Court No. - 37
Case :- SECOND APPEAL No. - 208 of 2011 Appellant :- State Of U.P., Madhyamik Shiksha Parishad Respondent :- Subhash Chandra And Another Counsel for Appellant :- V.K. Nagaich,S.C. Counsel for Respondent :- Raj Kumar Dhama
Hon'ble Ved Prakash Vaish,J.
1. Heard Sri V.K. Nagaich, learned Standing counsel for the appellant and Sri Raj Kumar Dhama, learned counsel for the respondent no.1.
2. This is an appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.') filed by the appellant (defendant in the suit) against the impugned judgment and decree dated 20.8.2009 passed by learned District Judge, Baghpat in Civil Appeal No.16 of 2008 whereby the appeal filed by the appellant against the judgment and decree dated 7.4.2008 passed by learned Civil Judge (J.D.), Baghpat, was allowed.
3. The brief facts as set out in the present appeal are that the respondent no.1 (plaintiff in the suit) filed a suit for mandatory injunction for issuing a direction to the appellant to issue mark-sheet of Intermediate Examination 1983 (roll no.429071) declaring his result as passed, after adding the marks of Geography II Paper after evaluation of the answer book. It was alleged by the respondent no.1 that the mark-sheet given to him showing therein subject of History instead of Geography whereas he had not filled subject of History in his examination form and he had not appeared in the exam of History. In fact, he had filled Geography and he had appeared in the written examination of Geography. On the oral request and the application in writing of the respondent no.1, the appellant issued the mark-sheet. On issuing the mark- sheet, the respondent no.1 was surprised that he was shown as absent in the II Paper of Geography, in the I Paper of Geography, the respondent no.1 was given 17 marks in written examination and 15 marks in the practical paper and he was declared failed. The respondent no.1 requested the appellant that he appeared in the examination of II Paper of Geography but he was wrongly shown as absent. Hence, the respondent no.1 filed suit for mandatory injunction.
4. The suit was contested by the appellant by filing written statement. The appellant stated that the respondent no.1 did not appear in the II Paper of Geography.
5. After considering the pleadings of the parties and hearing both the parties, learned Civil Judge, (J.D.), Baghpat dismissed the suit of the respondent no.1 vide judgment and decree dated 7.4.2008.
6. Against the said judgment and decree, the respondent no.1 filed an appeal bearing Civil Appeal No.16 of 2008. The said appeal was allowed by learned District Judge, Baghpat vide judgment and decree dated 20.8.2009 and the appellant was directed to evaluate the answer sheet of the respondent no.1, as per rules.
7. Feeling aggrieved by the said judgment and decree, the appellant/defendant no.1 has preferred the present second appeal.
8. On 29.5.2018, learned Standing counsel for the appellant submitted that the matter was placed before the Secretary, Madhyamik Shiksha Parishad, U.P., Allahabad and decision was taken by the Secretary and sought time for filing copy of the said decision.
9. Sri V.K. Nagaich, learned Standing counsel for the appellant submits that case of the respondent no.1 has been considered in detail by the Secretary of Madhyamik Shiksha Parishad, U.P., Allahabad and on 28.5.2018, it has been decided that the candidate (respondent no.1) be treated as appeared in the II Paper of Geography and he be awarded 17 marks in the II Paper of Geography on the basis of marks obtained by him in the I Paper of Geography and the respondent no.1 will be declared as passed. Learned Standing counsel for the appellant also submits that copy of the decision taken by the Secretary on 28.5.2018, has been filed alongwith affidavit dated 30.5.2018 of Smt. Neena Srivastava, Secretary of Madhyamik Shiksha Parishad, U.P., Allahabad.
10. Sri R.K. Dhama, learned counsel for the respondent no.1 submits that he has received copy of the affidavit of the Secretary and copy of letter dated 28.5.2018 issued by the Secretary and the respondent no.1 is satisfied with the same. Learned counsel for the respondent no.1 also submits that he has mentioned on the application bearing Civil Misc. Application No.5 of 2018 which has been filed alongwith the said affidavit that he has no objection, if the appeal is disposed of in terms of the affidavit filed by Mrs. Neena Srivastava, Secretary of Madhyamik Shiksha Parishad, U.P., Allahabad.
11. Learned counsel for both the parties submit that the appeal may be disposed of in terms of decision of the Secretary of Madhyamik Shikhsa Parishad, U.P., Allahabad on 28.5.2018. The affidavit of Secretary and copy of the decision dated 28.5.2018 are taken on record. Sri V.K. Nagaich, learned Standing counsel for the appellant submits that in view of the decision taken by the Secretary, a fresh mark-sheet will be issued to the respondent no.1 by 15th July, 2018.
12. In view of the submissions made by learned counsel for both the parties, the present appeal is disposed of.
The Civil Misc. Stay Application No.38374 of 2010 is dismissed as infructuous.
(Ved Prakash Vaish, J.) Order Date :- 31.5.2018 Vivek Kr.