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Regular Second Appeal No. 497 of 1956, decided on 12th December 1957, from the decree of the Court of Chaudhry Azam Ali, District Judge, Multan, dated the 6th October 1956.
Ss. 75 (1) & (3)‑Action described in S. 75 (1) is suit in respect of act purporting to be done under Act‑Limitation‑ 6 months next after accrual of cause of action.
O. VII, r. 1 (e) Plaintiff not tied down to date of accrual of cause of action mentioned in plaint‑Question one of law to be decided by Court from averments in plaint‑Pleadings.
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Erroneous admission on point of law‑Not binding on party making such admission‑Court should ascertain correct legal position.
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Replication, part of or supplement to plaint ‑Civil Procedure Code (V of 1908), O. VI, r. 17, O. VIII r. 9 and O. X I V , rr. 1 (5) & 3.
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Once limitation starts running, no subse quent event can stop or suspend it.
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Proposition that subsequent cause of action can arise only when the earlier has been either satisfied or discharged, wrong‑Fresh circumstance combined with old facts, which in themselves constitute completed cause of action may give rise to second and fresh cause of action‑Civil Procedure Code (V of 1908), S.20.
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Starting point‑-There is possibility of new starting point in certain circumstances‑Principle that as between dates o original decree and appellant decree, starting point would be date of original decree may apply to case under S. 75, West Punjab is development Act (XV of 1949), where it is shown that under system of law and procedure obtaining in T. D. A., appealable order of dismissal of servant stands exactly on same footing as decree of Civil Court.
Venkatari Appa Rao's Case A I R 1925 P C 105; Bassu Kaur v. Dhum Singh I L R (1889) 11 All. 47; Chandra Mani Saha v. Anarjan Bibi A I R 1934 P C 134 and Juscurn Boid v. Prithichand Lai A I R 1918 P C 151 ref.
S. 75 (3)‑Limitation for suit is six months next after accrual of cause of action‑-Dismissal of employee from service --Appeal against order of dismissal rejected‑Employee can file civil suit within six months from date of rejection of appeal.
S. 151‑Suit by employee of Thal Development Authority against order of dis missal from service, when his departmental appeal was pending-‑Court can stay suit pending disposal of departmental appeal.
S. 240‑Servants of That Development Authority are not members of Civil Service of Crown or holding civil post under Crown.
Ss. 17 & 75‑Illegal dismissal of employee of T. D. A.‑Civil suit competent.
There is no provision in the Thal Development Authority Act that the servants of the T. D A hold their offices during the pleasure of the Authority. The rights and liabilities of these servants are governed by the provisions of the Act and the statutory rules made thereunder. Ordinarily the relationship between an employer and an employee is governed by the law relating to master and servant; but where the relationship has been regulated by a statute or statutory rules the latter must govern it, and the law Courts are bound to grant redress where the rights of either party have been adversely affected in contravention of their provisions.
Venkata Rao v. Secretary of State for India in Council A I R 1937 P C 31 rel.
Mir Allah Bakhsh v. District Board Rawalpindi P L D 1951 Lah. 52 ref.
Muhammad Zafar for Appellant.
Muhammad Shafi for Respondent.
Dates of hearing: 27th May, 12th, 13th, 14th 18th and 20th June, 1957.
This second appeal arises out of a suit by the appellant for a declaration that his dismissal from the employment of the respondent, the Thal Develop ment Authority (hereinafter referred to as the T. D. A.), was illegal and that he was still in the respondent's service and was entitled to the pay and remuneration etc., of his post. He also prayed for an injunction restraining the defendant -respondent from preventing him from performing his duties and enjoying the pay, emoluments, etc. The prayer for injunction, however, was refused by the trial Court and the appellant has not agitated the matter either in this Court or in the lower appellate Court.
