REGULAR SECOND APPEAL NO.2012 OF 1990 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 12, 2010 State of Punjab and another .....Appellants VERSUS Sudarshan Kumar ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Ms. Ambika Luthra, A.A.G., Punjab, for the appellants. Mr. G. S. Bal, Advocate, for the respondent. **** RANJIT SINGH, J. (ORAL) The facts, leading to filing of this appeal, are that the respondent-plaintiff was appointed by the Chief Medical Officer, Patiala, on 21.11.1968 and was removed from service on 22.12.1972. He challenged the order of his removal and filed a civil suit, which was decreed on 23.9.1978. Consequently, the respondent-plaintiff filed an execution and an amount of Rs.17874- 25P was paid to him on 8.2.1981. Another sum of Rs.14,166-10P was paid to him on 25.8.1982. Thereafter, the respondent-plaintiff filed a suit alleging that the amount as paid to him was unjustly REGULAR SECOND APPEAL NO.2012 OF 1990 :{ 2 }: detained and, thus, he was entitled to receive the same with interest @ 12% per annum compounded annually. The respondent-plaintiff has pleaded that the action in not releasing the arrears with interest was illegal, untravires and unconstitutional. The suit was contested by the State. A preliminary objection was raised that the suit was bad for non-joinder and misjoinder of necessary party. It was also stated that there was no cause of action to file the present suit. On merits, the date of appointment of the respondent-plaintiff was admitted and also the fact that he was removed from service in the year 1972. The fact that his suit was decreed and the payment was released was also admitted. It was, however, pleaded that no order regarding interest was passed in the decree sheet dated 23.9.1978 and accordingly the action of the Court in granting interest was not legal. The suit was tried on the following issues:- “1. Whether the plaintiff is entitled to declaration prayed for? OPP 2. Whether the suit is bad for non-joinder and misjoinder of parties?OPD 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has no cause of action? OPD 5. Whether the notice u/s 80 CPC is not valid? OPD 6. Relief.” The suit, however, was dismissed on 26.10.1987. Feeling aggrieved against the same, the respondent-plaintiff filed an appeal. The impugned judgement passed by the Trial Court was set-aside and the suit was decreed on 28.9.1989. The State accordingly has REGULAR SECOND APPEAL NO.2012 OF 1990 :{ 3 }: filed the present Regular Second Appeal. Learned State counsel has placed before me the following substantial questions of law, though no formal application in this regard was filed:- “1. Whether the subsequent suit claiming interest on the same cause of action would be barred by the principle of constructive res judicata? 2. Whether the plaintiff is entitled to interest on the payment when the same is not awarded in the previous decree? 3. Whether the plaintiff can file a subsequent suit for interest when the subject matter has become final between the parties? 4. Whether the Appellate Court has erred in reversing the judgment of Trial Court while holding that the judgment in consequence of which the plaintiff was paid the amount was not required to be placed on record? 5. Whether the Appellate Court can grant relief of interest without appreciating the facts of the case and only on the ground that legally interest is liable to be paid? During the course of pleadings, however, the State counsel has restricted her prayer only to the aspect that the present suit as filed would be barred by the principle of constructive res judicata. As such, judgment of the Appellate Court in granting interest can not be sustained. There being no dispute about the entitlement of the respondent-plaintiff to the amount paid to him, the only question left REGULAR SECOND APPEAL NO.2012 OF 1990 :{ 4 }: to be decided would be whether the respondent-plaintiff could file a separate suit for claiming interest and whether this suit was barred by principle of res judicata. The plea of the State counsel is that the omission on the part of the respondent-plaintiff to sue and claim interest would debar him to file a suit on the principle of constructive res judicata in view of the provisions of Order II Rule 2. Order II Rule 2 (3) C.P.C does make a provision that the person if entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Submission is that the respondent-plaintiff was well within his right to claim interest on the payment, which was payable to him upon setting-aside of the order of dismissal and accordingly once this relief, if claimed, and not granted or if omitted to claim, would now can not be claimed through a separate suit. In support, the counsel has placed reliance on Devilal Modi Vs. Sales Tax Officer, Ratlam and others, AIR 1965 SC 1150, State of U.P. Vs. Nawab Hussain, (1977) 2 Supreme Court Cases 806 and Workmen of Cochin Port Trust Vs. Board of Trustees of the Cochin Port Trust and another, (1978) 3 Supreme Court Cases 119. No doubt, the view taken in the above cases is that the constructive res judicata is available to defendant in a suit, when the plaintiff claims a relief which he could seek in a writ petition filed earlier, which was dismissed. Question to be considered is if the respondent-plaintiff could claim interest in earlier suit to face the hurdle of res judicata or REGULAR SECOND APPEAL NO.2012 OF 1990 :{ 5 }: constructive res judicata. In the earlier suit filed, the challenge was made only to the order of removal from service. Payment of arrears was dependent upon the relief, which was to be granted in the suit. Requiring the respondent-plaintiff to claim interest on the basis that in case his suit was allowed, he would be entitled to certain payment with interest is apparently too farfetched. The earlier Court could only set-aside the order of dismissal or removal but still could decline the arrears as a consequential relief. Asking for interest on the arrears, which ultimately were paid, could not have been visualized or sought in an earlier suit. Strictly speaking, the principle of Order II Rule 2 that the respondent-plaintiff omitted to make a claim, which he could have, would not strictly apply to this case. The substantial questions of law as framed and urged by the State counsel, thus, would not arise. No case for interference in the Regular Second Appeal is, thus, made out. The same is accordingly dismissed. May 12, 2010 ( RANJIT SINGH ) khurmi JUDGE