The Velraveli Weavers' Co-operative Production and Sales Society Ltd. by Its President Vs. R. Perumal Naidu (18.08.1975 - MADHC) - Court Judgment

M.M. Ismail, J.

1. The defendant in O.S. No. 249 of 1968 on the file of the Court of the Subordinate Judge of Erode is the appellant herein. The facts are not in controversy at all. The respondent herein was employed as a clerk in the appellant-society from 1951 and his appointment was made permanent in 1952. On 23rd January, 1957, he was served with a notice dated 7th January, 1957 terminating his service with effect from 12th December, 1956. Thereupon he instituted a suit against the appellant herein in O.S. No. 284 of 1957 on the file of the Court of the District Munsi of Erode for a declaration that his dismissal by the appellant-society was illegal, for a mandatory injunction directing the appellant-society to reinstate him in the old post as a clerk, for arrears of pay up to the date of suit with interest thereon and for future salary from the date of suit till reinstatement of the respondent and for other incidental reliefs. The trial Court passed a decree declaring that the dismissal of the respondent by the appellant was wrongful and directing the appellant to reinstate the respondent in his original job, giving liberty to the appellant to call for fresh explanation from the respondent and to hold an enquiry and directing the appellant to pay a sum of Rs. 134.84 being the arrears of pay from 12th December, 1956 to 1st January, 1957. The respondent preferred an appeal in A. S. No. 146 of 1962 on the file of the Court of the Subordinate Judge of Erode against that portion of the decree of the trial Court which refused to give him the relief of arrears of salary and against the direction given to the appellant for initiating proceedings once again. The appellant also preferred an appeal, A.S. No. 133 of 1961 on the file of the same Court. Both the appeals were tried together and a common judgment was pronounced on 24th November, 1962. The learned Subordinate Judge dismissed the appeal preferred by the appellant and allowed the appeal preferred by the respondent in part holding that the respondent Was entitled to arrears of salary and setting aside that portion of the decree which directed a fresh enquiry. A second appeal, S.A. No. 177 of 1963, on the file of this Court was preferred by the appellant against the judgment of the learned Subordinate Judge and that second appeal was allowed in part by this Court in 2nd January, 1967, a certified copy of the judgment therein having been marked as Exhibit A-3 in these proceedings. This Court, while upholding the finding of the Courts below that the dismissal was illegal, held that the respondent would have to file a separate suit for the salary due to him after the date of the plaint in the earlier suit, namely, O.S. No. 248 of 1957. This Court observed:

The result of holding that the dismissal of the plaintiff is invalid in law would be that he should be deemed to be in service all through and the result would also be that month after month, he would be entitled to his salary. If the salary is not paid as and when due, Under Article 7 of the first Division of the Schedule to the Limitation Act, 1963, he would have a period of three years within which he could file a suit for arrears of the salary. A suit for a declaration that the dismissal of the plaintiff is invalid in law and for arrears of salary till the date of suit cannot be converted into a suit enabling him to recover arrears of salary due to him without any limit of time till he is restated to his old post.

It is thereafter the present suit was instituted by the respondent herein claiming salary for a period of 119 months at the rate of Rs. 110 per mensem, that is, for the period 1st April, 1957 to the end of February, 1967. The suit was resisted by the appellant herein. With regard to the period of limitation, by an amendment to the plaint, the respondent claimed that he was entitled to the benefit of Section 14 of the Limitation Act. The appellant had filed two additional written statements, one of which related to this claim of the respondent to the benefit of Section 14 of the Limitation Act.

On the pleadings of the parties, the following issues were framed for trial:

1. Whether the plaintiff is entitled to the decree?

2. Whether the suit is not maintainable?

3. Whether the suit is barred by limitation?

4. Whether the plaintiff is entitled the arrears of salary?

5. Whether there is cause of action for the suit?

6. To what relief?

7. Whether the plaintiff is entitled of exclude the period under Section 14 of the Indian Limitation Act?

8. Whether the suit is barred by res judicala.

2. By judgment and decree dated 20th December, 1971, the learned Subordinate Judge of Erode held that during the period for which the respondent claimed salary, he was employed elsewhere and earned a sum of Rs. 2,663 and deducting that amount, for the balance he was entitled to a decree. Consequently the suit was decreed for a sum of Rs. 10,427 with subsequent interest. It is against this decree and judgment that the present appeal has been preferred by the defendant in the suit.

