ivil Appeal No 207 of 1984
From the Judgment and Order dated 123
1982 of the Madhya Pradesh High Court in Misc Civil Case No 539 of 1981
Ranjit Kumar and Subhash Sharma for the Appellant
Prithvi Raj and SK Agnihotri for the Respondent
The Judgment of the Court was delivered by RANGANATH MISRA J
This appeal is by special leave and is directed against the judgment of the High Court of Madhya Pradesh by which the High Court has in second appeal upheld the dismissal of the plaintiff s suit on the plea of limita tion
The plaintiff a Government servant of Madhya Pradesh was dismissed from service by the Collector on 13th of January 1966
He preferred an appeal to the Divisional Commissioner and that appeal was dismissed on 3181966
The order of dismissal of the appeal was communicated to the plaintiff on 1991960
The plaintiff gave notice under s80 of the Code of Civil Procedure on 1761969 and filed his suit on 30th of September 1969 asking for a declaration that the order of dismissal was inoperative and he continued to be in service
This 46 suit has been dismissed in the Courts below on acceptance of the defence plea that it had not been filed within three years from the date when the cause of action first arose as required under Article 58 of the First Schedule of the 
When this appeal came up for hearing before a Division Bench reliance was placed on the decision of this Court in Sita Ram Goel vs The Municipal Board Kanpur  Ors  in support of the contention that the suit was barred by limitation
The Division Bench extracted a passage from Goel s judgment where it said The result is no doubt unfortunate for the appellant because the trial court found in his favour in regard to his plea of wrongful dismissal
If he had only brought the suit within the period prescribed by section 326 of the Act he might possibly have got some relief from the Court
He however chose to wait till the decision of the State Govern ment on his appeal and overstepped the limit of time to his own detriment
We are unable to come to any other conclusion than the one reached above and the appeal must therefore stand dismissed but in the peculiar circum stances of the case we make no order as to costs  and observed Such unfortunate results should be avoided if it is possible to do so
We are of the view that the decision in Sita Ram Goel s case which has been decided by a Bench of five Judges requires to be reconsidered    See That is how this appeal has come before the Seven Judge Bench
The plaintiff s suit was one to obtain a declaration that the order of dismissal was bad and he continued to be in service
To such a suit the Courts below have rightly applied Article 58 of the First Schedule of the 
That Article runs thus 58
To obtain any Three When the right to other declaration
years sue first accrues
 Appellant s counsel placed before us the residuary Article 113 and has referred to a few decisions of some High Courts where in a 47 situation as here reliance was placed on that Article
It is unnecessary to refer to those decisions as on the authority of the judgment of this Court in the case of Pierce Leslie  Co Ltd vs Violet Ouchterlony Wapshare  Ors
vice versa   it must be held that Article 113 of the Act of 1963 corresponding to Article 120 of the old Act is a general one and would apply to suits to which no other Article in the schedule applies
The fate of this appeal therefore rests upon the finding as to when the right to sue first accrued
All the three Courts have accepted the position that on 131966 when the order of dismissal was made by the Collector the right to sue first accrued
Admittedly the suit was not filed within a period of three years from that date
The appeal was dismissed on 3181966
The sixty days  time spent for complying with the requirement of notice under section 80 of the Code of Civil Procedure was available to the plaintiff in addition to the period of three years
If the date therefore counts from the date of the appellate order the suit would be within time
In Goel s case the question of merger of the order of the lower authority in the order of the higher authority was considered
Adverting to this aspect Bhagwati J who spoke for the Court said The initial difficulty in the way of the appellant however is that departmen tal enquiries even though They culminate in decisions on appeals or revision cannot be equated with proceedings before the regular courts of law Reliance was placed on the observations of this Court in State Uttar Pradesh vs Mohammad Nooh   where it has been said  an order of dismissal passed on a departmental enquiry by an officer in the department and an order passed by another officer next higher in rank dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department can hardly be equated with any propriety with decrees made in a civil suit under the Code of Civil Procedure by the Court of first instance and the decree dismissing the appeal therefrom by an appeal court and the order dismissing the revision petition by a yet higher court   because the de partmental 48 tribunals of the first instance or on appeal or revision are not regular courts manned by persons trained in law although they may have the trapping of the courts of law   and the Court proceeded to say The analogy of the decisions of the courts of law would therefore be hardly available to the appellant Alternately the Court also examined the question as to whether when the appeal of the appellate court affirming the decree of the trial court was made the original decree had ceased to be operative
Bhagwati J quoted with approval another part of the judgment in Moharnmad Nooh s case where it was said In the next place while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision it does so only for certain pur poses namely for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath vs Munni Dei 41 Indian Appeals 104 or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain vs Gendan Singh 53 Indian Appeals 197
