J. R. CHOPRA, J. - (1.) THIS revision is directed against the appellate order of the learned Additional District Judge No. I, Udaipur dated 16. 12. 1986 where by the learned lower court has accepted the appeal against the order of the learned Munsif& Judicial Magistrate, Udaipur City (North), Udaipur dated 28. 10. 1986 by which the learned Munsif& Judicial Magistrate dismissed the application of the plaintiff for grant of temporary injunction.
(2.) THE facts necessary to be noticed for the disposal of this revision petition briefly stated are: that the plaintiff-non-petitioner Smt. Vishwa Vijay Singh was appointed as Assistant Teacher in the year 1970 by defendant-petitioner No. 1 Vidhya Bhawan Society, Fatehpura, Udaipur. She was confirmed as Assistant Teacher on 10. 8. 1973. However, in pursuance of the resolution or the recommendation of the Staff Selection Committee at its meeting held on 11. 9. 1984, she was appointed as Head Mistress of the Nursery School by the Administrator of the Vidhya Bhawan Society on a probation of one year from the date she joins. It was mentioned in the appointment order that one month's notice will be necessary in case of termination of service from either side during probation period. It was further mentioned in the order that she will be required to execute the agreement bond. It is alleged that her period of probation was further extended for one more year with effect from 26. 9. 1985 vide order dated December 4, 1985 of the defendant-petitioner No. 1. THE plaintiff-non-petitioner has contended that that period of probation came to end on 25. 9. 1986 and during this period, she worked with honesty and integrity and for improvement of the institution. As per Rules, she has become permanent on the expiry of this period. However, on 26. 9. 1986, at about 4. 30 PM, after duty hours were over, she was served with a letter that she has not been confirmed by the President of defendant-petitioner No. l and, therefore, she has been reverted back as a Second Grade Teacher. THE grade of Head Master/mistress is two grades up from the Grade of a Second Grade Teacher. According to the plaintiff-non-petitioner, it is reduction in the rank and it has been done without giving her show cause notice and thus, her rights have been infringed. She has further contended that the persons who have issued this order have no authority to pass such an order. According to her, the President and Secretary of defendant-petitioner No. 1 cannot pass such an order without getting its approval from the Working Committee of the defendant-petitioner No. 1 and, therefore, she brought the suit for declaration that the impugned order dated 26. 9. 1986 is illegal and ineffective as against the rights of the plaintiff. She has also claimed perpetual injunction against the defendants not to revert her from the post of Head Mistress of the Nursery School without following due and prescribed procedure of the law. She further sought a mandatory injunction that even if the defendants remove her from that post, she will be put back on that post. She has further claimed that although the defendant-petitioner No. 1 is a registered educational institute but as it is getting aid from the State Govt, under the Rules for Payment of Grand-in-Aid to non-Government Educational, Cultural and Physical Education Institutions in Rajasthan, 1963 (for short 'the Rules'), it has no right to remove her from the service without complying with the procedure prescribed by these Rules. Alongwith the suit, an application for grant of temporary injunction was also filed containing the same allegations. The learned trial court, after hearing both the parties, came to the conclusion that all the three necessary ingredients for grant of temporary injunction i. e. prima facie case, balance of convenience and irreparable injury do not exist in favour of the plaintiff-non-petitioner and, therefore, she is not entitled to any interim relief. Against this order of the learned trial court dated 28. 10. 1986, an appeal was preferred before the learned District Judge, Udaipur who transferred it for disposal to the learned Additional District Judge No. 1 Udaipur, who after hearing both the parties, decided the appeal and restrained the defendant-petitioners from interfering with the functioning of the plaintiff-non-petitioner as Head Mistress of the Nursery School in pursuance of its order dated 26. 9. 1986. Hence this revision. I have heard Mr. N. N. Mathur, learned counsel for the defendant-petitioners and Mr. Rajesh Balia, learned counsel for the plaintiff-non-petitioner and have carefully gone through the record of the case. It was contended by Mr. N. N. Mathur, learned counsel appearing for the petitioners that the learned first appellate court have gravely erred in accepting the appeal. According to him, if the trial court has refused the discretionary relief of injunction and has given its reasons for refusing the same, that order of the trial court cannot be set aside in appeal unless it is arbitrary, perverse or capricious or it has been given in disregard of sound principles or without considering all the relevant material on record. If the appellate court while disposing of the appeals sets aside the decision of the trial court given on an interlocutory application without dealing with the reasoning that has prevailed with the trial court then such a decision is perverse in the eye of law. In this connection, reliance was placed on Smt. Vimla Devi Vs. Jang Bahadur (1) and Girdharilal Vs. Mahadevi Sharma (2 ). In Smt. Vimla Devi's case (supra), a learned single Judge of this Court held that appellate court can interfere only where trial court's order is arbitrary or perverse or capricious or has been made in disregard of sound legal principles or without considering all the relevant material on record. In Girdhari's case (supra), a learned single Judge of this Court held that the appellate Court should be slow in upsetting a decision of a trial court in a matter relating to grant of temporary injunction unless the decision of the trial court is arbitrary, perverse or is not based on sound legal principles. It has further been held that when the appellate court does not apply its judicial mind on all the material brought on the record then in that case the approach of an appellate Court would be wrong and contrary to the well established principles laid down by the High Court, more so when the appellate Court does not deal with the reasoning that has prevailed with the trial Court and further when it does not apply its judicial mind on the materials placed on the record, and in such case, it will be presumed that the appellate court has committed a jurisdictional error and, therefore, a revision lies against such an order.
