R.S.A.No. 735 of 2009(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 735 of 2009(O&M) Date of decision:24.2.2011 State of Punjab and others ......Appellants Versus Sarabjit Singh .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Satish Bhanot, Addl.A.G.Punjab. Mr. Rajesh Punjn, Advocate for respondent. **** SABINA, J. Plaintiff had filed a suit for declaration challenging the order dated 12.3.1981, whereby his five years approved service was ordered to be forfeited. The case of the plaintiff, in brief, was that he had joined the service of the defendants as a Home Guard in the year 1973. Plaintiff was promoted from Platoon Commander to Company Commander w.e.f. 31.3.2001. Plaintiff had retired from service w.e.f. 31.3.2006. However, the pay of the plaintiff had not been fixed R.S.A.No. 735 of 2009(O&M) 2 correctly. Now it had come to the notice of the plaintiff that his five years approved service was forfeited vide the impugned order. Defendants in their written statement averred that the plaintiff had remained absent from duty and the impugned order was passed after conducting regular enquiry. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the order dated 12.3.1981 about holding of increments is null and void? OPP. 2. If issue No.1 is proved, whether the plaintiff is entitled to claim interest at the rate of 24% per annum on arrears of pay? OPP 3. Whether the plaintiff is entitled for grant of mandatory injunction ? OPP 4.Whether the suit is not maintainable ? OPD 5. Relief.” The trial Court partly decreed the suit of the plaintiff vide judgment and decree dated 12.12.2007. Aggrieved by the same, defendants preferred an appeal and the same was dismissed vide judgment and decree dated 1.11.2008 passed by Additional District Judge, Tarn Taran. Hence, the present appeal by the defendants. The substantial question of law that arises in this case is “whether the suit filed by the plaintiff was barred by limitation?” Learned State counsel has submitted that the suit of the plaintiff was hopelessly time barred. The impugned order had been passed on 12.3.1981, whereas, the suit had been filed by the plaintiff in June 2006. R.S.A.No. 735 of 2009(O&M) 3 Learned counsel for the respondent, on the other hand, has submitted that no issue qua limitation had been framed before the trial Court. Since the order was void, hence the suit was not barred by limitation. In support of his arguments, learned counsel for the respondent has placed reliance on The State of Madhya Pradesh vs. Syed Qamarali 1967 SLR (SC) 228, wherein it was held that the suit challenging the void order could not be said to be barred by limitation. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be allowed. The order, which has been challenged by the plaintiff by filing the suit, is dated 12.3.1981. However, the suit was filed by the plaintiff on 6.6.2006. The trial Court, while dealing with issue No.4, came to the conclusion that the suit of the plaintiff was not barred by limitation as recurring cause of action had arisen to the plaintiff. The first Appellate Court also came to the conclusion that the suit of the plaintiff was not barred by limitation as recurring cause of action arisen to the plaintiff. Although a specific issue qua limitation had not been framed by the trial Court but the trial Court had dealt with the limitation aspect while dealing with issue No.4, which was framed to the effect that whether the suit was not maintainable. The parties knew their case and had led the evidence in support of their pleadings. The issue qua limitation could have been dealt with by the Courts below while deciding issue No.4. It has been held in, State of Punjab Vs. Gurdev Singh Ashok Kumar 1991(5) S.L.R. 1, as under:- R.S.A.No. 735 of 2009(O&M) 4 “ It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.” Thus, the judgment relied upon by learned counsel for the respondent fails to advance the case of the respondent in view of the decision of the Apex Court in Gurdev Singh's case (Supra). Even a void order is required to be challenged within the period of limitation. The plaintiff could have filed the suit within the period of limitation to challenge the order which was passed in the year 1981. In these circumstances, the Courts below erred in holding that the suit filed by the plaintiff was within limitation. In fact, the suit filed by the plaintiff was barred by limitation. The substantial question of law that arises in this appeal stands answered accordingly. Hence, this appeal is allowed. The impugned judgments and decrees passed by the Courts below are set aside. Consequently, the suit filed by the plaintiff is dismissed being time barred. (SABINA) JUDGE February 24, 2011 anita