Punjab-Haryana High Court
Dharamvir Singh vs The Secretary To Government Of Haryana, ... on 20 January, 1993
Equivalent citations: (1993)105PLR374
JUDGMENT A.S. Nehra, J.
1. This appeal is directed against the judgment and decree dated 17.5.1984 passed by the District Judge, Rohtak, by which the appeal filed by the plaintiff-appellant was dismissed and the judgment and decree dated 24.1.1984 passed by the trial Court (dismissing the plaintiff-appellant's suit for declaration) was upheld.
2. The plaintiff-appellant joined the service as Steno-Typist in the office of the Executive Engineer, Electrical Division, in the year 1977. He was appointed on ad hoc basis and the letter of appointment was issued by the Superintending Engineer. The services of the plaintiff-appellant were terminated by the Executive Engineer on 17.7.1979. The plaintiff-appellant has challenged the order of dismissal, stating that the order is void, illegal, inoperative and without jurisdiction.
3. The defendant-respondents have admitted the plaintiff-appellant's appointment as a Steno-Typist, but they have asserted that he was appointed on ad hoc basis and his services were liable to be terminated at any time without any notice. It was further pleaded that the order of termination passed by the Executive Engineer was legal and valid. Preliminary objection has also been taken that the suit filed by the plaintiff-appellant is barred by limitation and that, since the plaintiff-appellant was appointed on ad hoc basis, therefore, he has no right to the post.
4. On the pleadings of the parties, the following issues were framed:-
(1) Whether the order dated 17.7.1979 is illegal, void and inoperative, as alleged in the plaint ? (2) Whether the suit is time-barred ?
(3) Whether the plaintiff was appointed temporarily ? If so, to what effect ? (4) Whether the Civil Court has no jurisdiction ?
(5) Relief.
5. The trial Court decided issue Nos. 1, 2 and 3 in favour of the defendants-respondents and against the plaintiff-appellant Findings on issue No. 4 was given in favour of the plaintiff-appellant and the suit filed by him was dismissed by the trial Court.
6. The learned counsel for the appellant, Mr. D.N. Tanwar, has submitted that the finding of the learned lower Courts that the suit of the plaintiff was barred by law of limitation, is not correct. According to his submission, the limitation would be 3 years and 2 months, because he has served notice under Section 80, Code of Civil Procedure, on the defendants-respondents on 26.6.1982. On the other hand, the learned counsel appearing for the defendants-respondents, Mr. J.V. Yadav, Deputy Advocate General, Haryana, has argued that once the limitation starts to run under Section 9 of the Limitation Act, 1963, both the main limitation and the period of notice would run together, if it is covered within that period.
7. Section 9 of the Limitation Act embodies the principle that once the time for filing suit or application starts running, it will continue to run till it has exhausted the full prescribed period. Sub-section (2) of Section 15 of the Limitation Act deals with the exclusion of period of statutory notices, such as those under Section 80, Code of Civil Procedure. The proper way to look after the matters is to take complete two months next after delivery of service of the notice. It is the admitted position that in this case the suit was filed on 6.9.1982 and the services of the plaintiff-appellant were terminated on 17.7.1979. So, the three years' period from 17.7.1979 will come to 16.7.1982. The notice under Section 80 of the Code of Civil Procedure was served on 26.6.1982 which is admitted. Therefore, from 17.7.1979, we have to minus 20 days in two months, because both the general limitation and the period of service of notice under Section 80 of the Code of Civil Procedure started to run together. So, the plaintiff-appellant can get benefit of only 40 days under Section 15(2) of the Limitation Act, which, if added to 17.7.1982, comes to 26.8.1982 by which date the suit should have been filed. The suit in the present case was filed on 6.9.1982.
8. The learned counsel for the appellant further submitted that the suit filed by the plaintiff-appellant is within time if two months are added after three years, i.e., the period of general limitation. In support of his argument, he has relied upon Virendra Kumar Khairulal Jaiswal v. K.L. Aney, A.I.R. 1976 Bombay 125.
9. Mr. J.V. Yadav, learned, Deputy Advocate General Haryana, has submitted that Section 9 of the Limitation Act embodies the principle that the time for filing suit or application starts running, it will continue to run till it has exhausted the full prescribed period. Where notice under Section 80 of the Civil Procedure Code is given before expiry of general limitation, the period of notice will run concurrently with the general limitation. Thus, the limitation will be extended by days which would remain in balance after deducting the days of notice period which ran concurrently with period of general limitation. In the instant case, therefore, when both the provisions of the Limitation Act, i.e., Section 9 and Section 15(2) of the said Act, are harmoniously construed, it would imply that the appellant is entitled to have benefit of 40 days only under Section 15(2) of the Limitation Act, which, when added to 16.7.1982, comes to 25.8.1982 on which date the suit ought to have been filed. The suit admittedly having been file don 6.9.1992, would be barred by law of limitation by 11 days. In support of his argument, the learned Deputy Advocate General, Haryana, has placed reliance on a judgment reported as M/s. National Coal Development Corporation Ltd. v. Union of India and Anr.2 AIR 1988 Patna 338. Virendra Kumar Khairulal Jaiswal's case (supra) is distinguishable on facts. It was agreed in that case by both the parties that, in case the provision of Section 146-A of the Bombay Prohibition Act does not exclude applicability of serving notice under Section 80 of the Code of Civil Procedure, then two months are to be added to the period of limitation prescribed for filing the suit. Section 9 of the Limitation Act, "reads as under:-
"Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it:
Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues."
The provisions of Section 9 of the Limitation Act were not brought to the notice of the learned Judges, therefore, Virendra Kumar Khairulal Jaiswal's case (supra) is not applicable to the facts of the present case. M/s. National Coal Development Corporation Limited's case (supra), relied upon by the learned counsel for the respondents, is fully applicable to the facts of the present case. The suit filed by the plaintiff-appellant on 6.9.1982 is barred by law of limitation and, therefore, the same is liable to be dismissed.
10. In view of the above discussion, there is no merit in the appeal and the same is dismissed.