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Petitioner: JOGESH CHANDRA DAS VS Respondent: K. Z. RAHMAN
P L D 1965 Dacca 390
P L D 1965 Dacca 390
Before Sikandar Ali, J
JOGESH CHANDRA DAS‑Petitioner
Versus
K. Z. RAHMAN AND OTHERS‑Opposite‑Parties
Civil Rule No. 1322 of 1962, decided on 20th August 1964.
(a) Civil Procedure Code (V of 1908),
O. VIII‑A‑Counter‑claim‑No nexus between, claims of defendant and plaintiff ---Provisions of Order not applicable.
(b) Civil Procedure Code (V of 1908),
O. VIII‑A, r. 3‑ Compliance with provision‑Not mere formality.
A. K. M. Nurul Islam for Petitioner.
M. A. Aleem for the Opposite‑Parties.
JUDGMENT
This application for revision under section 25 of the S. C. C. Act is directed against the judgment and do tree passed by the learned S. C. C. Judge at Manikgonj in S. C. C. Suit
No. 51 of 1962 of his Court. It appears that the Director of Public Instruction through the Inspector of the Range concerned sanctioned a lump grant of Rs. 550 to Manikgonj High School [n the district of Dacca in recognition of good work during the current financial year 1958‑59" and placed the same at the disposal of the Managing Committee of the said school with the instruction that "the benefit should mainly go to the teachers who have been working in the school since 1957 for their encouragement." The Managing Committee accordingly disbursed the bulk of the grant to the teaching staid of the school on its roll at that time and the balance to the menials and some other employees of the school. Nothing thus was given to the plaintiff who was from the teaching staff of that school with effect from 1‑2‑59 after putting in service there for 41 years first as a teacher and thereafter as the Head Master for a period of 10 years. The plaintiff made persistent efforts on his own as well as through the sanctioning authority; i.e., the Range Inspector of Schools, to induce the Managing Committee to extend the benefit of the award to him but to no purpose. Eventually he instituted the suit out of which this revision has arisen claiming from the defendants, i.e. the President and members of the Managing Committee of the school concerned, a sum of Rs. 120 as his share of the said award together with a further sum of ices. 20 as damages. The defendants entered appearance jointly and resisted the plaintiff's claim on the contention that keeping in view the instructions given in the sanctioning memorandum the Managing Committee disbursed the amount to the teachers who were working in the school till then for their encouragement as well as to the menials and other employees of the school and that the plaintiff having ceased to be on the teaching staff of the school at the relevant time was not entitled to the benefit of the award. According to them the grant was, as per instructions laid down in the said memorandum, meant for those teachers and employees who were in the employ of the school at the time of the award and for the purpose of their encouragement and the plaintiff not being in service of the school at the time, referred to above, could not lay any claim to the award money. Mention was also made in the written statement of a certain overdrawal made by the plaintiff while in service. The relevant paragraph in the written statement runs thus:‑
"That the plaintiff in course of last ten months of his service made overdraw of Rs. 220 by drawing his salary at the rate of Rs. 315 in place of Rs. 293 as sanctioned in the Memo. No. 1139 (5) dated 5‑3‑59 of the Inspector of Schools and that has not been refunded by the plaintiff as yet. This fact was also a matter for consideration along with others at the time of distribution of the grant in question."
It was also pleaded that "the manner of the distribution of the grant concerned among the teachers and other employees and the selection of the recipient teachers were the absolute right of the Managing Committee and the D. P. I. and Inspector of Schools had or have, according to law, no right to interfere in the matter. The D. P. I. or the Inspector of Schools have or had no right to interfere or order for any modification or alteration of any resolution adopted by the Managing Committee. Then on the date of trial the defendants filed a petition praying for adjudication with respect to the amount of Rs. 220 overdrawn by the plaintiff in the manner stated in the paragraph of the written statement cited above on acceptance of the requisite Court‑fee thereon. Ultimately the learned Munsif, on a consideration of the oral and documentary evidence on record found the plaintiff not entitled to the benefit of the disputed award money and accordingly dismissed his claim in that behalf. He however, entertained the prayer with regard to the alleged counter‑claim of the defendants and upholding the same rendered a decree in respect thereof against the plaintiff.
