R.S.A.No.2379 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2379 of 2007 Date of Decision : 21.5.2009 The Kotli Sanghar Co-operative Agricultural Service Society Ltd. ....Appellant Versus Gura Singh ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.J.S.Brar, Advocate for the appellant. Mr.Rahul Rampal, Advocate for the respondent. ... MAHESH GROVER, J. This is defendant's second appeal filed against the judgments of the learned trial Court dated 1.5.2006 and that of the first appellate Court dated 11.1.2007 by which the suit of the plaintiff/respondent assailing the order dated 26.8.2000 vide which his services as Sewadar were terminated had been decreed. The plaintiff/respondent pleaded that he was working as a Sewadar with the defendant/appellant since 21.11.1994 and some false and concocted allegations were levelled against him on the basis of which a resolution was passed on 20.8.2000 dismissing his services. He pleaded that the order dated 26.8.2000 is bad for the following reasons :- R.S.A.No.2379 of 2007 -2- i) That no charge sheet according to rules was served upon him; ii) that no regular enquiry was held against him and he was never given an opportunity of being heard; iii) that he was not given an opportunity of showing cause against the proposed punishment of dismissal; and iv) that the provisions of rules have been violated. He pleaded that earlier he filed a suit for permanent and mandatory injunction seeking to restrain the defendant/appellant from terminating his services and in that suit he had specifically pleaded that the order dated 26.8.2000 was not in his knowledge. In the written statement filed by the defendant/appellant the factum of his services having been terminated on 26.8.2000 was disclosed upon which the plaintiff/respondent withdrew the suit by making a statement that the earlier suit had become infructuous and that he wishes to challenge the order dated 26.8.2000, which statement was accepted and the suit was permitted to be withdrawn. Upon notice, the appellant appeared and filed the written statement and questioned the jurisdiction of the Civil Court to try the case in the light of Section 79 of the Punjab Co-operative Societies Act. It was pleaded by the appellant that work and conduct of the plaintiff/respondent was unsatisfactory and therefore his services have been terminated. They further pleaded that since the earlier suit had been withdrawn, the present suit was not maintainable and the plaintiff was estopped by his own act and conduct to file the present suit. It was next pleaded that before termination the R.S.A.No.2379 of 2007 -3- plaintiff/respondent was served with a show cause notice on the basis of allegations levelled against him which have been detailed in the order dated 26.8.2000. It was also pleaded that the plaintiff/respondent was aware of the allegations against him and therefore his services were rightly dismissed. The parties went to trial on the following issues :- 1. Whether the resolution dated 26.8.2K is illegal, void and arbitrary, against the provisions of Service Rules and is liable to be rejected?OPP 2. Whether this court has no jurisdiction to try the case in the light of Section 79 of the Pb.Co-operative Societies Act?OPD 3. Whether the suit is not maintainable in the light of fact that earlier suit filed by the plaintiff was dismissed as withdrawn?OPD 4. Whether the plaintiff is estopped by his act and conduct to file the suit?OPD 5. Whether no cause of action has accrued to file the present suit?OPD 6. Relief. The trial Court decreed the suit of the plaintiff/respondent and in appeal the findings of the learned trial Court were affirmed. While concluding as above, the Courts below held that there was no evidence led by the appellant to show the misconduct of the plaintiff/respondent and also held that the principles of natural justice have been violated as no hearing was afforded to the R.S.A.No.2379 of 2007 -4- plaintiff/respondent. Assailing the aforesaid findings in the regular second appeal learned counsel for the appellant has raised a solitary contention before this Court that as to whether the instant suit was barred under Order 2 Rule 2 CPC or not. He contended that apart from this argument this is the only substantial question of law which arises for the consideration of this Court. He contended that since the earlier suit was filed on 4.10.2000 when the order of termination of the services had already come into existence on 26.8.2000, the plea of assailing the order was available to him which he did not avail of. He merely filed a suit for permanent and mandatory injunction. He referred to Ex.P3, the plaint on record and Ex.P4, the written statement. He next pleaded that the suit was withdrawn without seeking any permission from the Court, which is reflected from the order of the learned trial Court Ex.P5. The instant suit was filed on 6.11.2001. He thus contended that in view of the glaring facts the present suit was not maintainable and was hit by the principle of res judicata. Learned counsel for the respondent on the other hand vehemently contended that this order dated 26.8.2000 was not in his knowledge when the earlier suit was filed on 4.10.2000. He contended that it is for the first time from the written statement, which was filed pursuant to suit for permanent and mandatory injunction that he came to know about the dismissal order and in view of the above he had withdrawn the suit by making a statement which was accepted by the learned trial Court. Thereafter, he filed the R.S.A.No.2379 of 2007 -5- present suit by taking all the comprehensive pleas and assailing the order. I have heard the learned counsel for the parties and have perused the impugned judgments and also the record which has been produced before the Court by the respective counsel. A perusal of the plaint which has been filed by the respondent shows that in para 4 he had pleaded that he was unaware of the order dated 26.8.2000 which was never served upon him and this plea was further reiterated while filing the replication. The appellant in turn has merely denied the allegation but had not specifically pleaded as to whether the order had been communicated to the respondent. But if the testimony of the plaintiff/respondent is to be seen, he has categorically admitted that the order dated 26.8.2000 by which his services were terminated was passed in his presence. In this view of the matter the pleadings raised in the instant suit by the respondent that he was unaware of the order are apparently false. Now the question that arises for determination of this Court is whether the suit was hit by the principle of res judicata? According to the testimony of the plaintiff/respondent himself, he was aware of the order dated 26.8.2000 which was passed in his presence. He filed the earlier suit on 4.10.2000. Once he was aware of the order of termination, it was for him to assail the same but for the reasons best known to him he merely filed a suit for permanent and mandatory injunction seeking to restrain the appellant from terminating his services. The order was not specifically assailed. The provisions of R.S.A.No.2379 of 2007 -6- Order 2 Rule 2 CPC are extracted as under :- “ORDER II Frame of Suit 1. xx xx xx xx 2. Suit to include the whole claim –(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.-- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.-- A person 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.” From the perusal of the above, it is clear that a suit which is filed by an incumbent is to include the whole of the claim which he is entitled to make in respect of the cause of action; but he may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court and if he omits or intentionally relinquishes any portion of his claim, then he is clearly debarred from raising a R.S.A.No.2379 of 2007 -7- challenge to such relinquished portion of the claim. In this view of the matter, there is little hesitation to hold that the instant suit was clearly barred by the provisions of Order 2 Rule 2 CPC. The question of law stands answered in favour of the appellant. The appeal is accordingly accepted and the impugned judgments are set aside. 21.5.2009 (MAHESH GROVER) JUDGE dss