R.S.A. No. 1904 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1904 of 2009 (O&M) Date of Decision : 6.5.2009 Haryana Vidyut Prasaran Nigam Limited & others .......... Appellants Versus Sohan Lal ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. K.S. Malik, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal shall dispose of RSA No. 1904 and 1905 of 2009, titled as Haryana Vidyut Prasaran Nigam Limited & others Vs. Sohan Lal and Haryana Vidyut Prasaran Nigam Limited & others Vs.Smt. Dhan Kaur & another, respectively. Both these appeals arise out of the same judgment and decree, passed by the learned lower appellate Court. The respondent / defendant challenged the action of the defendant / appellants in withdrawing the benefit granted to plaintiffs i.e. Sohanl Lal and Sher Singh, for the services rendered by them in the army, during the period of emergency. The respondent – Sohan Lal, in RSA No. 1904 joined the defence forces on 30.7.1965 and he served upto 10.1.1968, therefore, he was held entitled to the benefits of the service rendered by him during the R.S.A. No. 1904 of 2009 2 emergency period. The plaintiff / Sohan Lal was granted the benefits. However, subsequently it was ordered to be withdrawn on the basis of instructions issued by the State Government vide which it was ordered that the persons who had joined the military services after declaration of the Emergency were only entitled to the benefits of the military services and who joined the military services prior to emergency were not entitled to the benefit under the Rules. Sh. Sher Singh, represented by his legal representatives was also granted benefits of army service rendered for the period from 26.10.1962 to 10.1.1968 i.e. the period of emergency. However, it is not in dispute that Sh. Sher Singh joined defence forces much prior to imposition of emergency. The benefits granted to Sher Singh were also withdrawn. A joint suit was filed by Sohan Lal and Sher Singh, subsequently legal representatives of Sher Singh were brought on record on account of his death during the pendency of suit. The suit qua Sohan Lal was decreed whereas it was dismissed qua Sher Singh. Sher Singh filed an appeal against the judgment and decree passed by the learned trial Court, vide which suit qua Sher Singh was ordered to be dismissed. The defendant / appellants also filed appeal against the judgment and decree passed by the learned trial Court in favour of Sohan Lal by raising the plea that the plaintiff / respondents were not entitled to the benefit of the army service rendered by them during the emergency. The strong reliance was placed on the Rules of 1976, which were got clarified in R.S.A. No. 1904 of 2009 3 the year 1991. It was directed that the benefits wrongly granted be withdrawn. It was made clear that the persons who had joined the state service prior to the amendment of the Rules vide Haryana Government Notification dated 4.8.1976, would however be entitled to the benefit, even if they had joined the military services before emergency i.e. 26.10.1962. The learned lower appellate Court accepted the findings of the learned trial Court, in holding that Sohan Lal respondent was entitled to the benefits, having joined the army during emergency and therefore his case was covered under the 1976 Rules as also 1991 instructions. The appeal filed by the defendant / appellants, was ordered to be dismissed. The appeal filed by the legal representatives of Sher Singh was accepted and the Court held that though Sher Singh joined army service prior to imposition of emergency as he had been employed in civil service on 10.1.1976 i.e. prior to amendment of rules. The plea of the defendant / appellants that in fact he was brought in regular service in 1980, therefore, not entitled to benefits of emergency service was rejected. The learned lower appellate Court held that the word used in the Rules is 'appointment' and not 'regular appointment'. The word ' regular' could not be added to those instructions, especially when Sher Singh after his appointment on ad hoc basis on 20.1.1976 was regularized without any break in service. The learned counsel for the appellants contends that the appeal raises the following substantial question of law for consideration :- Whether the suit filed by the plaintiff / respondents was barred by limitation ? R.S.A. No. 1904 of 2009 4 In support of the substantial question of law, the learned counsel for the appellants contends that the benefits were withdrawn by way of order dated 6.8.1996 whereas the suit was filed in the year 2000 i.e. after expiry of three years and, thus, the suit was barred by limitation. The substantial question of law does not arise in the case. It is well settled law that question of limitation is a mixed question of law and fact and it is to be pleaded and proved by way of leading cogent evidence. The limitation of three years starts from the date cause of action accrues. It is thus question of fact which is required to be pleaded and proved as to when cause of action accrued. There may be cases, where plaintiff has a recurring cause of action like the present one, as in consequence of order, the respondents were affected every month. Even otherwise, once no issue was framed by the learned trial Court nor the same was pressed before the learned lower appellate Court the plea of limitation cannot be raised for the first time in regular second appeal. The substantial question of law, thus, does not arise for consideration in this appeal. No merit. Dismissed. 6.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE