The scope of Section 115, C. P. C. and the interpretation of the proviso to Section 115(1), C. P. C. in relation to the maintainability of revision petitions.

D. P. MOHAPATRA, J.

( 1 ) THIS application under S. 115, Civil P. C. is directed against the order dated 31-10-1981 of the Subordinate Judge, Sundargarh in Money Suit No. 86/78, rejecting the petitioner's application under O. 11, R. 1, C. P. C. for leave to deliver interrogatories to the opposite party. Opposite party, Dalmia Institute of Scientific and Industrial Research, a Society registered under the Societies Registration Act, 1960, filed the above mentioned suit for recovery of Rs. 28,500/- with costs and interest from the petitioner. The facts pleaded in the plaint, short of unnecessary details, are that the defendant Dr. Ashok Kumar Tripathy was appointed by the opposite party as Principal Scientist (Ceramics) in its Research institute at Rajgangpur on a monthly consolidated salary of Rs. 2,000/- under appointment Letter No. RGDI dated May 1/14, 1974 and in pursuance thereof the petitioner entered into a service contract dated 16th May, 74 with the opposite party whereunder, inter alia, he agreed to serve the Society for a period from 16th May, 1974 to 31st Dec. , 1978; on condition that the first four months of service shall be regarded as the period of probation. Subsequently, on 9-12-1974, on the application of the petitioner his services were confirmed with effect from 16th Nov. , 1974. Under clause 4 of the contract it was agreed that the employee shall be liable to pay to the employer by way of liquidated damages a sum equivalent to twelve times the monthly salary last drawn, if he leaves the service of the employer before completion of the service period referred to in para 2 above or brings about a situation by misconduct, compelling the employer to terminate his service. The opposite party has further stated in the plaint that in course of his service the petitioner was given necessary training and was provided with facilities for research and encouragement in the shape of special reward of Rs. 2,500/- for his research work. In spite of the facilities offered to the petitioner he suddenly left the service by sending a letter of resignation on 28-2-1977 and requested the opposite party to relieve him immediately knowing fully well that he should not leave the service before expiry of the stipulated period. Thus, according to the opposite party, the petitioner committed a breach of the service contract. The petitioner was drawing a monthly salary of Rs. 2,375/- at the time of tendering his resignation. In these circumstances, the opposite party claimed a sum of Rs. 28,500/- towards liquidated damages as stipulated in the contract, though the loss incurred by the Society due to sudden and premature quitting of service by the petitioner is much more.

( 2 ) THE petitioner in his written statement denied the averments in the plaint. According to him, the plaintiff-Society is a fictitious one and has no existence at all; the alleged contract for service, if any, is against public policy and is void under the provisions of S. 23 of the Contract Act. Indeed, the plaintiff-Society was created by Orissa Cement Ltd. in order to divert its excess profit to it and thereby to get tax exemption showing donation for Scientific research. The petitioner further alleged that the Orissa Cement Ltd. has evaded payment of tax of substantial sums by this process. In fact, the defendant-petitioner was in service of the Orissa Cement Ltd. and when the fictitious organisation in the name and style of the plaintiff was created the name of this petitioner along with many other employees of the Orissa Cement Ltd. was lent to the Society just to prove its existence. In reality the petitioner contained his service under the Orissa Cement Ltd. as before. According to the petitioner, he was compelled to give up his service on health grounds since he suffered from a disease which was certified by the doctor to be occupational.

( 3 ) ON the above pleadings of the parties the trial court framed 9 issues on 17-12-1970 of which those are relevant