The events which led up to the institution of the appel lant's suit may be shortly stated. The appellant, who was a permanent Overseer in the T. D. A. and was drawing Rs. 120 a month as his pay, was suspended from service on the 25th of May 1953, by the order of the Chairman, dated the 18th of May 1953. It is admitted by the defendant that thereafter some secret inquiry was held against the plaintiff on the completion of which the appellant was served, on the 28th of April 1954, with a notice, dated the 19th of April 1954, from the Superintending Engineer, Construction Circle, T. D. A., terminating his services a month after the service of the notice. The reason for the termination of the plaintiff's service has not been disclosed to him as yet. The appellant Abdul Ghafoor appealed to the T. D. A. in accordance with the rules framed by the Provincial Government under the Thal Development Act of 1949 (hereinafter referred to as "the Act"). By an order dated the 26th of January 1955, the Chairman rejected the appeal and the order was communi cated to the appellant by means of a letter dated the 10th of February 1955. The appellant filed the present suit on the 16th of July 1955.
The defence in the suit would appear from the following issues framed by the trial Court:‑
(1) Whether it was essential to give a notice to the defendant under section 75 of the Thal Development Act
(2) If issue No. 1 is decided in affirmative, was a notice duly given by the plaintiff before the institution of the suit
(3) Whether the suit is time‑barred
(4) Whether the order dated 19th April 1954 of dismissal of the plaintiff was illegal, ultra vires and ineffective; and if so, with what effect
In his judgment dated the 15th of March 1956, Mr. Salah‑ud -Din Hanif, Senior Civil Judge, Muzaffargarh, answered the first issue in the affirmative and the remaining three in favour of the plaintiff and granted the plaintiff the declaration sought for by him. On appeal, the learned District Judge, Multan, while upholding the findings of the learned trial Court on the first and fourth issues, found the second and third issues against the plaintiff and, accepting the appeal, dismissed the suit.
The finding of the learned District judge on the second issue entirely ignores a series of recent rulings of this Court and is obviously wrong. The defects in the notice relied on by the defendant are merely formal and do not go to the root of the matter. The learned counsel for the respondent did not seriously attempt to support the finding of the learned District Judge, I, therefore, set it aside and affirm the finding of the learned trial judge.
The question of limitation was strenuously argued on both sides of the Bar at very great length. Admittedly, the provisions of subsection (3) of section 75 of the Act are applicable to the present suit. This subsection runs as follows:‑
"No action such as is described in subsection (1) shall, unless it is an action for the recovery of an immovable property or for a declaration of title thereto, be commenced other wise than within six months next after the accrual of the cause of action."
The action described in subsection (1) is a suit "in respect of an act purporting to be done under this Act". The present is such a suit and, therefore, the limitation for it would be six A months next after the accrual of the cause of action. In the second paragraph of the written statement it was pleaded that the suit was barred by limitation in view of the provisions contained in section 75 (3). It was not stated as to what was the starting point of limitation according to the defen dant. In the corresponding paragraph of the replication, the plaintiff replied:‑
"It is wrong that the suit is barred by time. The plaintiff had a right to appeal under section 17 of the Thal Development Act and, therefore, he made an appeal which the Chairman, Thal Development Authority rejected on the 26th of January 1955, as has been admitted by the defendant in para. 8 of his written statement. The plaintiff received intimation of the rejection of the appeal by means of the letter No. Thal /EA/CCL//3L17/3074‑75, the 10th of Feb 1955. The cause of action accrued to the plaints on the 10th of February 1955 and, therefore, the suit is within time."
In para. 10 of the plaint, however, the plaintiff had alleged that the cause of action accrued to him at Leiah, District Muzaffargarh, where the plaintiff was then posted, on the 28th of April 1954, the date on which the notice dispensing with his services was served on him. Even if the cause of action did accrue to the plaintiff on that date there can be no doubt that another cause of action arose to him a month afterwards when he was actually removed from service on the expiry of one month's period mentioned in the notice.
The learned lower appellate Court gave the following reasons for holding that the suit was barred by time
" * * * * In para. 10 of the plaint the plaintiff says, that the cause of action arose to the plaintiff at Leiah in the Muzaffargarh District, where the plaintiff was at the time the notice of discharge was issued, and it arose on the 28th of April 1954, the day when the notice of discharge was served upon the plaintiff.' There is, therefore, no getting over the fact that the cause of action arose to the plaintiff when he was discharged from service."
