The petitioner/third party has filed this revision petition as against the order dated 31.10.2008 in E.A.No.4448 of 2006 in E.P.No.1593 of 2005 in O.S.No.6016 of 2001 passed by the learned IX Assistant Judge, City Civil Court, Chennai in allowing the application filed under Section 151 of Civil Procedure Code by the first respondent/ applicant/decree holder to direct the revision petitioner/ 3rd respondent to afford necessary facility and permission in regard to the conduct of election in compliance with the orders in E.P.No.1593 of 2005 dated 29.08.2005.
2.The Executing Court, while passing orders in E.A.No.4448 of 2006, has inter alia opined that '... The Decree was not set aside, on that ground it is executable. The decree is still in force in respect of the other office bearers of the Association. The General Manager is not conducting the election. He has to afford facility and permission. The D1 to D4 filed appeal before the Principal Judge against the decree and the same was dismissed. Hence the decree is still in force. Hence in the interest of justice, this petition has to be allowed and resultantly, allowed the application.'
3.The learned counsel for the revision petitioner/third party urges before this Court that the impugned order of the Executing Court dated 31.10.2008 in E.A.No.4448 of 2006 in E.P.No.1593 of 2005 in O.S.No.6016 of 2001 is against law and the same is legally unsustainable and the said order has been passed without considering any of the contentions raised and further the Executing Court has committed an error in ignoring an important fact that the relief projected in E.A.No.4448 of 2006 is beyond the ambit and scope of the decree obtained and added further, the revision petitioner/third party is not a party to the suit or the decree and therefore, the revision petitioner/third party is not bound by the tenor of the decree and moreover, the first respondent (applicant in E.A.No.4448 of 2006) is endeavouring to legitimise the unrecognised association and its office bearers who have no locus as far as the Railways is concerned and as a matter of fact, the Southern Railway Protection Force Members Association to which the first respondent/applicant seeks to conduct elections cannot function independently in that name and that the Association ceased to exist and its registration has lapsed due to its non-functioning on and from 25.9.1985 and the registration has been cancelled as defunct under Section 44(4) of the Tamil Nadu Cooperative Societies Act, 1975 and only the All India Railway Protection Force Association is recognised by Railway Board, for all the Zonal Railways and Railway Protection Force and also that as per Order XXVII Rule 2 of the First Schedule to Civil Procedure Code, the Central Government has authorised the office specified in the schedule to act for and on behalf of the Union of India in respect of judicial proceedings pertaining to the Railway administration and the revision petitioner/third respondent is the General Manager, Southern Railway and he is to act only in his capacity as Zonal Head of the Southern Railway and further the Principal Head of the Department, the Chief Security Commissioner is legally competent to represent the Railway administration and this being the factual position, the observation of the Executing Court that 'the Chief Security Commissioner has not been authorised by the General Manager who has filed the counter is not a valid one in the eye of law inasmuch as the order of the Railway Board, New Delhi dated 4.6.1992 in RBE No.92/92 No.E(G) 82 LL2/2(B) speaks of the Central Governments authorisation authorising the Chief Security Commissioner of the Railways to act for and on behalf of the Union of India in respect of any judicial proceedings relating to Railway administration and this vital fact has not been taken note of by the Executing Court which has resulted in miscarriage of justice and in short, the Executing Court has not considered the contentions put forward by the revision petitioner/3rd respondent while dealing with the E.A.No.4448 of 2006 and therefore, prays for allowing the civil revision petition to prevent an aberration of justice.
4.In response, the learned counsel for the first respondent/applicant supports the order of the Executing Court passed in E.A.No.4448 of 2006 and vehemently contends that even though the revision petitioner/3rd respondent has not a party to the decree, he has been added subsequently as a party to the execution proceedings and the revision petitioner/third party after all is to afford facility and permission in regard to the conduct of election in compliance with the orders passed in E.P.No.1593 of 2005 dated 29.08.2005 and since the revision petitioner/third party is not conducting the election and when the decree passed in the main suit is very much alive and in force. The Executing Court has taken note of the entire gamut of the matter in a proper perspective and has allowed the Execution Application E.A.No.4448 of 2006 on merits and as such, this Court at this stage sitting in revision may not interfere with the orders passed by the Executing Court in E.A.No.4448 of 2006 and ultimately prays for dismissal of the civil revision petition.
5.This Court has heard the learned counsel appearing for the parties and noticed their contentions.
6.It is to be pointed out that in the judgment and decree made in O.S.No.6016 of 2001 on the file of the learned IV Assistant Judge, City Civil Court, Chennai, the revision petitioner/third party is not a party to the proceedings therein. A perusal of the judgment in O.S.No.6016 of 2001 dated 30.01.2004 shows that the defendants 1 to 5 therein have remained absent and they have been set exparte and the suit for declaration and permanent injunction has been decreed exparte. In the said judgment, it is inter alia mentioned that 'the Election's to the Association should be conducted as per the Registered Old By Law of the Association etc.' Pursuant to the decree passed in O.S.No.6016 of 2001, the first respondent/decree holder has filed E.P.No.1593 of 2005 praying for the assistance of the Court in regard to the conduct of the election as per the Old By Laws of the Association by way of direction under Order 21 Rule 32 (5) of Civil Procedure Code.