3. Though the issues detailed by me above were repetitive, the only question that really arose for consideration before the lower Court and which was arguee before me in the appeal, having regard to the earlier proceedings, was, whether the respondent herein was entitled to claim salary for the entire period of 119 months, deducting the sum of Rs. 2,663 which he earned by employment eleswhere or he was entitled only to the salary for a period of three years immediately preceding the institution of the suit; in other words, whether the respondent herein was entitled to the benefit of Section 14 of the Limitation Act, and if he was so entitled, whether any part of the claim made by the respondent was barred by limitation.

4. As I have pointed out already, the second appeal, S.A. No. 177 of 1963, was disposed of on 2nd January, 1967 and the present plaint itself was presented on 7th March, 1967. Therefore, there was no question of any delay after the disposal of the second appeal and before the filing of the present suit. Mr. N. Sivamani, learned Counsel for the appellant brought to my notice a decision of the Supreme Court in Rabindra Math Samuel Dawson. v. Sivakami and Ors. : AIR1972SC730 ., for contending that the respondent herein cannot claim the benefit of Section 14 of the Limitation. Act, because he could not be said to have bona fide prosecuted his claim for future salary in the earlier suit. Before I refer to this decision, I must make one point clear. 1 have already extracted a portion-of the judgment of this Court in S.A. No. 177 of 1963 and that portion proceeds on. the assumption that the plaint in the earlier suit, namely, O.S. No. 284 of 1957 did not ask for a decree for payment of salary subsequent to the date of the plaint. That assumption is not correct and having regard to the pleadings in. the earlier proceedings, both sides agree that the plaint in O.S.No. 284 of 1957 did contain a prayer for a direction to the appellant herein to pay future salary to the respondent till the date of his reinstatement. Therefore, that portion of the observation of this Court in the judgment in S.A. No. 177 of 1963 referred to above cannot be said to be accurate. It is against this background, I am considering the decision relied on by the learned Counsel for the appellant.

5. In the decision referred to above, a suit was filed for a declaration, that the orders setting aside certain revenue sales were without jurisdiction and void for nonconformity with Section 50 of the Travan core Revenue Recovery Act and on certain other grounds. The defendants took up a preliminary objection to the effect that the suit was not maintainable without making the Government a patty. That contention was negatived by the learned District Munsif. Against that decision, a revision petition was preferred. to the High Court and. when the matter came up, for hearing before the High Court, the learned Counsel for the plaintiff in that suit stated that the Government was not a necessary party to the suit, that the plaintiff was not prepared to implead the State as a party and that he was prepared to take the risk of not impleading the State as a party. On that representation by the plaintiff that he was prepared to the take risk of not impleading the State as a party, the High Court dismissed the revision petition. After the case was remanded, the District Munsif tried the suit, passed a decree in favour of the plaintiff and that decree in the suit was confirmed by the District Court on appeal. However, when the matter was taken up in second appeal, a Full Bench of the Travancore-Cochin High Court held that the Government was a necessary party and that by reason of the failure of the plaintiff to implead the Government, the suit was not maintainable, with the result the second appeal was allowed and the suit was dismissed. Thereafter, the plaintiff issued a notice under Section 80, Code of Civil Procedure, to the Government and filed a fresh suit. The question that came up for consideration was, whether for the purpose of filing the fresh suit, the plaintiff could claim benefit of Section 14 of the Limitation Act. The High Court held that having regard to the facts stated above, the plaintiff therein could not be said to have prosecuted his earlier suit bona fide and therefore he could not get the benefit of Section 14 of the Limitation Act. The High Court in that case observed:

From what we have stated above, it will be plain that the appellant took objection to the non-impleading of the Government as a party at the earliest possible opportunity. The respondents would not take note of that objection. They persisted in their attitude till ultimately the High Court of Travancore-Cochin held that the suit will have to fail for the non-impleading of the necessary party. A request was made to the High Court to permit the respondents herein to remedy the defect. The learned Judges held that they could not accede to that request and that the suit has to be dismissed 'as in spite of timely objection raised by the defendant on the ground of non-joinder of parties the plaintiff persisted in proceeding with the suit undertaking to bear the risk of not impleading the sircar'. This attitude on the part of the respondents is sufficient to dispose of the question of bona fides against them.

The Supreme Court, after extracting the above portion of the judgment observed:

The reasons given by the High Court are in our view cogent. Section 14 of the repealed Limitation Act which is applicable to this case gives benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of first appeal against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from the. defect of jurisdiction or other cause of like nature is unable to entertain it. The appellant's advocate points out that under Section 2(7) nothing shall be deemed to be done in good faith which is not done with due care and attention and that in this case the appellant was bona fide in purchasing the suit properties from an auction-purchaser who also purchased them in revenue sales bona fide and that without notice to either of them, the sale has been set aside which is totally without jurisdiction and injuriously affects the appellant. That the appellant was caught in this predicament may be unfortunate but in so far as the question whether he bona fide prosecuted the earlier suit and appeal there could be no two opinions on the undisputed facts which have been clearly and forcefully stated by the High Court. It is clear that no suit for declaration and possession could have been filed against the defendants in respect of the revenue sales which was (sic) set aside without impleading the Government. The objection as to the maintainability of the suit was taken at the very initial stage but that was resisted and the appellant invited a decision by the District Munsif. Even at the stage of revision against that order in the High Court, he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bona fide.

I am of the opinion that the above decision of the Supreme Court can have no application whatever to the facts of the present case. In the present case, no Objection whatever was taken to the claim of the respondent for a decree for future salary till the date of reinstatement either before the trial Court or even before the first appellate Court, notwithstanding the fact that the respondent and the appellant each preferred appeals before the first appellate Court against the portions of the decree passed against them. The objection was taken only before this Court in S.A. No. 177 of 1963 and that is admitted in the additional written statement filed in the present case. Therefore, unlike the case before the Supreme Court where the plaintiff expressed his determination not to imp lead the Government as a party and stated that he was prepared to take the risk of not impleading the Government as a party, in the present case, there was no such conduct on the part of the respondent herein, from which it could be said that the respondent was not bona fide prosecuting his claim for future salary from the date of plaint till the date of reinstatement.

6. On the other hand, another decision of the Supreme Court in India Electric Works Ltd. v. James Mantosh and Anr : [1971]2SCR397 , would appear to be in favour of the respondent herein, with regard to the scope of Section 14 of the Limitation Act. In that case, in a money suit for recovery of damages for illegal occupation, a decree had been passed by the trial Court in favour of plaintiff for the entire claim including the claim for future damages. The High Court in appeal negatived the claim for future damages on the ground that no decree could be granted for recovery of compensation after the date of the suit or after the date of the decree in a pure money suit. The plaintiff thereafter filed a suit for damages for the period subsequent to the period covered by the earlier suit. For the period beyond three years of the suit, protection from limitation was claimed under Section 14 of the Limitation Act and on the general principles of suspension of limitation owing to the pendency of earlier suit. The Supreme Court held that the plaintiff therein was entitled to the benefit of Section 14 of the Limitation Act. The claim in the present case is similar because the plaintiff claimed not only the arrears of salary with interest till the date of plaint, but also future salary from the date of plaint till the date of reinstatement. I have already held that the prosecution of that claim was bona fide.

7. Hence, the conclustion of the trial Court that the respondent herein was entitled to the benefit of Section 14 of the Limitation Act and that therefore no portion of the claim was barred by limitation is correct.

8. No other point was urged before me.

9. Under these circumstances, the appeal fails and is dismissed. There will be no order as no costs.