Punjab-Haryana High Court
Avtar Singh vs Punjab State And Ors. on 28 July, 1993
Equivalent citations: (1993)104PLR456
JUDGMENT S.K. Jain, J.
1. Avtar Singh was recruited as a Constable in the Punjab Armed Police on 14.5.1965. He fell ill and remained admitted in different hospitals. Although he had applied for leave but no intimation was received by him regarding sanction or refusal. He, therefore, presumed that the leave had been sanctioned. A departmental enquiry was conducted against him and he was dismissed from service on 12.4.1978, under the orders of the Deputy Commandant, 9th Battalin, P.A.P. Jalandhar. He challenged the said order of his termination by filing Civil Suit No. 113 of 20.4.1981. Shri G. C. Suman, Additional Senior Sub Judge, Barnala, dismissed the suit after recording evidence of the parties on various issues framed by him and hearing their counsel. The judgment and decree dated 21.2.1983 of the Additional Senior-Sub Judge, Barnala, was challenged by the plaintiff in Civil Appeal No. 45 of 1983, which was dismissed by Shri Hira Lal Garg, Additional District Judge, Barnala, vide his judgment and decree dated 28.2.1985 The matter did not rest here and the plaintiff has brought this regular second appeal.
2. I have heard Shri Anand Swaroop, learned Senior Advocate with Shri Alok Jain, Advocate, for the appellant and Mr. M. S. Boparai, Assistant Advocate General, Punjab, for the respondents and have gone through the record.
3. On Issue No. 1, the learned Additional Senior Sub Judge found that the Deputy Commandant, P.A P and the Deputy Inspector General of Police, P.A.P., were of the rank of Superintendent of Police and enjoyed the same powers regarding the appointment and dismissal of the Constables of the Police Department The order of termination of the services of the plaintiff passed by the Deputy Commandant, 9th Battalion, P.A.P., Jalandhar, was valid. However, the learned first appellate Court reversed these findings holding that the Constables were recruited by the Deputy Inspector General of Police whereas the order of dismissal of the plaintiff was passed by the Deputy Commandant and, therefore, the impugned order was illegal.
4. Issues Nos. 2 and 3 were not pressed before the learned trial Court but before the learned first appellate Court, no arguments were addressed on Issue No. 2, whereas the jurisdiction of the civil Courts at Barnala to entertain an j try the suit was seriously challenged. The learned first appellate Court found on Issue No. 3 that the Courts at Barnala had no territorial jurisdiction to entertain and try the suit. On Issue No. 4, with regard to limitation, both the Courts below have concurrently found that the suit was barred by limitation.
5. The first argument advanced before me on behalf of the appellant is that the impugned order was passed on 12-4 1978 whereas the suit was instituted on 15-4-1981, after serving notice under Section 80 of the Code of Civil Procedure and in view of the provisions of Section 15(2) of the Limitation Act, 1963, the suit was well within limitation.
6. In order to appreciate this argument, it is expedient to examine the provision of Section 15(2) of the Limitation Act, which is reproduced below :
"15. Exclusion of time in certain other cases.--
X X X X X (2) in computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required in accordance with the requirements of any law for the time being in force, the period of such, notice or, as the case may be the time required for obtaining such consent pr sanction shall be excluded.
