Regular Second Appeal No.3064 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: March 22, 2010 The Managing Director, M/s Mobility Solutions Limited, Chandigarh ...Appellant VERSUS Dinesh Kumar Sharma ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 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? Present: Mr.Vikas Chatrath, Advocate, for the appellant. Mr.J.S.Tanwar, Advocate, for the respondent. ***** RANJIT SINGH, J. Respondent-plaintiff had filed a suit for declaration to the effect that he is entitled to claim the salary and other expenses and damages to the tune of Rs.1,33,650/- from the appellant-defendant company and also the consequential relief of mandatory injunction Regular Second Appeal No.3064 of 2009 (O&M) : 2 : for directing the appellant-defendant to make payment of the same to the respondent-plaintiff. The Trial Court decreed the suit and held respondent- plaintiff entitled to recover sum of Rs.35,000/- as salary for the month of July, 2005 from the appellant-defendant. He was also held entitled to claim interest at the rate of 6% per annum on the decretal amount till its actual realisation. The appellant filed an appeal against the said judgment. An objection was raised by the appellant that the suit for declaration was not maintainable and suit for recovery was the appropriate remedy. The first Appellate Court thereafter on its own, while deciding the issue of maintainability, came to conclude that the relief sought was of recovery of arrears of pay and perks, which had been quantified and further held that plaintiff was required to seek relief of recovery straightaway, but could not camouflage the pleadings. The Court then went ahead to observe that the respondent-plaintiff could not be non-suited on this ground. Finding that the Trial Court had already directed the respondent-plaintiff to affix stamp fee for the amount allowed, the Court decided the issue of maintainability by holding that the suit was only for recovery. The submission made by the counsel for the appellant is that the first Appellate Court was not legally justified in converting the suit filed seeking declaration to a suit for recovery. In support, the counsel has placed reliance on K.Raheja Constructions Ltd. Vs. Alliance Ministries, AIR 1995 SC 1768. The counsel may be justified in submitting that suit for recovery was barred by limitation. The counsel appearing for respondent-plaintiff, when Regular Second Appeal No.3064 of 2009 (O&M) : 3 : confronted with this legal position, very fairly says that this suit could not have been converted to suit of recovery in the manner it was done and would rather say that the Trial Court had decreed the suit in his favour allowing him pay and allowances for a period of one month only. That may be so. The question to be seen is whether the first Appellate Court was justified in converting the suit filed by the respondent-plaintiff seeking declaration to a suit for recovery on its own. In K.Raheja's case (supra), prayer for amendment of the plaint to ask for specific performance of a contract in a suit which was initially filed for relief of permanent injunction restraining respondents from alienating etc. was not accepted on the ground that this relief ought to have been asked in the original suit itself. It was observed that the relief of specific performance can not be allowed to be added after lapse of seven years being barred by limitation. In the present case, there was no prayer made even for amendment of the plaint. The ratio of law laid down in this case may have a bearing in the case to see whether the suit filed for mandatory injunction could be converted to a suit for recovery in the manner as has been done by the first Appellate Court. The view taken by the first Appellate Court is not justified in law, which has also not been very seriously contested by the counsel for the respondent-plaintiff. The substantial question of law whether first Appellate Court was justified in converting a suit for declaration to that of recovery, thus, would arise in this case. The judgment under appeal is, thus, set aside and the Regular Second Appeal is allowed. The matter would have to be remitted back to the first Appellate Court to decide the appeal filed by Regular Second Appeal No.3064 of 2009 (O&M) : 4 : the appellants including the maintainability of the suit for declaration and other issues on merits. The parties, through their counsel, are directed to appear before the first Appellate Court on 10.5.2010. March 22, 2010 ( RANJIT SINGH ) ramesh JUDGE