The impression of the learned judge that in every case a plaintiff is necessarily tied down to the date of the accrual of the cause of action mentioned in his plaint is obviously erroneous. The question as to when the cause of action accrued to the plaintiff in a given case is to determined by the Court from all the averments made by the plaintiff and is one of law. A party cannot be tied down to an erroneous a mission on a point of law. It is primarily the duty of the Court to ascertain the correct legal position. The learned judge appears to have entirely overlooked the finding of the learned trial Court on the question of limitation which merited his attention.
The learned trial Court rejected the contention that the plaintiff was bound by the date of the accrual of the cause of action mentioned by him in his plaint in the following words:‑
"The plaintiff had no doubt mentioned in the plaint as well as in the notice that the cause of action arose to him on the 28th of April 1954, when he received notice of dis missal but later on he rectified this error in his replication and alleged that the cause of action arose to him on the 26th of January 1955, the date of rejection of his appeal, or on 10th February 1955, when he received intimation about it. The replication is a part of the plaint."
The learned trial judge was quite right in treating the replication as a part of, or as a supplement to, the plaint. The provisions of Order VIII, rule 9, Order VI, rule 17 and Order XIV, rule 1 sub‑rule (5) and rule 3, Civil P. C. leave no room for doubting the correctness of this proposition. The Privy Council warned the Courts in the Indian sub continent that pleadings ought not to be strictly construed. The day when this warning would become obsolete is still nowhere in sight. The learned trial Court might also have added that in the plaint itself the plaintiff had stated in para. 8 that he had filed an appeal against the order of the Superintending Engineer but without avail. The only omission in the plaint was regarding the date of the rejection of thee appeal and that was made good in the replication. In the circumstances of this case it must be held that the plaintiff alleged the filing of his appeal and its rejection as parts of the cause of action in his favour.
Learned counsel for the respondent argued that the authorities on the subject establish two propositions beyond doubt, firstly, that once limitation starts running, no subse quent event can stop or suspend it; and, secondly, that a subsequent cause of action can arise only when the first has been either satisfied or discharged. There can be no doubt about the validity of the first proposition; but it has no applicability to the facts and circumstances of the present case. Here it is not the contention of the plaintiff that there was only one starting point of limitation and that the period of limitation was either extended by the plaintiff's depart mental appeal or was suspended when it was filed and started running again only after its rejection. The plaintiff contends that the cause of action accrued to him on the 15th of February 1955, when he received intimation of the rejection of his departmental appeal and limitation started running against him from that date. The second proposition is, how ever, manifestly wrong, There is no law or principle to support it. A fresh circumstance, or set of circumstances, combined with the old facts, which in themselves constitute a completed cause of action, may, in a certain given case, give rise to a second and a fresh cause of action.
On behalf of the respondent, the ruling of Their Lordships in Juscurn Boid v. Prithichand Lal (A I R 1918 P C 151) was much relied upon. A Patni Taluq had been sold for arrears of rent under the Bengal Patni Taluq Regulation, 1819, at the instance of the Zamindar. His suit for reversal of the sale was decreed on the 24th of August 1905, and the appeal to the High Court taken against the decree was dismissed on the 3rd of August 1906. The appeal before Their Lordships arose out of a suit by the purchaser to recover the purchase money with interest. Their Lordships held that the suit was barred by the provisions of Article 97 in the Second Schedule to the Limitation Act which lays down that the starting point of limitation in a suit "for money paid upon an existing consider ation which afterwards fails" is the "date of the failure". The passage in the judgment upon which the respondent relies runs:‑
"But by the decision in their * * * * suit** * * the sale was reversed in its entirety * * * * so that if the reversal of the sale is the cause of action, the only question is whether it should begin to run, as the plaint alleges, from the 3rd of August 1906, the date of the appellate decree, or as the defendant‑respondent contends, from the 24th of August 1905 the, date of the original decree * * * Both Courts ha held that the failure of consideration was at the date of the first Court's decree. Their Lordships feel no doubt that as between these two decrees this is the correct view, for whatever may be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal."
