Regular Second Appeal No. 970 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 970 of 2007 Date of decision: July 15, 2008 Babu Lal …..APPELLANT Versus Govt. of Haryana and Others …..RESPONDENTS CORAM: HON’BLE MR JUSTICE T.P.S.MANN PRESENT: Mr J.P.Sharma, Advocate for the appellant. Mr Y.P.Malik, Assistant Advocate General, Haryana for the respondents. T.P.S.MANN, J. Suit for declaration filed by the plaintiff/appellant that he was entitled to the salary for the period from 10.1.2001 to 31.3.2002 was dismissed by the learned trial Court and so also his appeal by the learned first appellate Court. He is now before this Court in a second appeal under Section 100 of the Code of Civil Procedure, hereinafter referred to as “the Code”. The plaintiff was suspended on 10.1.2001 from his service in the Vocational Educational Institute followed by an order of termination on 31.3.2002. He challenged the aforesaid action of the defendants by filing a suit but he claimed to have withdrawn the same Regular Second Appeal No. 970 of 2007 -2- after being assured by the defendants that he would be granted all the benefits for the aforementioned period. However, all the benefits were not granted later which compelled him to file the suit. The defendants pleaded that the plaintiff was charge sheeted under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules and dismissed from service on 31.3.2002. He challenged his dismissal from service by filing a departmental appeal which was accepted on 30.4.2002. The plaintiff was re-instated in service and paid all the benefits except for the period of suspension. In view of the same, he withdrew his earlier suit on 2.9.2004 by making a statement. However, he did not seek permission of the Court for filing a fresh suit so as to claim the benefits for the period from 10.1.2001 to 31.3.2002. Therefore, filing of the present suit was barred under Order II Rule 2 of the Code. Issue No.4 framed by the learned trial Court regarding maintainability of the suit was treated as a preliminary issue. Both the learned Courts below held that the present suit was not maintainable in view of the provisions of Order II Rule 2 and Order XXIII Rule 1 (4) of the Code. By way of the present suit, the plaintiff-appellant claimed salary for the period from 10.1.2001 to 31.3.2002, during which period, he remained suspended. It is a fact that for the said period, the plaintiff- Regular Second Appeal No. 970 of 2007 -3- appellant was given subsistence allowance. However, when the plaintiff-appellant had filed earlier suit, he had sought claim for the aforementioned period as well. After his re-instatement on account of acceptance of his departmental appeal, the appellant withdrew his earlier suit, without obtaining permission from the Court to file a fresh suit for claiming actual salary for the aforementioned period, instead of having been granted subsistence allowance. Therefore, he was precluded from filing a fresh suit on the same cause of action, which was also the basis for filing of the earlier suit. Under these circumstances, the learned Courts below were justified in declining the relief to the appellant for being granted salary for the period and dismissing his suit in view of the provisions of Order II Rule 2 and Order XXIII Rule 1 (4) of the Code. No illegality or infirmity has been pointed out by the learned counsel for the appellant in the decisions rendered by the learned lower Courts. The substantial questions of law, as framed by the appellant, do not arise for consideration. The appeal is without any merit and resultantly, dismissed. July 15, 2008 (T.P.S.MANN) Pds. JUDGE