Manzoor Ul Haque v. Bombay Mercantile Co Operative Bank Ltd & Anr

RAJIV SAHAI ENDLAW, J. SEPTEMBER 28, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 28th September, 2018. + RSA 144/2018 & CM No.40240/2018 (for condonation of 20 days delay in re-filing the appeal) MANZOOR UL HAQUE ..... Appellant Through: Mr. Anis Ahmed and Mr. Rizwan Ahmed, Advs. Versus BOMBAY MERCANTILE CO-OPERATIVE BANK LTD & ANR ..... Respondents Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.40239/2018 (for exemption). 1. Allowed, subject to just exceptions. 2. The application stands disposed of. RSA 144/2018 & CM No.40240/2018 (for condonation of 20 days delay in refiling the appeal). 3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 3rd April, 2018 in RCA No.1220/16 of the Court of Senior Civil Judge (Central)] of dismissal of First Appeal under Section 96 of the CPC filed by the appellant against the judgment and decree [dated 20th October, 2014 in Civil Suit No.444/13/05 (Unique ID No.02401C0916092005) of the Court of Civil Judge-07 (Central)] of dismissal of the suit filed by the appellant/plaintiff against the two respondents/defendants i.e. Bombay Mercantile Co- operative Bank Ltd. and its Deputy General Manager at New Delhi. 4. The appeal is accompanied with an application for condonation of delay in re-filing of 20 days. However the question of consideration of the said application will arise only if any merit were to be found in the appeal. This being a Second Appeal, is not to be admitted as a matter of course and as per dicta of the Supreme Court in Surat Singh Vs. Siri Bhagwan (2018) 4 SCC 562 and Vijay Arjun Bhagat Vs. Nana Laxman Tapkire 2018 SCC OnLine SC 518, notice thereof has to be issued only on the High Court satisfying that the appeal entails a substantial question of law and after framing the said substantial question of law. 5. The counsel for the appellant/plaintiff has been heard and the copies of the Trial Court record annexed perused. 6. The suit, from which this appeal arises, was filed by the appellant/plaintiff for (i) declaration that the letter dated 11th June, 2005 issued by the respondent/defendant no.1 dismissing the appellant/plaintiff from service of the respondent/defendant no.1 was illegal, void ab initio and for setting aside of the same; and, (ii) consequential relief of mandatory injunction directing the respondents/defendants to reinstate the appellant/plaintiff in service as an officer of the respondent/defendant no.1 with all service benefits including the payment of salary for the intervening period and continuity of service and maintenance of seniority, promotion etc. as per rules. 7. The respondents/defendants contested the suit and on the pleadings of the parties the following issues were framed in the suit on 23rd January, 2006:- "1) Whether the suit is hit by the provisions of section 115 of Multi State Cooperative Societies Act, 2002 as per preliminary objection No.1? OPD 2) Whether this court does not have the jurisdiction to entertain the matter and plaint is liable to be returned as per the preliminary objection No.2? 3) Whether the suit is without cause of action as per the preliminary objection No.3? OPD 4) Whether the suit is bad for mis-joinder of the parties as per preliminary objection No.4? OPD 5) Whether the plaintiff is entitled for declaration as prayed for? OPP 6) Whether the plaintiff is entitled for mandatory injunction as prayed for? OPP 7) Relief." 8. The Suit Court, on the basis of evidence led, decided each of the aforesaid issues in favour of the respondents/defendants and against the appellant/plaintiff and resultantly dismissed the suit. 9. The First Appellate Court, in the first seven pages of its judgment, reproduced paragraphs, perhaps from the memorandum of the First Appeal and has in the remaining pages of its judgment, merely agreed with the reasons given by the Suit Court for dismissal of the Suit. 10. The counsel for the appellant/plaintiff, before me has argue