the said case parties
were present.
26. The dismissal of the suit of the
trial court as per the order referred to
above was not an adjudication of the
rights of the parties involved in the suit
which can be formally expressed. It was
simply an order of dismissal of the suit
without any adjudication of any lis or
rights of the parties. Therefore, the order
of the trial court dated 24.7.2013 does not
conform to the definition of a decree as
contained in Section 2(2) C.P.C. In that
situation, as it was not a decree, it was not
amiable to appeal under Section 96 C.P.C.
27. In view of the aforesaid facts
and circumstances, I am of the opinion
that the lower appellate court committed
no error in law in dismissing the appeal of
the plaintiff as not maintainable.
28. In the event the appeal was not
maintainable before the lower appellate
court, as there was no decree to be
appealed against, the second appeal
before this Court would also not be
maintainable.
29. The substantial question of law
involved in this appeal is accordingly
answered and it is held that the order of
the trial court dismissing the suit for
absence of plaintiff and for want of
evidence is not in the nature of a decree
against which an appeal would lie under
Section 96 C.P.C. Consequently, no
further appeal would lie against it under
Section 100 C.P.C. to this Court.
30. The appeal is, therefore,
dismissed with no order as to costs.
--------
2 All] U.P. Power Corporation Ltd. Lucknow & Anr. Vs. Nitin Kumar & Ors.
793
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
Special Appeal No. 310 of 2015
U.P. Power Corporation Ltd. Lucknow &
Anr.
 ...Appellants
Versus
Nitin Kumar & Ors.
...Respondents
Counsel for the Appellants:
Sri J.P. Pandey
Counsel for the Respondents:
C.S.C., Sri Siddharth Khare
U.P. Public Service (Reservation for SC/ST
and other Backward Classes) Act 1994Section 3 (6)-Petitioner under OBC quotaparticipated in written examination-getting
much higher marks than last candidates of
General candidate-can not be treated as
reserved candidate-Learned Single Judge
rightly
declined
to
interfere-appeal
dismissed.
Held: Para-14
For these reasons, we are of the view
that there was no error in the judgment
of the learned Single Judge. The learned
Single Judge has upheld the right of the
appellants to carry out short-listing.
However, the appellants have been
faulted for having excluded candidates
belonging to the reserved categories
from the short-list of candidates for the
unreserved posts which has resulted in a
situation where candidates with higher
marks failed to get short-listed for the
unreserved posts merely because they
belong to a reserved category. The view
of
the
learned
Single
Judge
and
directions
which
have
been
issued
consequently do not suffer from any
error.
Case Law discussed:
(2009) 5 SCC 1; 2007 (2) ADJ 150 (DB)2;
2008 AWC 1391
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The special appeal has arisen
from the judgment of a learned Single
Judge dated 16 April 2015.
2. An advertisement was issued by the
Electricity
Service
Commission1
for
recruitment on 2211 posts of Technician
Grade-II (Trainee) Electrical. Of these posts,
the posts reserved for OBC, Scheduled Caste
and Scheduled Tribe candidates were as
follows:
(i) OBC - 597 posts;
(ii) Scheduled Castes - 464 posts; and
(iii) Scheduled Tribes - 44 posts.
3.
Thus, out of 2211 posts that were
advertised, 1105 were reserved. 1106 posts
were unreserved and were to be filled up by
open competition. The selection process
comprised of a written test followed by an
interview. The Commission released a list of
candidates who were declared to be
successful in the written examination on the
basis of which candidates were to be called
for an interview. The Commission called
three times the number of candidates for
interview from each category applying what
is described as a '3x formula'. The petitioners
who filed writ proceedings before the learned
Single Judge were candidates belonging to
the OBC category. Their grievance was that
though
the
last
candidate
from
the
unreserved category had secured lower
marks, none of the petitioners were called for
the interview.
4. In the affidavit which has been
filed on behalf of the Commission, it has