But as pointed out by Sir Lawrence Jen kins in delivering the judgment of the Privy Council in Juscurn Soid vs Pirthichand Lal 40 indian Appeals 52 whatever be the theory under other systems of law under the Indian law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal
There is nothing in the Indian law to warrant the suggestion that the decree or order of the court or tribunal of the first instance be comes final only on the termination of all proceedings by way of appeal or revision
The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective  Bhagwati J then said The original decree being thus operative what we are really concerned with is the commence ment of the period of limitation as prescribed in the relevant statute and if the 49 statute prescribes that it commences from the date of the accrual of the cause of action there is no getting behind these words in spite of the apparent inequity of applying the same In Mohammad Nooh s case the question for consideration was whether the impugned order in the proceedings under Article 226 of the Constitution before the High Court was an order prior to the Constitution and therefore the High Court could not exercise its jurisdiction or was it one pending at the commencement of the Constitution and the revisional order being after the Constitution came into force the writ petition would be maintainable
The majori ty as also Bose J who otherwise differed agreed that jurisdiction under Article 226 of the Constitution was not retrospective
The majority opinion however was that it would not be correct to say that the order of dismissal made on April 20 1948 merged in the appellate order dated May 7 1949 and both the orders in due course merged in the revisional order of April 22 1950
The original of dismiss al was operative on its own strength
Bose J however observed I see no reason why any narrow or ultra technical restrictions should be placed on them
Justice should in my opinion be administered in our Courts in a common sense liberal way and be broad based on human values rather than on narrow and restricted consider ations hedged round with hairsplitting techni calities  
The final order was passed after the Constitution on April 22 1950
It is true that if it had been passed before the Constitution came into force on January 26 1950 the petitioner would have had no remedy in the Courts
But the Constitution breathed fresh life into this land and conferred pre cious rights and privileges that were not there before
Why should they be viewed nar rowly Why should not that which would have been regarded as still pending for present purposes if all had been done after the Constitution be construed in any different way when the final act which is the decisive one for these purposes was done after it The problem in Mohammad Nooh s case therefore was differ ent from what was for consideration in Goel s case
In Madan Gopal Rungta vs Secretary to the Government of Orissa 1962 Suppl
3 SCR 906 a Constitution bench of this Court was 50 examining the correctness of the finding of the High Court that it had no jurisdiction to entertain a petition under Article 226 of the Constitution as the revisional order was that of Government of India located outside its territorial jurisdiction
Rungta s case took into consideration the judgment in Mohammad Nooh s case and stated We are of opinion that the principle of Mohammad Nooh s case cannot apply in the circumstances of the present case
The ques tion there was whether the High Court could issue a writ under article 226 in respect of a dismissal which was effective from 1948 simply because the revision against the order of dismissal was dismissed by the State Gov ernment in April 1950 after the Constitution came into force
It was in these circumstances that this Court held that the dismissal having taken place in 1948 could not be the subject matter of an application under article 226 of the Constitution for that would be giving retro spective effect to that Article
The argument that the order of dismissal merged in the order passed in appeal therefrom and in the final order of revision was repelled by this Court on two grounds
It was held firstly that the principle of merger applicable to decrees of courts would not apply to orders of departmental tribunals and secondly that the original order of dismissal would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision and therefore the order of dismissal having been passed before the Constitution would not be open to attack under article 226 of the Constitu tion
We are of opinion that the facts in Mohd Nooh s case were of a special kind and the reasoning in that case would not apply to the facts of the present case
 The view expressed by Wanchoo J in Rungta s case meets with our approval
In Rungta s case this Court ultimately held that the order of the State Government had merged into the order of the Central Government and the High Court was therefore right in its view that it had no jurisdiction
The next Constitution Bench decision of this Court is that of Collector of Customs Calcutta vs East India Commer cial Co Ltd where this Court observed The question therefore turns on whether the order of 51 the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority
It is obvious that when an appeal is made the appellate authori ty can do one of three things namely i it may reverse the order under appeal ii it may modify that order and iii it may merely dismiss the appeal and thus confirm the order without any modification
It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority
The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority
It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it
In all these three cases after the appellate authori ty has disposed of the appeal the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it
In law the appellate order of confirmation is quite as efficacious as an operative order as an appel late order of reversal or modification