(3.) IT was also contended by Mr. N. N. Mathur, learned counsel for the defendant-petitioners that the learned first appellate court has taken into consideration the Printed performa of Appendix-IV, the form of agreement to be executed by the Heads of recognised aided institution, provided under the Rules, which was beyond his scope. He could only have considered the material that has been placed on record and could not have travelled beyond it. No reliance was placed on proforma of Appendtx-IV of the Rules before the trial court and, therefore, no additional evidence could have been looked into without taking recourse to Order 41, r. 27 CPC. On behalf of the petitioner, his affidavit was filed that no such agreement was executed in proforma of Appendix-IV of the Rules. In this respect, reliance was placed on a decision of this Court in Kusum Kumar Chowdhari Vs. Supra Films (3), wherein it has been held that the affidavits filed by the parties should be considered by the Court and no pro-tracted inquiry involving receipt of evidence in proof of facts should be made. Reliance was also placed on Smt. Vimla's case (supra), wherein it has been held that if the appellate court decides the appeal on the basis of the additional evidence, which did not form part of the record of the trial court, the order of the appellate court amounts to material irregularity. Mr. N. N. Mathur, learned counsel appearing for the petitioners has, therefore, submitted that this revision is maintainable. Mr. N. N. Mathur, learned counsel appearing for the defendant-petitioners then proceeded to argue the revision petition on merits and has contended that the defendant-petitioner No. 1 is a registered society for educational purposes It is true that the defendant-petitioner No. 1 is receiving aid from the Govt, of Rajasthan under the Rules but that does not make it a statutory body because it is not the product of a statute. Its Managing Committee also is not the product of the statute and hence, when it is not a statutory body, the contract of personal service cannot be specifically enforced by the plaintiff-non-peti-ticner. At best, if the plaintiff-non-petitioner becomes successful in her suit, she can claim damage or compensation but she is not entitled to be restored back to her original post because in matters of such personal service based on contract, no body can be thrust on the Management against its Will. In this respect, reliance has been placed on Vaish Degree College Vs. Lakshmi Narain (4), wherein it has been held as follows: "before an institution can be a statutory body, it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established. Here, a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not sufficient to clothe the institution with a statutory character. " It is an admitted case of the parties that defendant-petitioner No. 1 is not a statutory body. It is not the creation of any statute. Moreover, if it has adopted the Rules for the administration of the Institution, it does not become a statutory body created by or under the statute only on that account. Moreover, the Rules are also not statutory. They are non-statutory administrative Rules. These Rules have not been issued under any Act. They have also not been issued in exercise of the powers which are vested in the Govt, of Rajasthan. They are only adminis-trative instructions issued by the State Govt. It has been held by their Lordships of the Supreme Court in State of Maharashtra V. Lok Shikshan Sanstha (5) that the provisions of the Grant-in-aid Code are executive instructions and are in the nature of administrative instructions without any constitutional force. Thus, simply because the Rules have been adopted as guide-lines for the management of the Institution, it does not mean that they made the institution a statutory body. A similar view has been expressed by their Lordships of the Supreme Court in J. Tiwari vs. Jwala Devi Vidya Mandir (6), wherein it has been observed:- "the regulations of the University or the provisions of the Education Code framed by the State Govt may be applicable to the institution which is registered under the Societies Registration Act, 1860. And if the provisions thereof are violated by it, the University may be entitled to disaffiliate the institution and the Government may perhaps be entitled to withdraw the educational grant payable to the institution. That does not however, mean that the institution is a public or a statutory body. " In giving this decision, reliance was placed on Vaish Degree College's case (supra ). ;