RSA No. 2347 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2347 of 2009 Date of Decision: July 01, 2009 State of Punjab and others ...... Appellants Versus Jit Singh ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.M.S.Sindhu, Addl.AG, Punjab for the appellants. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondent for a mandatory injunction directing the appellants to grant him the benefits of various increments and to fix his pay appropriately and to release some amount of withheld gratuity. The following questions of law have been proposed:- “1. Whether the judgments and decree passed by both the learned lower courts are sustainable in the eyes of law? 2. Whether the order dated 4.1.96 fixing his pay on the lower stage and order dated 5.5.97 with regard to withholding of DCRG are illegal?” Learned Additional Advocate General has,however, stated that RSA No. 2347 of 2009 2 the questions which have been proposed are in fact not questions of law but has proposed a question of law regarding maintainability of the suit on the ground that Section 41(h) of the Specific Relief Act specifically bars such a suit. He has relied upon State of Haryana v. Dr. Prem Singh Mann reported as 1996(3) PLR 799 wherein this Court held as follows:- “ Section 39 of the Specific Relief Act,1963 provides that when to prevent the breach of an obligation it is necessary to compel the performance of certain acts which the court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of and also to compel the performance of the requisite acts. In the present case, nothing has been brought to my notice that could be considered necessary to compel the performance of certain acts by the State Government in order to claim the relief of mandatory injunction. On the other hand Section 41(h) of the Specific Relief Act provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. In the present case, as already noticed, an equally efficacious remedy was available with the plaintiff of claiming the relief of recovering the amount by filing a suit for recovery of money. Once that is so, in view o the bar contained in Section 41(h) of the Specific Relief Act a suit for mandatory injunction is not maintainable seeking a direction to the State Government RSA No. 2347 of 2009 3 to pay the amount due to the plaintiff. Section 39 of the Specific Relief Act does not envisage a situation where the State Government can be compelled to pay to its employees the arrears of pay or other benefits, which can be calculated in terms of money, by filing a suit for mandatory injunction. As already observed, mandatory injunctions are granted by the Court in order to prevent the breach of an obligation. In the present case the plaintiff clearly had a money claim against the State Government and in such a situation, a suit for mandatory injunction, in my view was not maintainable especially having regard to the provisions of Section 41(h) of the Specific Relief Act. A duty is cast on plaintiff to show and satisfy the Court that the suit as brought by him is properly constituted and maintainable in law. Plaintiff has to succeed on the strength of his own case and not on the weakness of he defence. Non raisin o such an objection in the written statement cannot clothe the plaintiff with a better right than h had. Support for the above view is available from the judgment of this Court in S.K.Dhadwal v. Prem Singh and another, 1988 PLJ 70.” Learned Additional Advocate General has thus contended that the suit for mandatory injunction being merely a suit for recovery of amounts was not maintainable. In my opinion the reliance placed on the aforesaid judgment is RSA No. 2347 of 2009 4 misplaced. A perusal of the judgment reveals that in that case the employee had sought the specific relief for the grant of specific increments on the ground that he had improved his educational qualifications. In the present case the plea of the plaintiff as shown above is not for the grant of any specific increments but for a direction to appropriately fix his pay in view of the Govt. Order. No doubt since the respondent had retired till the time benefits of revised pay could have been released to him, his suit for mandatory injunction could not now alter the fact that the suit as originally termed was not a suit for mandatory injunction but for recovery of money. I further find that on merits the claim of the respondent has been allowed by the Courts below after considering all the facts brought on record. In the circumstances I decide the question of law proposed against the appellant and consequently dismiss this appeal, however, with no order as to costs. (AJAY TEWARI) JUDGE July 01 , 2009 sunita