R.S.A. No. 714 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 714 of 2009 (O&M) Date of Decision : 11.2.2009 Union of India & others .......... Appellants Versus Mukhtiar Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Gurpreet Singh, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 1990-C of 2009 This is an application under Section 5 of the Limitation Act for condoning the delay of 174 days in filing the appeal. For the reasons stated in the application, the C.M. is allowed. The delay of 174 days in filing the appeal is condoned. R.S.A. No. 714 of 2009 This regular second appeal is directed against the judgments and decree dated 23.5.2007 and 4.4.2008 passed by the learned Courts below vide which suit filed by the plaintiff-respondent for declaration that he was entitled to disability pension for life w.e.f. the date of discharge from Army service along with interest @ 18% per annum, on the basis of oral as well as documentary evidence stands decreed. The plaintiff-respondent was enrolled in Army in February R.S.A. No. 714 of 2009 2 1964 and was discharged from Army service on 1.3.1979 on medical grounds. The case set up by the plaintiff-appellant was that on completion of 14 years tough Army service he became victim of dreadful disease i.e. Pshysosis and ear disease while serving at high altitude area i.e. Srinagar (J & K). He was admitted in Military Hospital Srinagar ( J& K) but he could not recover his health. He was treated in Military Hospital, Barrackpur but declared unfit for further Army service by medical board showing low medical category EEE (P) with 80% disability, as he lost his mental balance as such he was not able to serve the Nation upto the age of superannuation. The plaintiff respondent claimed disability pension but his claim for pension was rejected by CCDA (P) Allahabad vide P.P.O. No. 1272256/Q/Pen-2 dated 14.3.2005. The order was claimed to be wrong, illegal, against facts, and thus entitled to disability pension w.e.f. 2.3.1979 for life along with interest. It was pleaded that notice under Section 80 CPC was served but the same was not replied to by the appellant-defendants. In spite of notice, the appellant failed to file reply to the suit and its defence was ordered to be struck off. The learned trial Court dismissed the suit on the ground that the plaintiff failed to prove the Medical Board's proceedings and also that the suit was time barred as plaintiff had chosen to approach the Court after 25 years. The plaintiff preferred an appeal against the judgment and R.S.A. No. 714 of 2009 3 decree passed by the learned trial Court. The learned lower appellate Court by placing reliance on the judgment of this Court in the case of Harjap Singh Vs. Union of India 200(4) Service Cases Today 896 and also the judgment of the Hon'ble Supreme Court in the case of Shiv Dass Versus Union of India 2007(2) Service Cases Today 72 (Supreme Court ) held that dismissal of suit by the trial Court could not be sustained. It is established law that when on account of arduous duties which are supposed to be performed by the Jawans while in Army service, whether in plains or on the mountains, types of diseases suffered by plaintiff invariably occur which are attributed or aggravated by military service then the person is entitled to disability pension. This Court in the case of Harjap Singh Vs. Union of India (supra) held that the army personnel found suffering from fits and the other disability declared was Neurosis Hysterical Reaction was entitled to, the benefit of disability pension. The Hon'ble Supreme Court in the case of Shiv Dass Versus Union of India (supra) was pleased to lay down that claim of disability pension arises every month, therefore, it can not be said that such claim was time barred. The learned counsel for the appellant raised the following substantial question of law for consideration by this Court :- “Whether in absence of documentary evidence by way of medical Board proceedings, having been filed in Court , the suit could be decreed ? In support of the substantial question of law the learned counsel R.S.A. No. 714 of 2009 4 for the appellant contends that once the plaintiff has failed to prove by documentary evidence the medical disability suffered it could not be held that the case stood proved. Therefore, the learned lower appellate Court committed an error in law in reversing the judgment and decree passed by the learned trial Court as in absence of documentary evidence, it was not possible to decree the suit, claiming disability pension. There is no force in the contention raised by the learned counsel for the appellant. It may be noticed that the averments made in plaint went unrebutted because the defence of the defendant appellant was struck off for not filing written statement. It is settled law that admitted facts need not be proved and once the averments made went unrebutted the learned Court could decree the suit merely on the basis of pleadings. It is not disputed that plaintiff/ respondent was boarded out, due to medical disability. The averments made regarding disease being attributable to army service went unrebutted. The findings by the learned lower appellate Court that suit was not time barred, being a case of recurring cause of action, can also not be questioned. The substantial question of law framed is answered against the appellant / defendant, and the regular second appeal is dismissed in limine. 11.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE