- (1.) R. B. Mehrotra, J. The substantial question of law involved for consideration in the present second appeal is as to whether the order of the lower appellate court rejecting the plaintiff's application for amending the plaint at the lower appellate stage by its order, dated 19-2-1988 is sustainable in law.
(2.) FOR determination of the aforesaid substantial question of law the facts necessary to be stated for the decision of the second appeal, are as under: Bamdeo Upadhya, the plaintiff filed a Suit No. 406 of 1976 in the court of 5th Munsif Magistrate, Ballia against Kshetriya Sri Gandhi Ashram, Phephna (Baliia) and one Sri Ram Yagya Singh, Secretary, Kshetriya Sri Gandhi Ashram, Phephna. In the aforesaid suit, the plaintiff prayed for a relief of mandatory injunction against the defendants restraining them from interfering in the functioning of the plaintiff as an employee of Kshetriya Sri Gandhi Ashram, Phephna. The trial court decreed the suit of the plaintiff holding that the termination of the plaintiff's services was patently illegal. The trial court recorded a categorical finding that the services of the plaintiff including all the employees of Gandhi Ashram are governed by Ashram Sewa Niyam, 1972 and there is a clear provision in Rule 16 of the aforesaid Rules that if any complaint is made against an employee, the employer Will serve a show cause notice along with charge-sheet asking the employee to give his reply and in case the charges are denied by the employee, then an Enquiry Officer will be appointed and on his report, the matter will be considered. The trial court further held that the provisions of the Rules have not been complied with and the services of the plaintiff have been arbitrarily terminated by the respondents which is in violation of the Rules framed by Gandhi Ashram for governess of its employees, as such, held that the service of the employees was illegally terminated by the defendants. The trial court also rejected the defendant's objection that the suit was not main tainable, as it was for enforcement of a personal contract. The trial court took a view that since the Institution was registered under Societies Registra tion Act and was established for promoting public cause of organising sale of Khadi which still symbolise freedom movement, are public institutions are not private bodies. Aggrieved by the aforesaid judgment, the defendants filed Civil Appeal No. 389 of 1980, Kshetriya Sri Gandhi Ashram and others v. Bamdeo Upadhya. Some of the grounds raised in the aforesaid appeal by the defendants were regarding maintainability of the suit on the ground that the defendants were not statutory bodies and the suit of the plaintiff for enforce ment of the personal contract, was not maintainable. In the light of the grounds raised by the defendants in Appeal, the plaintiff filed an application seeking only amendment in the relief of the plaint which was as under: " (c) In the alternative of relief (a) and (b) the plaintiff may kindly be allowed such damages for compensation as this Hon'ble Court may deem fit and proper in the circumstances of the case. "
(3.) THE I Additional District Judge, Ballia, vide his order, dated 10-2-1982 has allowed the defendants' appeal and has set aside the judgment of the trial court only on the ground that the suit, as framed by the plaintiff, was not maintainable, as relief sought in the plaint was essentially for enforcement of a contractual obligation. THE lower appellate court has placed reliance on a decision of the Supreme Court in the matter of Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others, reported in AIR SC page 888 (sic ). The lower appellate court while deciding the aforesaid appeal, first considered the amendment application moved by the plaintiff in the appeal. The lower appellate court rejected the amendment application mainly on the ground that the reliefs sought by the amendment at the appellate stage by the plaintiff claiming damages as an alternative, are banned by time and on the aforesaid basis it held that the relief sought to be added is already time barred. The appellate court since rejected the amendment application, it did not advert itself to the legality of the termination of the services of the plaintiff or on the claim of damages as a consequence thereof. The only ground raised in the appeal is that the lower appellate court has erred in law in rejecting the plaintiff's application on the ground that the claim of the plaintiff is barred by time on the date the application has been made.;