Regular Second Appeal No.3315 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.3315 of 2009 Date of decision: 11.09.2009 1. Union of India Ministry of Defence, New Delhi through its Secretary, 2. Chief Controller of Defence Accounts (Pension), Fort Allahabad (UP). 3. The Officer-in-Charge, Records, the Punjab Regiment, Ramgarh Cantt (Jhharkhand). ..... Appellants. Versus 1. Sanjeev Kumar No. 2484849, son of Sardara Ram, r/o village Jogi Majra, P.O. Gurha, Tehsil Thanesar, District Kurukshetra. 2. The Defence Pension, Disbursing Officer, Karnal. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr.S.K. Sharma, Advocate for the appellants. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 20.07.2007, rendered by the Court of Civil Judge ( Senior Division ), Kurukshetra,, vide which it decreed the suit and the judgment and decree dated 08.04.2009, rendered by the Court of Additional District Judge, Kurukshetra, vide which the appeal was dismissed. Regular Second Appeal No.3315 of 2009 2 2. The brief facts of the case, are that Sanjeev Kumar, plaintiff (now respondent no.1) was recruited in the Army on 03.02.1994 as Sepoy. During the training period, the plaintiff suffered grievous injuries in his left leg and was admitted in Military Hospital. It was stated that inspite of treatment, he could not recover and his disability was assessed at 50%. He was discharged from the Army service. He was granted disability pension, amounting to Rs.225/- per month from 15.01.1995 to 03.09.1997. His disability was allegedly re-assessed by the Board of Doctors at Military Hospital, Ambala Cantt, and the same was found to be 30% instead of 50%. In this view of the matter, his disability pension was discontinued. It was further stated that the disability pension of the plaintiff, without any rhyme or reason, was reduced from 50% to 30%. It was further stated that no fresh Medical Board was constituted, before reducing the disability of the plaintiff. It was further stated that for sometime, disability pension in relation to 30% disability was paid to the plaintiff, but the interest was not paid thereon. The defendants were many a time asked to grant disability pension for 50% disability, but to no avail. On their final refusal, left with no alternative, a suit for declaration and mandatory injunction was filed. Regular Second Appeal No.3315 of 2009 3 3. The defendants, put in appearance, and contested the suit, by way of filing written statement, wherein, it was pleaded that the suit was not maintainable. It was further pleaded that the plaintiff had neither locus standi nor cause of action to file the suit. It was stated that the plaintiff was medically examined by the Medical Board on 09.09.1997 and his disability was assessed at 50%. It was further stated that on re-examination by the re-survey Medical Board, PCDA,(P), Allahabad, his disability was recommended at 30%. It was further stated that the plaintiff had already been paid the disability pension. It was further stated that the disability of the plaintiff, was rightly reduced from 50% to 30%. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the plaintiff is entitled to disability pension, as alleged ? OPP 2- If issue no.1 is proved, whether the plaintiff is entitled to any interest, if so, at what rate ?OPP 3- Whether the plaintiff has no locus standi to file the present suit? OPD Regular Second Appeal No.3315 of 2009 4 4- Whether the plaintiff has no cause of action to file the present suit ?OPD 5- Whether this Court has no jurisdiction to try and entertain the present suit ?OPD 6- Relief.” 5. The parties led evidence, in support of their case. The trial Court, after hearing the Counsel for the parties, and, on going through the evidence and record of the case, decreed the suit. 6. Feeling aggrieved, against the judgment and decree dated 20.07.2007, passed by the trial Court, the appellants/defendants filed an appeal, before the Appellate Court, at Kurukshetra, which vide its judgment and decree dated 08.04.2009 dismissed the same. 7. Still feeling dis-satisfied, the instant Regular Second Appeal has been filed, by the appellants. 8. I have heard the Counsel for the appellants, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellants, submitted that the disability of the plaintiff on re-examination was rightly reduced from 50% to 30%, by the Medical Board. He Regular Second Appeal No.3315 of 2009 5 further submitted that the Courts below, recorded perverse findings, on account of mis-reading and mis-appreciation of evidence, resulting into decreeing the suit. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be dismissed. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, in my considered opinion,the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. It is settled principle of law, that this Court, in Regular Second Appeal, cannot interfere into the concurrent findings of fact, recorded by the Courts below, even if, the same may be grossly erroneous, until and unless it comes to the conclusion, that the findings recorded by the Courts below, are perverse on account mis-reading and mis-appreciation of evidence. The only grievance of the plaintiff/respondent was that his disability from 50% to 30% was reduced arbitrarily and capriciously. No doubt, the stand taken up by the appellants, was that Medical Board re-examined the plaintiff/respondent and his disability was reduced from 50% to 30%. It is evident, from para no.13 of the judgment of the trial Court, that no document was produced by the defendants/appellants, to establish their stand that the plaintiff/appellant, was re- Regular Second Appeal No.3315 of 2009 6 examined by the Medical Board and his disability was reduced from 50% to 30%. Even none of the Medical Officers of the Board, which allegedly re-examined the plaintiff/respondent for assessing the extent of disability, was not examined. Joginder Singh Kadian, Havildar Clerk, (DW-1) in his cross-examination, stated that PCDA(P), Allahabad reduced the disability of the plaintiff/respondent, but before that no notice was served upon him. He also stated that the plaintiff/respondent was not medically examined. The Courts below were, thus, right in holding that the defendants/appellants arbitrarily reduced the disability of the plaintiff/respondent from 50% to 30%. The Courts below were also right in holding that the plaintiff was entitled to the disability pension alongwith interest for 50% disability. 11. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity and, thus, warrant no interference. The judgments and decrees of the Courts below, are liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. Regular Second Appeal No.3315 of 2009 7 12. No question of law, much less substantial, arises, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same stands dismissed. ( Sham Sunder ) 11.09.2009 Judge dinesh