X X X X X Analytical examination of the above provision would show that while computing the period of limitation for any suit of which notice has been given in accordance with the requirement of any law for the time being in force (Section 80 CPC herein), the period of such notice shall be excluded Identical matter was considered by the Supreme Court in Amar Chand Inani v. Union of India, A. A. R. 1973 S. C. 313 Vide para 7 of the report, it was held that Section 80 C. P.C. only prescribed a condition precedent for the institution of the suit and has nothing to do with the period of limitation for a suit except that under Section 15(2) of the Limitation Act, the period of notice can be deducted in calculating the period of limitation. The above said judgment of the Supreme Court was followed by the Patna High Court in Union of India v. Tata Engineering & Locomotive Co, Ltd, A. I. R. 1989 Pat. 272. The impugned order was pas ed on 12-4-1978. The suit was instituted on 15-4.1981, after serving notice under Section 80, C.P.C, it was certainly within Imitation in view of the provisions or Section 15(2) of the Limitation Act and the ratio laid down in Amar Chand Inani's case (supra)
7. The second submission of the learned counsel for the appellant is that the impugned order was communicated to the plaintiff-appellant at Barnala at his home address and, therefore, the cause of action having arisen to him at Barnala, the civil Court at that place had territorial jurisdiction to try the suit. In reply, Mr. Boparai, learned Assistant Advocate General, Punjab, has argued that the plaintiff was recruited at Jalandhar, he remained posted there and the impugned order was also passed and communicated to the plaintiff at Jalandhar, and, therefore, the Courts at Barnala had no jurisdiction.
8. On perusal of the record, it is revealed that letter dated 18-4-1978 vide which the impugned order was communicated to the plaintiff was received by him at Barnala. Shri Anand Swaroop, learned Senior counsel for the appellant has submitted that perusal of pars No. 7 of the judgment of the learned trial Court shows that issue No. 3 with regard to jurisdiction was not pressed on behalf of the defendants and, therefore, such objection could not be entertained by the first appellate Court in, the absence of evidence of failure of justice in consequence of trial in wrong Court.
9. I have given a thoughtful consideration to the rival arguments. It is true that except the impugned order having been served on the plaintiff at Barnala, no part of the cause of action had arisen to him there Be that as it may, the fact remains that there is nothing on the record to show that consequent, upon the entertainment and trial of the suit by the Civil Court at Barnala, there had been a failure of justice. Otherwise also, the finding of the learned trial Court is that Issue No. 3 with regard to jurisdiction was not pressed on behalf of the defendants at the time of arguments before that Court Section 21, C. P.C. provides that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been consequent failure of justice.
10. Identical question came up for consideration before the Supreme Court in Koopllan Uneen's daughter Pathumma and Ors. v. Koopilan Uneen's Son Kuntalan Kutti and Ors., A. I. R. 1981 S. C. 1683, wherein it was held that in order that an objection to the place of suing may be entertained by an appellate or revisional court, the fulfilment of the following three conditions is essential :
(1) The objection was taken in the court of first instance.
(2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement.
(3) Tnere has been a consequent failure of justice.
11. All these three conditions must co-exist. When the facts of the instant case are tested on the anvil of the above ratio, I find that no doubt this obje tion was taken in the Court of first instance at the earliest possible opportunity before the settlement of the issues and, therefore, Issue No. 3 was framed on this point although the same was not pressed before the Courts below But, there is nothing on the record to show that there has been a consequent failure of justice. Thus, the third condition having not been fulfilled, the first appellate Court could not entertain the objection that the civil Court at Barnala had no jurisdiction to try the suit.
11. Now on to the third argument of the learned counsel for the appellant. The finding of the learned first appellate Court on Issue No. 1 to the effect that the impugned order dated 12-4-1978 passed by the Deputy Commandant was illegal and void, has not been challenged before this Court in any manner on behalf of the State. Otherwise also, DW 1, Om Parkash Ghai, has admitted that the appointment of the plaintiff as Constable in the P.A.I, was made by the Commandant and that the order of termination was passed by the Deputy Commandant. A Deputy Commandant is certainly lower in rank as compared to the Commandant. Therefore, the learned first appellate Court has rightly held that the impugned order could not be passed by Shri Kulwant Singh, who was not an authority competent to dismiss the plaintiff from service. No fault can be found with this finding of the first appellate Court and the same is affirmed.
12. As a sequel to the above discussion, the findings of the first appellate Court on issues No. 3 and 4 are reversed. The appeal is accepted and the suit of the plaintiff is decreed. However, there will be no order as to costs.