The defendant contends that similarly in this case limi tation started to run from the date of the Superintending Engineer's order and not from the date of dismissal of the plaintiff's appeal. The ruling may have had some appli cability to the present case if it could be shown that under the system of law and procedure obtaining in the T. D. A. an appealable order of dismissal stands exactly on the same footing as a decree of an Indian Court, It would also appear from the observations of Their Lordships which follow immediately the passage cited above that they did not intend to lay down that in every case the starting point must necessarily be the original decree reversing the sale. They said:‑
"To escape from this position and its consequence, a new starting point was suggested in the course of the argument here: it was contended that the period of limitation began to run when possession was lost.
"There may be circumstances in which a failure to get or retain possession may justly be regarded as the time from which the limitation period should run, but that is not the case here."
It will be noticed that Their Lordships did recognise the possibility of a new starting point in certain circumstances.
A subsequent ruling of the Privy Council in Chandra Mani Saha v. Anarjan Bibi (A I R 1934 P C 134) may be referred to show that Their Lordships of the Privy Council have not in every case regarded the date of the first order or decree as the only starting point of limitation and that they have clearly recognised that in certain circumstances the appellate decree or order may furnish a fresh cause of action. That case arose out of an application by an auction‑purchaser of immovable property for delivery of possession. Under Article 180 in the Second Schedule in the Limitation Act, the starting point for limitation of such an application is "when the sale becomes absolute". Order XXI rule sub‑rule 92 (1) lays down:‑
"Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute."
In Chandra Mani Saha's case, the judgment‑debtor made an application under Order XXI, rule 90 Civil P. C., to set aside the sale. On the 15th of April 1923, the Subordinate Judge rejected the application. On the 22nd of April 1924, he confirmed the sale in pursuance of Order XXI, rule 92. An appeal against the order of the Subordinate judge was filed on the 21st of July 1924 and dismissed by the High Court on the 17th of March 1927. The question was whether for the purpose of Article 180 the sale became absolute oil the 22nd of April 1924, as provided by Order XXI, rule 92. or on the 17th of March 1927, when the High Court dismissed the appeal. After stating that the sale did become absolute on the 22nd of April 1924, under Order XXI, rule 92, Civil P. C., Their Lordships observed:‑
"But the judgment‑debtors had a right of appeal under Order XLI, rule 1(t) against the orders of the Subordinate judge by which he disallowed their applications to set aside the sales. This right of appeal the judgment‑debtors exercised. Upon the hearing of the appeals, the High Court, by reason of the provisions of section 107 (2) of the Code, had the same powers as the Court of the Subordinate judge * * * * * *.
"Upon consideration of the sections and orders of the Code, Their Lordships are of opinion that in construing the meaning of the words 'when the sale becomes absolute' in Article 180, Limitation Act, regard must be had not only to the provisions of Order XXI, rule 92 (1) of the Schedule to the Civil P. C., but also to the other material sections and orders of the Code, including those which relate to appeals from orders made under Order XXI, rule 92 (1). The result is that where there is an appeal from an order of the Subordinate judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Article 180, Limitation Act, until the disposal of the appeal * * * * * *"
To my mind this case is a very clear authority for the pro position that where the language in a provision relating to limitation for a suit permits it regard should be had to the plaintiff's right of appeal against an order against which he feels aggrieved in determining the starting point of limitation; and that so far as possible the limitation provisions should not N be so construed as to deprive the aggrieved party of his right of appeal against an adverse order before resorting to a suit. These principles are fully applicable to the facts of the present case. Section 75 (3) of the Act does not require that a suit should be instituted from the date of any particular order or event. It merely lays down that the limitation shall be six months next after the accrual of the cause of action. A completed and final cause of action accrued to the plaintiff in this case when he finally lost all hope of continuing in service of the T. D. A. He might have, had he so preferred, foregone his right of departmental appeal and filed a suit in the Civil Court immediately after he was made to make over the charge of his office; or even on the receipt of the notice from the Superintending Engineer. He would undoubtedly have had a right to sue then; but a fresh P cause of action equally undoubtedly accrued to him when he was told by the final authority in the department that he shall no longer be retained in service or that his dismissal by the inferior authority must stand.
