Orissa High Court
Rudramohan Mohapatra vs L.I.C. Of India And Ors. on 13 October, 2006
Equivalent citations: 103(2007)CLT49
Author: M.M. Das
Bench: M.M. Das
JUDGMENT M.M. Das, J.
1. This second appeal has been preferred by the plaintiff in O.S. No. 151/95-1 filed before the Learned Civil Judge (Senior Division), Bhubaneswar. The said suit was filed by the plaintiff for decree declaring that the order passed by the defendant No. 1 being the Life Insurance Corporation of India, represented by its Senior Divisional Manager, rejecting the Leave Travel Concession bill submitted by the plaintiff, as illegal and invalid in law and for decree for permanent injunction against the defendants restraining them from deducting the advance amount drawn by the plaintiff for the journey undertaken by his family members, which was sought to be deducted from his salary and for other ancillary reliefs.
2. The plaintiff's case in brief was that he was a Class-I Officer of the Life Insurance Corporation of India (in short 'the L.I.C.) and was entitled to Leave Travel Concession (in short 'L.T.C.') along with his family members as per the rules. He availed one such L.T.C. for the year, 1992 for his family members for which he submitted a tour programme before the defendant No. 1 which was accordingly approved. The family members of the plaintiff travelled by a taxi hired from Sony Travels at Bhubaneswar, which is an approved/recognized travel agency of the L.I.C. of India. The plaintiff drew an advance of Rs. 25,000/- for the said journey and after completion of the tour, submitted his L.T.C. bill on 12.11.1993 along with the bill of the Travels Agency, before the competent authority, for passing the same. On 3.2.1994, the defendant no.2 who is the Manager, Office Servicing, L.I.C. of India, wrote a letter to the plaintiff that the L.T.C. bill submitted by him has been disallowed as it had certain irregularities. On 10.2.1994, the plaintiff wrote back to the L.I.C. that rejection of his L.T.C. bill is illegal, as no reason has been assigned for rejecting the same and the said bill was submitted in accordance with the rules. On 23.4.1994, the defendant No. 2 intimated that his L.T.C.-bill is being reviewed and the decision would be taken by the competent authority which would be intimated to him. About a year thereafter on 23.3.1995, the defendant No. 1 intimated the plaintiff that his L.T.C. claim has been rejected by the Zonal Office directing the plaintiff to refund the advance taken by him and if he does not refund the same, the said amount would be recovered from his salary. It is the case of the plaintiff that he being an Executive Member of Class-I Officers' Union of L.I.C, his bill was rejected out of grudge and there was absolutely no reason for rejecting the same. On these pleadings, the plaintiff sought for the reliefs as stated earlier.
3. The defendants contested the suit by filing a written statement denying all the allegations made in the plaint and claimed for dismissal of the suit. They pleaded that the suit was not maintainable in law and there is no cause of action to file the suit. It was also pleaded by the defendants that the L.T.C. bill of the plaintiff has been rightly rejected and instead of making a representation to the Appellate authority of the L.I.C, the plaintiff has filed the suit and the Court has no jurisdiction to decide the suit, as the said suit is barred under the proviso to Section 34 of the Specific Relief Act.
4. The Learned Trial Court on the above pleadings of the parties framed the following issues:
1. Whether the suit is maintainable?
2. Whether the plaintiff has cause of action to file the suit?
3. Whether the suit is bad for nonjoinder of necessary parties?
4. Whether this Court has jurisdiction to try the suit?
5. Whether the suit is barred Under Section 34 of the Specific Relief Act?
6. Whether the order passed by Defendant No. 1 on 23.4.95 intimating the plaintiff that the Zonal Office has rejected his L.T.C. claim and to repay the advance amount failing which amount will be recovered the advance from his salary, is illegal and invalid?
7. Whether the plaintiff is entitled to the reliefs sought for?
5. The-Learned-Trial Court after hearing the suit by its judgment dated 8.3.2000, came to the following findings of the fact:
1. It is the admitted case that the defendant No. 1 is the competent authority to pass and reject the L.T.C. bill of the plaintiff and the zonal office is admittedly the Appellate authority.
2. No reason was assigned for rejection of the L.T.C. bill of the plaintiff inasmuch as the plaintiff was not afforded with an opportunity to substantiate his claim.