7.It is useful to refer to the averment in E.A.No.4448 of 2006 filed by the first respondent/applicant/decree holder wherein it is among other things averred that 'this Hon'ble Court was pleased to issue direction by order dated 23.02.2006 by extending time to conduct the election by another 6 months in accordance with the old bye-laws of the Zonal Sothern Railway Protection Force Members Association and that in the execution proceedings, General Manager, Southern Railway is not a party and unless the General Manager, Southern Railway grants permission and facility to him to proceed with the election is not in a position to comply with the direction of the Court and therefore, seeks for an order in directing the revision petitioner/third party viz., General Manager, Southern Railway, Chennai-600 003 to afford necessary facility and permission to him to conduct the election in compliance with the orders of this Court in E.P.No.1593 of 2005 dated 29.08.2005.
8.In the detailed counter filed by the revision petitioner/3rd respondent, it is among other things mentioned that 'Respondents 2 and 3 are not recognised office bearers in so far as the Railways is concerned and as such, a Railway administration is not liable to render any assistance for the conduct of elections more so when the Railway administration is not a party to any of the proceedings and is not bound by the decree and only the All India Railway Protection Force Association is recognised by the Railway Administration and the letter of the General Manager, Southern Railway dated 17.11.2005 does not recognise the said Association but only states that the Chief Security Commissioner on representation will take a decision within the frame work, being the rules and the guidelines issued by the Railway Board etc. and since the Railway administration is not a party to the original suit O.S.No.6016 of 2001, it is not bound by the decree passed and as a matter of fact, the relief prayed for in the execution proceedings is beyond the purview of the suit itself and the Executing Court cannot go behind the tenor and spirit of the decree and therefore, the Execution Application E.A.No.4448 of 2006 filed by the first respondent/applicant/decree holder is not maintainable and deserves to be dismissed.
9.Continuing further, the revision petitioner/3rd respondent has also filed additional counter before the Executing Court, it is among other things mentioned that in terms of the letter issued by the Railway Board dated 11.8.1999 there shall be only one All India Railway Board Protection Force Association, consisting of all the Zonal Railways and the Railway Protection Special Force for the purpose of granting sanction by the authority concerned as per the Rule 115 of the Railway Protection Force Rules, 1987 etc. and at any rate the directions sought for in the Execution Application E.A.No.4448 of 2006 are very general in nature and the same cannot be maintained in respect of the Southern Railway Protection Force Members Association, which is not recognised by the Railway Board and the first respondent/decree holder by seeking directions for assistance to conduct the elections, he seeks to make the railways recognise the Association and himself as the office bearer, which cannot be done and therefore, prays for dismissal of the Execution Application.
10.Earlier, the civil revision petitioner/third party has filed C.R.P.NPD.No.538 of 2007 before this Court and by means of an order dated 21.6.2007, this Court in para 6 has observed the following:
"Admittedly, the revision petitioner who was the third party, was shown as the third respondent in E.A.No.4448/2006. He was neither a party in the E.P. pending nor a party in the suit. He was shown as third party even in the said application. It is also true that the petitioner herein was set ex-parte; but, there was a direction given to afford necessary facility and permission to the petitioner therein, who is the first respondent herein, to conduct the election in compliance of the orders of that Court in the E.P. referred to above. Once it is brought to the notice of the Court that the revision petitioner was neither a party to the suit nor a party to the execution proceedings, an opportunity should be given to them to put forth their plea. In such circumstances, without going to the merits or otherwise of the rival contentions put forth, this Court is of the considered opinion that the order of the lower Court issuing a direction to the petitioner, has got to be set aside. Accordingly, it is set aside. An opportunity should be given to the petitioner herein to file their counter. Thereafter, the lower Court will consider the same and pass suitable orders on merits and in accordance with law on that application and consequently, allowed the civil revision petition without costs."
11.The learned counsel for the revision petitioner/3rd respondent submits that in E.A.No.4448 of 2006 the revision petitioner herein has submitted his written submissions and the same has not been adverted to or even considered by the Executing Court while passing orders in E.A.No.4448 of 2006 which has caused grave injustice to the revision petitioner.