In the case of Bassu Kaur v. Dhum Singh (I L R 11 (1889) All. 47), the Privy Council gave yet another weighty reason for so construing the provisions of limitation statutes whenever possible as not to deprive a plaintiff of any other legal remedy which he might have besides a civil suit. There one Dhum Singh owed Rs. 33,359‑3‑6 to one Baru Mal. Dhum Singh executed an agreement in favour of Baru Mal to convey certain villages of his to Baru Mal's wife Bassu Kaur and stated therein that the debt which he owed to Baru Mal had been settled against the price of the villages, namely Rs. 55,000. Later on Baru Mal refused to complete the purchase on the ground that the deed was not in accordance with certain conditions for which he had executed the agreement. Thereupon Dhum Singh brought a suit for specific perfor mance of the contract and for the balance of Rs. 55,000 with interest after setting off the debt of Rs. 33,359‑3‑6. The suit was decreed by the Subordinate Judge on the 24th of February 1881 but was dismissed on appeal by the High Court on the 14th of March 1884. Baru Mal instituted a suit for the recovery of his debt on the 10th of September 1884. It was pleaded that the suit was barred by limitation. On behalf of Baru Mal it was contended that limitation began to run from the date of the decree of the High Court; but the High Court dismissed the suit as time barred on the ground that it was open to Baru Mal to have sued for his debt at any time that he liked, even before the institution of his suit for specific performance. Their Lordships, disagreeing with the High Court, observed:‑
"Baru Mal might have sued for his debt, but the utmost benefit that could have come to him from such a suit would have been to have it suspended or retained in Court till after decision of the appeal in the specific performance suit. Dhum Singh's defence would have been that the debt was paid by virtue of the contract and that defence must have prevailed if the suit were heard while the decree of 1881 still stood unreversed. It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not. And it would be a lamentable state of the law if it were found that a debtor who for years has been insisting that his creditor shall take payment in a particular mode, can, when it is decided that he cannot enforce that mode, turn round and say that the lapse of time had relieved him from paying at all.
"In Their Lordships' view, the decree of the High Court in 1884 brought about a new state of things, and imposed a new obligation on Dhum Singh".
This ruling was relied on by the Privy Council in Ven katari Appa Rao's case (A I R 1925 P C 105), long after the decision of duscurn Boid's case.
Similarly if the plaintiff in this case had brought his present suit after filing the departmental appeal but without waiting for its result, the Court would have had the power under section 151 of the Code of Civil Procedure to stay the suit pending the disposal of the departmental appeal. Again, this was a suit for a declaration and while exercising its discretion to grant or not to grant the decree prayed for, the Court might have taken into consideration the omission on the part of the plaintiff to seek the departmental remedy for his grievance or to wait for the final departmental decision of his case.
There can be no doubt that in the particular circumstances of this case a fresh cause of action accrued to the plaintiff on the 10th of February 1955 when he received notice of the dismissal of his appeal by the Chairman. If the dismissal from service by an appealable order of a subordinate authority could furnish a cause of action to the dismissed servant, it S would be wrong, in reason as well as on principles to hold that the final order of the final authority confirming the dis missal would not. That the plaintiff himself felt aggrieved against the T. D. A. after the appellate order and in fact treated it as the event giving him the right to sue in a law Court is evident from the fact that he gave notice as required by section 75 (1) of the Act after the appellate order and not on his original dismissal by the Superintending Engineer. The monstrous injustice of the contrary proposition would be manifest by examining the consequences which could have resulted from the institution of the present suit immediately after the first order. Should the plaintiff have also simulta neously filed a departmental appeal or not He had a legal right to that appeal under the Act. There was no law to deprive him of that right, and had there been one it would have been flagrantly unjust and harsh. If he had also filed an appeal simultaneously with the suit, either the proceedings in the Civil Court would have been stayed pending the decision of the appeal or they would have gone on. If the: appeal had succeeded, the suit would have turned out to be a vain litigation. It would also have resulted in much unneces sary expense to the parties and waste of much valuable time of the Court if the proceedings in the suit had not been stayed.