 A 3 Judge Bench decision in the case of Somnath Sahu vs The State of Orissa  Ors is an authority in support of the position as accepted by the two Constitu tion Bench judgments referred to above
There it was held in the case of a service dispute that the original order merged in the appellate order of the State Government and it is the appellate decision which subsisted and became opera tive in law and was capable of enforcement
That judgment relied upon another decision of this Court in support of its view being CIT v
Amrit Lal Bhagilal  Co 1959 SCR 713
The distinction adopted in Mohammad Nooh s case between a court and a tribunal being the appellate or the revisional authority is one without any legal justification
Powers of adjudication ordinarily vested in courts are being exercised under the law by tribunals and other constituted authori ties
In fact in respect of many disputes the 52 jurisdiction of the court is now barred and there is a vesting of jurisdiction in tribunals and authorities
That being the position we see no justification for the distinc tion between courts and tribunals in regard to the principle of merger
On the authority of the precedents indicated it must be held that the order of dismissal made by the Collec tor did merge into the order of the Divisional Commissioner when the appellant s appeal was dismissed on 318
In several States the Conduct Rules for Government servants require the administrative remedies to be exhausted before the disciplinary orders can be challenged in court
Section 201 of the provides 201
A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances
 The Rules relating to disciplinary proceedings do pro vide for an appeal against the orders of punishment imposed on public servants
Some Rules provide even a second appeal or a revision
The purport of section 20 of the is to give effect to the Disciplinary Rules and the exhaustion of the remedies available thereunder is a condition precedent to maintaining of claims under the 
Administrative Tribunals have been set up for Government servants of the Centre and sever al States have already set up such Tribunals under the Act for the employees of the respective States
The law is soon going to get crystallised on the line laid down under section 20 of the 
In this background if the original order of punishment is taken as the date when cause of action first accrues for purposes of Article 58 of the  great hardship is bound to result
On one side the claim would not be maintainable if laid before exhaustion of the remedies on the other if the departmental remedy though availed is not finalised within the period of limitation the cause of action would no more be justiciable having become barred by limitation
Redressal of grievances in the hands of the departmental authorities take an unduly long time
That is so on account of the fact that no attention is ordinarily bestowed over these matters and they are not considered to be governmental business of substance
This approach has to be deprecated and authorities on whom power is vested to dispose of appeals and revisions under the Service Rules must dispose of such matters as 53 expeditiously as possible
Ordinarily a period of three to six months should be the outer limit
That would discipline the system and keep the public servant away from a protract ed period of litigation
We are satisfied that to meet the situation as has arisen here it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant service Rules as to re dressal are disposed of
The question for consideration is whether it should be disposal of one appeal or the entire hierarchy of reliefs as may have been provided
Statutory guidance is available from the provisions of sub sections
2 and 3 of section 20 of the 
There it has been laid down 202
For the purposes of sub section 1 a person shall be deemed to have availed of all the remedies available to him under the rele vant service rules as to redressal of griev ances a if a final order has been made by the Government or other authority or offi cer or other person competent to pass such order under such rules rejecting any appeal preferred or representation made by such person in connection with the grievances or b where no final order has been made by tee Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person if a period of six months from the date on which such appeal was preferred or representation was made has expired
3 For the purposes of sub sections 1 and 2 any remedy available to an appli cant by way of submission of a memorial to the President or the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial
 We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided 54 entertaining the appeal or representation is made and where no such order is made though the remedy has been availed of a six months  period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen
We however make it clear that this principle may not be applicable when the remedy availed of has not been provided by law
Repeated unsuccessful representations not provided by law are not governed by this principle
It is appropriate to notice the provision regarding limitation under section 21 of the 
Sub section 1 has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub section 3
The Civil Court s jurisdiction has been taken away by the Act and therefore as far as Government serv ants are concerned Article  58 may not be invocable in view of the special limitation
Yet suits outside the purview of the shall continue to be gov erned by Article 58
It is proper that the position in such cases should be uniform
Therefore in every such case only when the appeal or representation provided by law is disposed of cause of action shall first accrue and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made the right to sue shall first accrue