Having regard to the pleadings of the parties in the case I have no hesitation to observe at the very outset that the suit instituted by the plaintiff was as misconceived as the decree rendered by the learned trial Judge for Rs. 220 as what he calls the counter‑claim of the defendants is unwarranted. It is indeed difficult to see how the plaintiff, or for the matter of that, any other member of the teaching staff, even assuming his entitlement could lay claim to a specified amount out of the grant as due to him. Similarly the above‑quoted recitals in the written statement as to the alleged overdrawal made by the plaintiff can hardly be regarded as a counter‑claim coming within the meaning of Order VIII‑A of the Code of Civil Procedure.
Coming now to merit it is seen that the learned trial Judge has taken the view that as the award was made for good work done during the financial year 1958‑59 and meant for distribution among the teachers who have been working in the school since 1957 for their encouragement," the plaintiff, who, by reason of his retirement prior to the award, ceased to be on the roll of the teaching staff at the relevant time, was not entitled to the benefit of the award. Use of the word `mainly' in the instruction that "the benefit should mainly go to the teachers who have been working in the school since 1957 for their encouragement" may no doubt be construed as vesting a discretion in the Managing Committee to extend the said benefit even to a teacher, who, as the plaintiff, might have put in good work during a part of the financial year concerned but retired period to the sanction of the award money, but even then the action of the committee to confine the award solely to the staff still on the roll, or in other words, its refusal to include an ex‑teacher falling in the category, indicated above, among the beneficiaries, cannot be said to amount to an illegality so as to found an action in law or justify interference by the Court. The learned Advocate appearing on behalf of the plaintiff-petitioner has, however, referred to some letters issued by the Range Inspector concerned (Exhs‑2 series) and argued that these show that the plaintiff also was entitled to the benefit of the award money by reason of his having served the school as a teacher during the financial year concerned, though for a part only. I may not rule the argument as absolutely unwarranted by the trend and language of those letters but cannot see my way to agree that the memorandum in question taken by itself and without straining its plain language could incontrovertibly admit of the interpretation that is sought to be put thereon in the said letters, even though that might have been the intention of the authority while it was issued. In other words, the interpretation put upon the said circular by the Managing Committee cannot be said to be unreasonable or incorrect. Moreover the said clarification came too late, i.e., after the amount had already been disbursed and the fund thus placed in the hand of the Managing Committee fully exhausted in accordance with a permissible interpretation of the relevant circular, as has already been made clear above. Even if it is taken that the Managing Committee had a discretion to extend the benefit to the plaintiff but declined to do so, there is, I should think, still an end of the matter there, as the Committee's action is not contrary to the instruction under which it was taken nor susceptible in the circumstances to charge of being discriminatory or mala fide, and the plaintiff cannot complain of infringement or denial of any conceivable right vesting in him. Thus the claim of the plaintiff for Rs. 120 out of the award money together with a sum of Rs. 20 as damages appears to have been rightly dismissed by the learned trial Judge. In saying so I must not, however, be understood to associate with the observation of the learned S. C. C. Judge that it appears from resolution No. 7, dated 7‑5‑59 and also resolution No. 3, dated 1‑6‑59 of the Managing Committee that they did not consider the case of the plaintiff for getting any award money." I fail to find anything in the said resolution, or for the matter of that, anywhere within the four corners of the record to indicate that the Committee considered the plaintiff unfit on the merit of the services rendered by him, i.e., that the services rendered by him were not satisfactory. As a matter of fact there is a resolution of the Managing Committee placing on record its appreciation of "the long faithful and efficient service rendered by Babu J. C. Das, the outgoing Head Master to this Institution". Thus the aforesaid observation made by the learned trial Judge in his judgment touching the plaintiff does not appear to be borne out by the materials on record.
I now pass on to the controversy relating to the decree made against the plaintiff in respect of the amount said to have been overdrawn by him. According to the learned trial Judge the defendants had preferred a counter‑claim in respect of the over drawal made by him to the tune of Rs. 220 and this was permissible under "the new amendment of the Code of Civil Procedure (vide Order VIII‑A, rules 3, 4 and 6)". The said Rules relied upon by the learned S. C. C. Judge are as follows:‑
"(3) Counter‑claim to be specifically stated in written statement. Where any defendant makes a counter‑claim and sets out in his written statement any grounds in support thereof he shall specially state what he claims as counter‑claim and the grounds in support thereof.