3. M/s. Sony Travels is an approved Travel Agency of the L.I.C. of India and the plaintiff hired a vehicle from the said Travels for the journey undertaken by his family members.
4. The proposal for availing L.T.C, which was submitted by the plaintiff to the defendant No. 1 was duly approved by the defendant No. 1. The plaintiff paid Rs. 36,014/- to M/s Sony Travels vide Ext. B on the basis of the bill of the said IW Section Sony Travels marked as Ext. C.
5. M/s. Sony Travels being an approved Travel Agency of the L.I.C. of India, the defendants are estopped from contending that the said Travels did not possess an All India Road Permit.
6. On the above findings of fact and holding that the suit is not barred under Section 34 of the Specific Relief Act as contended by the defendants, the Learned Trial Court by the aforesaid judgment decreed the suit of the plaintiff-Appellant on contest against the defendants, declaring that the order passed by the defendant No. 1 informing the plaintiff about the rejection of the L.T.C. bill by the zonal office, without assigning any reason and without giving any chance to the plaintiff to explain the matter and without considering the documents filed by their own Travel Agency, is illegal and void and further decreeing the suit by directing that the defendants are permanently, restrained from deducing any amount from the dues of the plaintiff in regard to the L.T.C. claim of the plaintiff.
7. The respondents being aggrieved by the judgment and decree passed by the Learned Trial Court preferred Title Appeal No. 6 of 2000 before the District Judge, Khurda at Bhubaneswar.
8. The Learned lower Appellate Court on hearing the parties by its judgment dated 20.2.2001 reversed the judgment and decree passed by the Learned Trial Court. From the judgment of the lower Appellate Court, it transpires that the Learned lower Appellate Court relying on the letter of the Secretary, State Transport Authority, Orissa, Cuttack dated 20.1.1994 marked as Ext. F, wherein it is stated that Taxi No. OR-02B-3535 in which family members of the plaintiff travelled to different places was not issued with an All India Road Permit, came to the finding that the said letter belies the case of the plaintiff that his family members travelled in the said Taxi to various places of North and South India. As a matter of fact, the Learned lower Appellate Court by considering that the number of members who allegedly undertook the journey in the Taxi in question, which is an Ambassador Car, is improbable, came to the conclusion that the journey was never undertaken. Be it is stated here that it was not the case of either of the parties that the family members of the plaintiff never undertook the journey in question. This Court is, therefore, of the view that the finding of the Learned lower Appellate Court that the fact as revealed from the record speaks eloquently that the journey was never performed, is a third case made out by the said lower Appellate Court which it was not entitled to make under law. It is trite to mention that a Court of fact is not entitled under law to make out a third case which is not the case of either of the parties before it. In that view of the matter, finding of the Learned lower Appellate Court holding that the family members of the plaintiff never undertook the journey, is unsustainable and the said finding is accordingly set aside. Though the above finding is a finding of the fact and this Court should not interfere with the same in a Second Appeal preferred under Section 100 of the Code of Civil Procedure, but as the said finding makes out a third case, which is not the case of any of the parties to the lis, this Court has no hesitation in coming to the conclusion that the Learned lower Appellate Court has acted without jurisdiction in coming to the above finding and the question as to whether a finding of the Court below is passed without jurisdiction, is a question of law which this Court can examine in a Second Appeal.
9. The only other point, which has been considered by the Learned lower Appellate Court to reverse the judgment and decree of the Learned Trial Court, is with regard to the question as to whether the suit is barred under Section 34 of the Specific Relief Act. On examining the said point, the Learned lower Appellate Court has come to the conclusion that the suit is hit under Section 34 of the Specific Relief Act and reversed the finding of the Learned Trial Court with regard-to the said question and ultimately dismissed the suit filed by the plaintiff-Appellant by allowing the appeal.
10. Now that this Court has set aside the finding of the lower Appellate Court to the effect that the family members of the plaintiff did not undertake the journey for which the plaintiff filed his L.T.C. bill which is the subject matter of the suit, the only other point that remains for consideration is to whether the suit is hit under Section 34 of the Specific Relief Act.