Submission of just a memorial or representation to the Head of the establishment shall not be taken into considera tion in the matter of fixing limitation
In view of what we have said above Goel s case must be taken to have not been correctly decided
Reliance was placed by appellant s learned counsel on a recent decision of a Two Judge Bench in the case of Raghubir Jha vs State of Bihar  Ors The conclusion reached is in accord with what we have held but the legal position was not at all referred to or examined
It is unnecessary to make any further reference to that judgment
Now coming to the facts of the present appeal
Since the claim has been dismissed on the plea of limitation and our conclusion is that the suit was within time the judg ments of the trial Court the First 55 Appellate Court and the High Court are set aside and the matter is remitted to the trial Court for disposal in ac cordance with law
Too long a period has now intervened between the dismissal of the suit and our order of remand
We therefore direct the learned trial Judge to take all effective steps open to him in law to ensure that the suit is disposed of finally before the 15th of December 1989
Costs shall abide the event
YLal
Appeal allowed


Summary:
The appellants are the tenants of premises situated in the District of Bijnor
The suit for their eviction was filed in 1967 on the ground that they tenants had made material alteration in the property and as such were liable for ejectment under section 31c of the UP Temporary Control of Rent and Eviction Act 1947
The appellants did not dispute the constructions in the demised premises but asserted that the constructions in question had been made with a view to save the building from rain water and fire and the constructions were not such which would render them liable for eviction as contemplated under section 3 of the Act of 1947
The appellants also pleaded that the construc tions were effected with the permission of the landlord
The learned Munsif who tried the suit held that the construc tions had been made by the tenants appellants without the consentknowledge of the landlord and that the constructions amounted to material alterations
He accordingly decreed the landlord s suit
The First Appellate Court which is the Civil Judge affirmed the decree of eviction by his order dated 16th Feb 1984
Thereupon the appellants went in second appeal before the High Court
The High Court too dismissed the appeal
It found that the constructions have been made by demolishing the old structures by conversion of six Kuchha Kothas into pucca ones and an entirely new constructions had come up in their place
It further found that the accommodation had been increased by enclosing the open space which must have been possible only by raising walls etc
In any case ac cording to the finding of the High Court the property looked different from what originally it was
Thus the alterations made by the appellants were material alterations and as such came within the mischief of section 31c of the Act 1947
9 Hence this appeal by the appellants tenants
Dismissing the appeal this Court HELD Under Section 31c of the Act it is apparent that the grounds for eviction could be either such construc tion which materially altered the accommodation or alterna tively is likely to substantially diminish its value
These are the disjunctive requirements
In the facts and circum stances of the instant appeal all the Courts have found that constructions carried out by the tenants have the effect of altering the form and structure of the accommoda tion
12B C F The suit which was filed on the ground that there were material alterations simpliciter under section 31c of the Act of 1947 would continue to be valid after the coming into operation of Act of 1972 in view of clause s of Sub section 2 of section 43 thereof
This is the consequence of the language used
Neither the Act of 1947 nor the Act of 1972 gives any right to the landlord
The landlord s right to evict tenant is guided by the Transfer of Property Act
The Act of 1947 gives protection to the tenants under certain conditions and at the time when the suit was filed the rights of the parties had been crystallised
On the facts as alleged and proved and found by the Court the tenants were liable to be evicted
The question of temporary rights in favour of the landlord does not arise
14H 15A C The rights of the parties must be determined in accord ance with the provisions of law
What justice of the case entails and what is just due and the law says is to be given to each one whether being a landlord or a tenant
The Judge is not to innovate at pleasure
He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness Cardozo The Nature of the Judicial process page 141
If that is the position on the date when the rights crystallised and in view of clause s of section 43 2 of the Act of 1972 those rights will continue as if they were under the old Act
The right had accrued to the landlord to get the eviction even if the alteration had not in any way affected or diminished the value of the premises
That right cannot be deprived
15D F Considering the fact that the tenants are poor and in possession since long the Court directed that the tenants will not be evicted until 30th September 1990 provided the tenants give the usual undertaking containing the usual terms stating inter alia that they are in possession within four week of this date
The undertaking must be given by 10 each of the appellants
default of filing of undertak ing the decree will be executable forthwith
15H 16A The Court further observed that in view of the condition of the tenants if an application is made for allotment of any other area by these parties to the appropriate authori ty and if the appellants are not in possession or occupa tion of other property such authority should consider the feasibility to give them fresh allotment of some other property
16B Babu Manmohan Das Shah  Ors
vs Bishun Das  and Qudrat Ullah vs Municipal Board Bareilly   referred to