AFR HIGH COURT OF CHHATTISGARH, BILASPUR SA No. 33 of 2021 Reserved on : 30.10.2023 Delivered on : 02.02.2024

1. State Of Chhattisgarh Through The Collector, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh

2. The Divisional Education Officer Durg, Tahsil And District Durg Chhattisgarh.

3. The District Eudcation Officer Rajnandgaon, Tahsil And District Rajnandgaon Chhattisgarh.

---- Appellants Versus • Ramavtar Goyal S/o Buddhulal Goyal Aged About 79 Years R/o Ward No. 38, Rajnandgaon, Tahsil And District Rajnandgaon Chhattisgarh. (Plaintiff), District : Rajnandgaon, Chhattisgarh ---- Respondent For Appellants : Mr. Avinash K. Mishra, Govt. Advocate For Res. : Mr. U.N. Awasthi, Sr. Advocate with Mr.

Himanshu Pandey, Advocate.

Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. JUDGMENT

1. This appeal has been preferred by the appellants/defendants under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dated 18.02.2020 passed by the learned District Judge, Rajnandgaon (C.G.) in Civil Appeal No.91-A/2019, whereby the lower appellate Court has allowed the appeal filed by the respondent/ plaintiff and set aside the judgment and decree dated 10.07.1987 passed by the Civil Judge, Class-I, Rajnandgaon (C.G.) in Civil Suit No. 183A/1986 whereby the suit filed by the plaintiff has been decreed in defendant's favour.

2. The parties to this appeal shall be referred to hereinafter as per their description in the civil suit.

3. This appeal has been admitted by this Court on 05.03.2021 on the following substantial questions of law:-

(i) Whether the First Appellate Court is justified in holding that the suit is within limitation by recording a finding perverse to be record?

(ii) Whether the First Appellate Court is justified in holding that the suit is maintainable without service of notice under Section 80 of the CPC by recording a finding perverse to the record?

(iii) Whether the First Appellate Court is justified in admitting additional evidence under Order 41 Rule 27 of CPC by recording a finding perverse to the record?

4. Briefly stated the facts of the case are that plaintiff/respondent filed a civil suit for declaration that order dated 02.09.1975 issued by defendant No. 3 be declared as null and void and he be reinstated with all service benefits including promotion, seniority contending that he was working as Teacher under the Government of Madhya Pradesh since 18.09.1961. Defendant No. 3 District Education Officer, Rajnandgaon dismissed him from the service on 05.06.1975. Later on this order was revoked and he was taken back in the service and again he was dismissed from service on 02.09.1975. This order was confirmed by the appellant No. 2 Divisional Education Officer, Durg vide order dated 16.07.1977. The plaintiff further stated that he made representation to the higher authorities against his dismissal from service, but no action has been taken. Thereafter on 03.07.1980 the plaintiff sent notice under Section 80 of the Civil Procedure Code, but the appellants did not take any action on the notice which has necessitated him to file a civil suit on 15.07.1980. The plaintiff has also sought leave to file suit as per Section 80(2) of the CPC contending that the plaintiff has submitted representation to the defendant demanding justice but no justice has been done with him, therefore, he has sent notice on 03.07.1980. It has also been contended that if the suit is filed after 60 days then it may be time barred, as such he is claiming leave to file suit looking to the exigency and seriousness of the matter.

5. The learned Trial Court granted the leave by registering the suit on 16.07.1980 and also issued notice to the defendant. The plaintiff has also filed an application under Order 39 Rule 1 CPC for grant of interim injunction of stay of order of dismissal from service. The defendant has filed reply to the said applicatio