11. This appeal has been admitted on the above substantial question of law and the parties were heard on the said question. Section 34 of the Specific Relief Act reads as hereunder:
Discretion of Court as to declaration of status or right:-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
12. The Learned lower Appellate Court while considering the above question after quoting Section 34 of the Specific Relief Act has held as follows:
In the present case the plaintiff-Respondent has preferred a claim of Rs. 27,367/- including the advance of Rs. 25,000 taken and as such the balance amount of Rs. 2,367/- remains to be reimbursed. In the circumstances, the plaintiff - Respondent should have preferred a money suit for realization of the balance amount.
8. It is the settled principle of law that a Court will not grant a declaration if the real object is to get a declaration which will enable the plaintiff hereafter to seek further relief to which the plaintiff is at present entitled A.I.R. 1917 PATNA 633.
13. From the above findings, it appears that the Learned lower Appellate Court without making a holistic approach to the pleadings as set-out in the plaint came to its own conclusion by wrongly interpreting the reliefs claimed by the plaintiff to be a money claim.
This can be amply clarified by perusing the prayer portion of the plaint, which is as follows:
Therefore it is prayed:
i) let it be declared that the order passed by the Defendant No. 1 rejecting the L.T.C. bill is illegal and invalid in the eye of law,
ii) the Defendants be permanently restrained not to deduct the advance amount drawn by the plaintiff from his salary,
iii) the cost of the suit be decreed against the defendants,
iv) any other relief or reliefs to which the plaintiff is entitled to under law.
14. Thus it would be clear from the above prayer made in the plaint that as a matter of fact, the plaintiff has not claimed for payment or for the recovery of any amount from the defendants. Rather the plaintiff has sought for a declaration declaring that the order passed by the defendant No. 1 rejecting the L.T.C. bill is illegal and invalid in the eye of law. The plaintiff has also prayed for a consequential relief of permanent injunction by restraining the defendants from deducting any amount from the salary of the plaintiff towards advance amount drawn by him before his family members undertook the journey.
15. Proviso to Section 34 of the Specific Relief Act as quoted above, envisages that a pure and simple suit for declaration cannot be maintained where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.
16. The said proviso, therefore, clearly speaks of a relief of declaration of title and consequential reliefs thereon. It, however, transpires that the declaration sought for in the suit, by the plaintiff is not a declaration as contemplated in the proviso to Section 34 of the Specific Relief Act. In the case of Lt. Col. G.S. Dutta v. Union of India AIR 1966 JAMMU & KASHMIR 124, it has been held that in a suit for declaration that the plaintiff is entitled to pension at higher rate, omission to seek consequential reliefs, does not disentitle the plaintiff to seek declaratory decree because the plaintiff has a recurring cause of action for enhanced rate of pension in future also. In the case of Vemareddi Ramaraghave Reddy and Ors. v. Conduru Seshu Reddy and Ors. , the Supreme Court held that Section 42 of the old Specific Relief Act corresponding to Section 34 of the new Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be passed and the Courts have power to grant such a decree independent of the requirements of the said Section. Thus, it is clear that the power of the Court to grant a declaratory decree is not confined under Section 34 of the Specific Relief Act. It is no doubt true that where the matter falls within the purview of the said Section 34 of the Specific Relief Act, declaration can only be made in accordance with the provisions thereof. But when the declaration claimed is in respect of the matter not strictly within the purview of Section 42 (new Section 34), the Court has power to grant a decree independent of the requirements of the said Section.
17. Keeping in view the above position of law and on examining the nature of declaration sought for by the plaintiff in the suit, this Court has no hesitation to hold that the suit as laid down by the plaintiff is not hit by the proviso to Section 34 of the Specific Relief Act and the finding of the Learned lower Appellate Court in regard to the above question holding that the suit hit under Section 34 of the Specific Relief Act, cannot be sustained and is accordingly set aside.
18. In the result, the judgment and decree dated 20.2.2001 and 13. 3. 2001 respectively passed by the lower Appellate Court in Title Appeal No. 6 of 2000 is set aside and the judgment and decree dated 8.3.2000 and 24.3.2000 respectively passed by the Learned Trial Court in O.S. No. 151/95-1 is restored.
19. The Second Appeal is, accordingly, allowed but in the circumstances, the parties will bear their respective costs of this Second Appeal.