ASHIM KUMAR BANERJEE,J. - (1.) KUMARI Anupam was studying in Vivakanand Kendra Vidyalaya School run by a society. Her father was giving free service to the school. The school thus waived the fees of Anupam since her admission in the said school. In 2004 there had been dispute and difference between her father and the school resulting ouster of her father in September 2004. Since then her father was not attached to the said school. The litigation is pending between him and the school. In the civil suit being OA No.11 of 2005 filed by her father the school filed written statement, paragraph 12 being relevant herein is quoted below: "12.With reference to submission made in para 13 of the plaint the same is denied and disputed and the plaintiff is put to strict proof thereof. It is once again reiterated that neither the plaintiff was appointed against any post nor he was transferred from any place of posting to any other place, the plaintiff voluntarily rendered his service exclusively as "Seva Viriti" the plaintiff was only given with honorarium time to time. It is worthwhile to submit that upon the service rendered by the plaintiff his children have been given complete free education till this day rest all claims and contentions is hereby denied and disputed as the same bears no relevance in the case of plaintiff."
(2.) THE School filed the said written statement on May 29, 2006. The present litigation would relate to notice of demand received by Anupam for payment of Rs 26,500.00 on account of tuition fees for four consecutive years from 2003 to 2007 for classes V, VI, VII and VIII. The notice was dated July 6, 2006. Anupam filed a suit inter-alia challenging the notice. However, on the threat of striking off the name she was compelled to deposit the said sum to obtain Transfer Certificate. The learned Civil Judge (Junior Division), Port Blair heard the said suit and decreed the same. The learned Judge relied on the said written statement being exhibit four thereof. The learned Judge observed, so long the father of the plaintiff was in service no question arose to charge fees for the plaintiff's education. The learned Judge held "it is established that school fees have to be paid within one month otherwise, his name is liable to be struck off from the Roll of the school. So the onus is shifted upon the defendant to prove by oral or documentary evidence that the school can collect arrear fees from a defaulting student at any time. But the defendant failed to discharge their onus." The learned judge also considered the plea of limitation. The plaintiff had to deposit Rs. 30,100.00, hence, the court directed refund of the said sum together with interest @ 9% per annum. Being aggrieved, the school filed an appeal before the learned District Judge. The Learned District Judge affirmed the decision for the period when the student was studying in the school while her father was in service. The learned District Judge set aside the order and decree with regard to the post termination period by observing "But it is not decided whether the respondent is liable to pay tuition fees for the intervening period, starting from the termination of the service of her father and her leaving the school." The learned judge remanded the matter back to the learned Civil Judge (Junior Division) for the limited purpose to decide as to whether the student was liable to pay tuition fees for the period between termination of service of her father till her leaving to school. The learned Judge however, did not specifically direct refund of earlier part that was affirmed by him. Being aggrieved, the student filed the instant appeal. The school however accepted the decision with regard to the pre termination period and does not file any cross objection. Mrs. Anjili Nag learned counsel appearing for the appellant contended, once her father was working in the school giving voluntary service the school decided to waive the tuition fees that would appear from the written statement filed in OS No.11 of 2005 being Exhibit 4 herein, thus the school could not have issued the notice of demand. Once the school waived the school fees they lost their right to claim it afterwards that too, beyond the period of limitation. Appearing for the school, Mr Jayapal learned counsel took the plea of maintainability. According to him under Order XLIII Rule 1 (u) the second appeal was not maintainable. He also contended, the suit was itself not maintainable in absence of leave under Order I Rule 8 as the school was being run by a society registered under the provisions of Society Registration Act. Mr Jayapal in usual fairness contended, the school accepted the decision of the court for the period when her father was serving the school, the school only demanded the payment once her father left the school as there was no reason for waiving the fees. We have considered the rival contentions. Under Order XLIII Rule 1 (u) the order of remand passed under Order XLI Rule 23 and 23 A was appealable. If we look to the Rule 23 and 23 A we would find that it was case of remand of preliminary issue, the same would not be applicable in the instant case.
(3.) IN this regard, the Apex Court decisions in the case of Narayanan-Vs-Kumaran & ors. reported in 2004 Volume 4 Supreme Court Cases Page 26 and in the case of Jegannathan-Vs- Raju Sigamami & another reported in 2012 All India Reporter Supreme Court, Page 3788 may be looked into. The second plea taken by Mr Jayapal on Order I Rule 8 of Code of Civil Procedure, this point was never urged before the first appellate court, at least it does not appear from the judgement and order. Order I Rule 8 would empower a person to sue on a common cause on his behalf as well as on behalf of others with the permission of court. We fail to appreciate, how the present suit would be bad when the plaintiff fought on her personal right against the school being a body corporate run by a society registered under Society Registration Act. In any event such plea was never taken earlier.;