IMPORTANT POINTS
Not taken before trial court, cannot be taken before Supreme Court.
There would be no infirmity in High Court passing order without framing substantial question of law in second appeal concluding that no substantial question of law is involved.
Power of civil court to pass orders in absence of written statement under Order VIII Rule 10 is not to be exercised mechanically.

Judgment

Prafulla C. Pant, J.

This appeal is directed against order dated 18.12.2013, passed by the High Court of Gujarat in Second Appeal No. 172 of 2013 whereby said Court has dismissed the appeal upholding the judgment and decree passed by the first appellate court and the trial court.

2. We have heard learned counsel for the parties and perused the papers on record.

3. Brief facts giving rise to this appeal are that respondent G.C. Pandya was Deputy Engineer (civil) with the appellant Gujarat Maritime Board. He was charge-sheeted for certain irregularities allegedly committed by him during the period 1982-1984, due to which the appellant suffered huge losses. In said enquiry the plaintiff/respondent G.C. Pandya was held guilty and awarded punishment of “censure” on 26.6.2002. He was superannuated on 30.6.2002 from service as Superintending Engineer. He (respondent) instituted Civil Suit No. 569 of 2002 before Civil Judge, Porbandar, for declaration that the departmental enquiry held against him and punishment awarded are illegal. The plaintiff further sought his promotion with effect from 1.1.2002. It is pleaded in the plaint that the departmental enquiry was purposely kept pending with a motive to deny promotion to the plaintiff. It was alleged by the plaintiff that the allegations in the charge sheet were false, and the enquiry was initiated to allow promotion of juniors to the plaintiff.

4. Strangely, though the defendant Gujarat Maritime Board (present appellant) was served and represented through its counsel, but it did not file any written statement contradicting the facts alleged in the plaint.

5. Since no written statement was filed by the defendant/appellant, there was no question of framing issues in the suit, and judgment could have been pronounced under Order VIII Rule 10 of the Code of Civil Procedure, 1908 (for short “C.P.C.”). However, the trial court formulated the questions to be decided in the suit as under:-

“(I) Whether the plaintiff establishes that, the charge sheet issued against him and thereafter the order of the departmental inquiry and of the punishment is illegal, unconstitutional and required to be rejected?

(II) Whether the plaintiff establishes that the act of the defendant preventing the plaintiff from promotion on the post of Chief Engineer is illegal, unconstitutional and requires to be rejected?

(III) Whether the plaintiff establishes that, by treating the promotion with effect from 1/1/2002 the plaintiff is entitled and rightful to avail all the rights of the said post?

(IV) Whether the plaintiff is entitled for the prayer sought for?”

6. The trial court considered the deposition of plaintiff G.C. Pandya and the documentary evidence Ex. 14 to Ex. 25, and answered each question discussing the evidence on record. Submissions of the learned counsel for the parties were considered and it is only thereafter, the trial court (2nd Additional Senior Civil Judge, Porbandar) passed the judgment and decree dated 7.1.2009 in the suit.

7. Aggrieved by said judgment and decree, the defendant (present appellant) filed Regular Civil Appeal No. 95 of 2009 before the District Judge, Porbandar. After hearing the parties, said Regular Civil Appeal was dismissed by the Additional District Judge, Porbandar, vide judgment and order dated 29.9.2012. The first appellate court framed points of determination and thereafter decided the appeal concurring with the trial court.

8. The defendant (present appellant) thereafter, challenged judgment and decree passed by first appellate court before the High Court, which was registered as Second Appeal No. 172 of 2013. The High Court dismissed the Second Appeal. Hence, this appeal before us through special leave.

9. Learned counsel for the appellant argued before us that no substantial question of law was framed by the High Court, as such, the impugned order passed by the High Court is liable to be set aside. It is further contended that the plaintiff had not completed three years of se