The appellant might also have contended that a cause of action accrued to him on the 10th of February 1955 on two other grounds. In the first place the appeal was wrongly disposed of by the Chairman, as under section 17 of the Act and Rule 11 of the T. D. A. Service Rules only the T. D. A. V has the power to deal with an appeal of an official whose monthly salary exceeds Rs. 100. It is admitted that at the time of his dismissal the appellant's salary was Rs. 120 a month. Thus the appellant can complain that his wrongful dismissal has been allowed to stand without a legal decision of the appeal against it. Again according to sections 17 and 19 of the Act and rule 10 (ii) of the T. D. A. Service Rules, no employee can be removed or dismissed from service except by an order in writing signed by the Chairman or an officer authorised in writing by the Chairman in this behalf. The appellant was dismissed by the Superintending Engineer. I gave Mr. Muhammad Shafi, learned counsel for the defendant -respondent, three opportunities to produce or prove any such authority in the Superintending Engineer from the Chairman; but he expressed his inability to do so‑the last time about ten days ago. Thus the order by the Superintending Engineer was a nullity. It is the order of the Chairman rejecting the appeal which alone can be treated as the first order of the appellants dismissal and the present suit was instituted within six months from the date of the intimation of that order to the appellant. In view, however, of the conclusion expressed in the preceding paragraph, it is unnecessary to decide either of these points.
At the hearing of the appeal, learned counsel for the respondent did not assail the finding of the Courts below on the 4th issue. It was only when I myself recalled the counsel a few days afterwards to clarify certain matters relating to the question of limitation that he raised two objections against the findings, namely, (1) that the appellant is not a Government servant and. therefore, section 240 (3) of the Government of India Act. 1935, is inapplicable to him; and (2) that no civil suit can lie for breach of, or non‑compliance with, any Service Rules. Neither of these contentions were raised in the Courts below, where the only contention of the defendant -respondent was that the plaintiff‑appellant could be removed from service by notice because he was only a probationer and not a permanent servant of the T. D. A. It was assumed throughout that if he was a permanent employee his dismissal was wrongful.
As regards the first contention, I am inclined to think that the language in the provisions of the Act makes it abundantly clear that the servants of the T. D. A. cannot be considered as members of a Civil Service of the Crown or holding any civil post under the Crown within the meaning of section 240 of the Government of India Act. But neither of the two lower Courts applied any provision of that Act to this case. The appellant's dismissal was held to be wrongful because of the provisions of sections 16 and 17 of the Act and the rules framed by the Provincial Government under the Act. Learned counsel for the respondent contended that in view of the ruling of this Court in Mir Allah Bakhsh v. District Board, Rawalpindi (P L D 1951 Lah. 52), mere non‑compliance with the statutory rules framed under the Act cannot give the appellant a right of suit. I cannot agree that Their Lordships intended to lay down such a proposition in Mir Allah Bakhsh's case. They have expressly based their observations upon the decision of the Privy Council in Venkata Rao v. Secretary of State for India in Council (A I R 1937 P C 31). In that case the Privy Council held that in view of the fact that the servants of the Crown hold their offices "during His Majesty's pleasure", mere non‑com pliance with Service Rules framed by the Secretary of State cannot afford the servants of the Crown cause for a civil suit. There is no provision in the Thal Development Authority Act that the servants of the T. D. A. hold their offices during the pleasure of the Authority. The rights and liabilities of these servants are governed by the provisions of the Act and the statutory rules made thereunder. Ordinarily the relationship between an employer and an employee is governed by the law relating to master and servant; but where the relationship has been regulated by a statute or statutory rules the latter must govern it, and the law Courts are bound to grant redress where the rights of either party have been adversely affected in contravention of their provisions. The finding of the lower Courts on the 4th issue must, therefore, stand.
I allow this appeal with costs and setting aside the judg ment and decree of the lower appellate Court, restore the decree of the trial Court.
K. M. A. Appeal allowed.
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