12.However, the learned counsel for the first respondent submits that the General Manager of the Southern Railway, Chennai, by its letter dated 10/15.2.99, has informed the General Secretary of the Ad Hoc Body RPF Members Association, Southern Railway, Chennai that consequent to the Railway Board's decision through conveys Railway Board's letter No.92/Sec.(Spl.)/6/3/Pt. dated 15.12.1998 treating paras 13,15(a), 15(b), and 15(c) of D.O. Letter No.84/DG/RPF/AF/Conf. dated 20.8.85 as withdrawn, this office letter of even No. dated 25.9.1985 directing the RPF Association to cease to exist is hereby withdrawn and therefore, has requested him to form regular bodies of the Association before 2.5.99 under the provisions of the constitution of the RPF Members Association, Southern Railway in consonance with the conditions for recognition issued by the General Manager and further that by means of letter dated 12.05.2000 from the IG/Head Quarters, New Delhi addressed to the General Manager, All Indian Railways, the Facilities like Office accommodation where available, Railway Telephone in office etc. have been now decided to allow the same to All India RPF Association and the Zonal RPF/RPSF Associations etc. and therefore, it cannot be said that the RPF Zonal Southern Railway Protection Force Members Association is not recognised by the Railways and more so, the Chief Security Commissioner, Railway Protection Force, Southern Railway cannot take a different stand than that of the higher authorities of the Railways and therefore, one cannot attach much importance to the stand taken by the Chief Security Commissioner, Railway Protection Force of Southern Railway in the counter and additional counter filed before the Executing Court in E.A.No.4448 of 2006.
13.It is to be pointed out that as per Order 27 Rule 2 of Civil Procedure Code enjoins that 'persons being ex-officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under this code may be made or done on behalf of the Government.
14.In the instant case on hand, the Government of India /Bharat Sarkar Ministry of Railways/Rail Mantralaya (Railway Board) in proceedings No.E(G)82 LL2/2(B) RBE No.92/92 dated 4.6.92 has issued an order stating that the Central Government has authorised the Chief Security Commissioner of the Railways in Serial No.20 to act for and on behalf of the Union of India in respect of any judicial proceedings relating to a Railway administration and therefore, the observation of the Executing Court in E.A.No.4448 of 2006, in its order dated 31.10.2008 to the effect that the Chief Security Commissioner, RPF, Southern Railway who has filed the counter, has not filed any authorisation from the General Manager, is clearly unsustainable, in the considered opinion of this Court. Furthermore, in the decision in Gupta V. Union AIR 1970 A & N at page 35 wherein it is observed that 'Notification by the Government authorising Executing Engineers can bring them within Order 27 Rule 2 of Civil Procedure Code as recognised agents.'
15.Admittedly, the revision petitioner/3rd respondent is not a party to the suit, decree or execution proceedings and only in the Execution Application the revision petitioner has been shown as a third respondent/third party. Furthermore, in C.R.P.No.303 of 2001 this Court, by its order dated 21.03.2001, has passed orders dismissing the Civil Revision Petition but has given the liberty to the petitioner therein viz., K.S.V.Devanathan to implead the persons who have been appointed as ad-hoc members to conduct the election and initiate such proceedings that are available to them in law. In the said civil revision petition, the present civil revision petitioner viz., General Manager, Southern Railways, Chennai-3 and Chief Security Commissioner, Railway Protection Force, Southern Railway, Chennai are shown as respondents.
16.As per
Section 43 of the Indian Evidence Act, a Judgment delivered by a Court of Law in respect of judicial proceedings is binding between the inter se parties. Admittedly, the revision petitioner/3rd respondent is not a party to the suit in main O.S.No.6016 of 2001. However, in law, a judgment not inter parties is admissible in evidence in certain circumstances and in certain cases, if the existence of such judgment is a relevant fact or fact in issue, in the considered opinion of this Court. In short,
Section 43 of the Indian Evidence Act expressly contemplates cases in which judgments could be admissible under other Sections of the Act, which are not admissible under
Sections 40,41 and
42.17.Be that as it may, on a careful consideration of respective contentions and taking note of the divergent stand taken by the parties and on going through the order passed by the Executing Court in E.A.No.4448 of 2006, this Court is of the considered view that the said order has not dealt with the contentions put forward by the revision petitioner/3rd respondent in E.A. in the form of counter and additional counter in a qualitative and quantitative manner and in short, the order of the Executing Court in E.A.No.4448 of 2006 is bereft and devoid of material particulars in regard to the stand taken by the revision petitioner and therefore, the said order is not a reasoned one and in short, the said order does not have the 'appearance of justice', in the considered opinion of this Court and furthermore, it is a less speaking order and the same is not a just order to the revision petitioner/3rd respondent who has been affected by the said order and viewed in that perspective, without dwelling deep into the merits of the matter, this Court set aside the order passed in E.A.No.4448 of 2006 by the Executing Court and allows the civil revision petition in furtherance of substantial cause of justice.
18.In the result, the Civil Revision Petition is allowed. The order passed by the Executing Court in E.A.No.4448 of 2006 is set aside. The Executing Court is directed to deal with the E.A. afresh after considering the stand taken by both parties especially meeting out the counter averments and the additional counter to E.A.No.4448 of 2006 filed by the revision petitioner and to pass a reasoned speaking order on merits in a quantitative and qualitative term in dispassionate manner specifying the process of reasoning in threadbare, uninfluenced with any of the observations made by this Court in this revision and to dispose of the same in any event within a period of three weeks from the date of receipt of copy of this order and to report compliance to this Court without fail. Consequently, connected miscellaneous petition is closed.