(4) Effect of counter‑claim. A counter‑claim shall have the same effect as a cross‑suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter‑claim.
(6) (sic) Counter‑claim may be proceeded with even where plaintiff's suit is dismissed, etc. If in any case in which the defendant sets up a counter‑claim the suit of the plaintiff is discontinued or dismissed, the counter‑claim may nevertheless be proceeded with."
In this connection it will also be necessary to consider another Rule embodied in the same Order, i.e. rule 1, relating to counter claim. It reads:‑
"I. Compulsory counter‑claim.‑A written statement shall state as a counter‑claim any claim within the jurisdiction of the Court, and not being a claim of the nature of set‑off provided for in rule 6 of Order VIII, which the defendant has at the time of filing the written statement against the plaintiff or against any of the plaintiffs, if it arises out of the act or transactions or series of acts or transactions which are the subject‑matter of such plaintiff's claim:
Provided that such a counter‑claim need not be so stated if at the time of institution of the suit the counter‑claim was the subject of another pending suit."
Thus a counter‑claim by the defendant in a suit, in order that it may come within the purview of this Rule i.e., rule I in, Order VIII‑A of the Code of Civil Procedure, must be such as arises out of the act or transaction or series of acts or transactions which are the subject‑matter of the plaintiff's claim. Where such nexus does not exist between the defendant's counter claim and the plaintiff's claim, provisions of the said Order are clearly inapplicable. This by itself again is not sufficient to make the counter‑claim justiciable in the plaintiff's suit. To that end it is further necessary as is enjoined under rule 3, that the defendant should not merely make his counter‑claim but also state specifically what he claims as such as well as the grounds thereof.
Now having regard to the fact that the plaintiff's claim related to a certain award money, the claim of the defendants to the alleged over‑drawal, even treating it to have been put forward as a claim, does not, in my opinion, come within the purview of rule 1 inasmuch as it cannot be said to arise out of the act or transaction or series of acts or transactions which are the subject- matter of the plaintiff's claim. Furthermore, the defendants cannot by any stretch of imagination be said to have put forward a counter‑claim within the meaning of rule 3 for the amount in question. All that they have done, as it appears to me, is that they referred to the said over‑drawal only as a fact taken into consideration for considering the eligibility of the plaintiff for the benefit of the award money in question and not as a claim for recovery of the same from the plaintiff. I should like to emphasise that compliance with the requirement of rule 3 cannot be regarded as a mere formality inasmuch as it is clearly meant to give precise notice to the plaintiff of the claim sought to be put forward by the defendants against him so that he may be in a position to meet the same. This is also E clearly indicated by the provision of rule 5, laying down that "when a counter‑claim is made in a written statement, plaintiff may deliver a reply to the counter‑claim within the time within which he may deliver a written statement if the counter‑claim, were a plaint".
It is important to note that in the present case the defendants not having put forward specifically, as required under rule 3, the amount of the said over‑drawal as a claim to be recovered from the plaintiff, the latter did not in fact file any written statement with respect thereto. In this view of the matter the plaintiff can rightly complain of having been taken by surprise by the petition filed at the eleventh hour by the defendants for adjudication in respect of the amount of the said over‑drawal and entertainment thereof by the learned trial Judge at that belated stage. Thus, in any view of the matter, the decree rendered against the plaintiff in this behalf cannot, in my opinion, be supported in law.
Having regard to the view thus taken by him I do not feel called upon to consider the contention put forward on behalf of the petitioner that the Managing Committee by resolution re-fitted the sum of Rs. 220 overdrawn by him.
The result, therefore, is that the impugned decree passed by the learned S. C. C. Judge dismissing the plaintiff's claim is maintained but the same decreeing the counter‑claim of the defen dants in respect of the alleged overdrawn amount of Rs. 220 is set aside and the petition filed by the defendants before the leaned S. C. C. Judge on the date of trial for adjudication of the said claim is rejected. Having regard to the circumstances, I lease the parties to bear their own costs.
The Rule is disposed of in the above terms.
K. B. A. Order accordingly.