RSA No. 1266 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1266 of 2011 (O&M) Date of Decision: 12.5.2011. Managing Committee, Jain Girls .......Appellant Senior Secondary School Vs. Smt. Sarita Malik ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Bharat Bhushan Sharma, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for mandatory injunction claiming arrears of pay from 10.12.1993 to 07.3.1995. The case of the plaintiff in brief was that she had been appointed as a J.B.T Teacher with the defendant on 12.10.1990. The services of the plaintiff were terminated vide order dated 10.12.1993. The plaintiff challenged the said order by filing a civil suit and the same was decreed in her favour vide judgment and decree dated 2.6.2000. The appeal filed by the defendant, challenging the said judgment and decree, was dismissed vide judgment and decree dated 10.3.2001 by the Additional District Judge. The said decree had become final. The plaintiff filed an execution petition but the same was dismissed by the Civil Judge (Senior Division) on the ground that no consequential relief qua back wages had been claimed by the plaintiff in the suit filed by RSA No. 1266 of 2011 (O&M) -2- her. The plaintiff had remained unemployed for the period from 10.12.1993 to 7.3.1995 and was entitled to receive the pay and allowances for the said period from the defendant. Hence, the suit for mandatory injunction was filed by the plaintiff. Defendant, in its written statement, admitted the fact that the services of the plaintiff had been terminated vide order dated 10.12.1993. The passing of the decree by the civil court as well as the trial court in favour of the plaintiff was also admitted. It was averred that the plaintiff was not entitled to any pay or allowances for the period from 10.12.1993 to 7.3.1995 as the plaintiff had failed to join her duty after her termination order was set aside. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether defendant is liable to make payment of pay and other allowances to the plaintiff along with interest at the rate of 18% per annum ? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the suit is hopelessly time barred? OPD 4. Whether plaintiff has no cause of action and locus standi to file the present suit? OPD 5. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD 6. Whether suit is bad for mis-joinder and non- joinder of necessary parties? OPD 7. Relief.” Civil Judge (Junior Division) vide judgment and decree dated 4.4.2008, decreed the suit of the plaintiff. RSA No. 1266 of 2011 (O&M) -3- Aggrieved by the said judgment and decree, defendant preferred an appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 14.10.2009. Hence, the present appeal by the defendant. Learned counsel for the appellant has submitted that as per Order 2 Rule 2 of the Code of Civil Procedure, the plaintiff should have claimed the consequential relief in the earlier suit filed by her. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. The facts are not in dispute in the present case. Admittedly, the services of the plaintiff were terminated vide order dated 10.12.1993. The said termination order was set aside by the civil court in a suit filed by the plaintiff vide judgment and decree dated 2.6.2000 Ex. P-1 and Ex.P-2, respectively. The said judgment and decree were upheld in appeal filed by the defendant vide order dated 10.3.2001. Order 2 Rule 2 of the Code of Civil Procedure reads as under:- “Suit to include the whole claim- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Relinquishment of part of claim- (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not RSA No. 1266 of 2011 (O&M) -4- afterwards sue in respect of the portion so omitted or relinquished. Omission to sue for one of several reliefs- (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.” In a similar situation, this court in 'State of Punjab versus Om Parkash 1991(3) 636' held as under:- “The concurrent findings of the learned lower Courts on issue No.2 and additional issue No.1 have been challenged in this appeal. It is contended by the learned counsel for the appellant that the suit was filed on 01.06.1973, so the plaintiff could not have claimed recovery of arrears of pay and allowances for a period of more than 3 years prior to the institution of the suit. The contention is that only 3 years period of limitation is provided for such suits and, therefore, the plaintiff's claim for the period prior to 01.06.1970 is barred by time. It is further submitted by the learned counsel that in the previous suit, the plaintiff should have challenged not only the order of dismissal but also should have claimed arrears of salary and allowances and, since this relief was not claimed in that suit, therefore, the plaintiff's claim for the period upto the date of filing RSA No. 1266 of 2011 (O&M) -5- of that suit, i.e. 25.04.1970 is barred under Order II, Rule 2, CPC. On a careful consideration of the matter, I do not find these contentions acceptable. It is provided in Order II, Rule 2 (1), CPC, that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Rule 2 (2) says that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted and relinquished. Thus, in order to consider whether the previous suit, in which the plaintiff challenged the order of dismissal, will operate as a bar, under Order II, Rule 2, CPC, to the present suit to the extent of the plaintiff's claim upto the date of filing of that suit, it is to be ascertained if the plaintiff could have sued for the recovery of arrears of pay and allowances along with the claim for declaration that the order of dismissal was illegal. There was no question of salary being accrued so long as the order of dismissal stood and, as such, the plaintiff is not barred under Order II, Rule 2, CPC, for claiming the arrears of salary on account of the previous suit for declaration that the order of dismissal was illegal. The right to claim arrears of salary accrued to the plaintiff only on 31.10.1972 as the dismissal order was quashed by the the Court on 30.10.1972.” RSA No. 1266 of 2011 (O&M) -6- In view of the above decision of this court, the courts below rightly held that the suit filed by the plaintiff claiming arrears of salary was maintainable. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE May 12, 2011 Gurpreet