Orissa High Court
Sanghamitra Jena vs The Director Of Higher Education, ... on 2 August, 2002
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. These two appeals have been filed by the Plaintiff-appellant against a reversing judgment.
2. The appellant filed T.S, No, 217/1996 in the Court of the learned Civil Judge (Sr. Division), Bhubaneswar for a declaration that the action of the defendant-respondents in preventing her from discharging duty as a Lecturer in Economics (First Post) in Biju Pattnaik College of Science and Education, Bhubaneswar is illegal, invalid and inoperative and for a further declaration that she is deemed to be continuing as a Lecturer in Economics in the said College and for permanent injunction restraining the defendant-respondents from filling up the post of Lecturer in Economics (First Post) and not to allow direct payment of grant-in-aid of higher education to any one other than her and for all consequential benefits.
3. The case of the plaintiff-appellant is that she was appointed as a Lecturer in Economics in Biju Pattnaik College of Science and Education, Bhubaneswar on 89 days basis on 1.2.1988. Having been appointed to the post the appellant joined on 2.2.1988. On 4.7.88 the Governing Body of the College issued regular appointment letter in her favour and the appellant was allowed to continue in her post. But on 15.7.89 suddenly the Governing Body did not allow the appellant from discharging her normal duty in the College and the then Secretary of the Governing Body prevented her from discharging duties. Thereafter, she made representations to the higher authorities and having failed to get any order in her favour, she approached this Court in O.J.C. No. 4523 of 1992 challenging the action of the Governing Body through it's Secretary. On 11.4.1994 the said writ application was disposed of with an observation that the appellant may approach the Civil Court since the questions involved are basically disputed questions of fact. After the writ was disposed of, she filed the suit on 19.8.1994 with the above prayers. The said suit was decreed in part against defendant Nos. 1, 4 and 5 on contest and ex parte against the rest of the defendants. The learned Civil Judge found the action of defendant No. 1 Management in preventing the appellant from discharging her duty as illegal, invalid, and inoperative and it was further declared that the appellant shall be deemed to be continuing in service and the Management was directed to allow all consequential benefits treating her as a regular employee.
4. One Subash Ch. Pradhan who was defendant No. 4 in the suit preferred an appeal challenging the judgment of the learned Civil Judge (Sr. Division) which was registered as T.A. No. 21/1998. The Governing Body of the College-defendant No. 1 also challenged the said judgment in appeal which was registered as T.A. No. 22/98 before the learned District Judge, Bhubaneswar. Both the appeals were heard together and disposed of in a common judgment. The learned District Judge though agreed with the findings of the trial Court allowed the appeal and dismissed the suit solely on the ground of limitation. Challenging the said judgment of the learned District Judge, the present Second Appeals have been filed. After notice a cross appeal has been filed by the said Subash Ch. Pradhan who is respondent No. 3 before this Court and the said cross appeal is also taken up for hearing along with the present Second Appeals.
5. Both the Second Appeals involve the following substantial questions of law ;
"(b) Whether the finding of the learned lower appellate Court that the period from 6.1.95 to 17.6.96 cannot be excluded for the period of limitation and therefore the suit is not maintainable is a clear error of record particularly when the learned lower appellate has not taken into consideration the pendency of T.S. No. 143/94 from 19.8.94 till 17.6.96.
(c) Whether in view of the fact that the plaintiff has been prosecuting T.S. No, 143/94 with due deligence and therefore in view of Section 14 of the Limitation Act, the learned lower appellate Court should have excluded the said period from limitation but the lower appellate Court having not considered the said period in terms of Section 14 of the Limitation Act, the finding of the learned appellate Court is not sustainable.
(e) Whether in view of the finding of the learned lower appellate Court that the certified copy of the order of this Hon'ble Court has been delivered to the plaintiff on 6.1.95 and the suit has been filed on 17.6.96, the learned lower appellate Court ought to have taken into consideration the period from 19.8.94 the date when the plaint in T.S. No. 143/94 was presented and till 17.6.96 the date when the plaint was returned back to the plaintiff for proper presentation in the appropriate court and had it been taken into consideration by the learned lower appellate Court the suit could not have been dismissed on the ground of limitation."
6. Shri B. Routray, learned counsel appearing for the appellant in both the appeals challenged the findings of the lower appellate Court with regard to limitation as erroneous and an error of record. According to Shri Routray there is absolutely no limitation involved in the case and the suit had been filed within the prescribed period of limitation. Referring to the orders passed by this Court in the writ application, the orders passed by the learned Munsif before whom the first suit was filed and also referring to the orders of the learned Civil Judge (Sr. Division) he submitted that if the period consumed during pendency of the writ application and pendency of the suit before the Munsif are taken into consideration and excluded for the purpose of computation of period of limitation, the suit is within time. Shri Routray further submitted that while deciding the appeal on the question of limitation, the lower appellate Court did not take into consideration the period consumed during pendency of the suit before the learned Munsif, Bhubaneswar. Because of lack of pecuniary jurisdiction, the plaint was returned by the learned Munsif and the same was presented before the learned Civil Judge (Sr. Div.). Had the said period been taken into consideration and excluded, taking aid of Section 14 of the Limitation Act the lower appellate Court should have come a finding that the suit is not barred by time.
7. Shri Sinha, learned Counsel appearing for the respondents and Dr. Panda, learned Counsel appearing for the Governing Body supported the finding of the lower appellate Court on the question of limitation and submitted that period of limitation started from 15.7.89 when the first cause of action arose and even if the period consumed during pendency of the writ application before this Court is excluded, the suit should have been filed some time in May, 1994. On the other hand, the suit having been filed in the month of August, 1994, it was clearly barred by time. The period consumed during pendency of the suit before the learned Munsif cannot be taken into consideration as by that time limitation for filing the suit had already expired.
8. Keeping in mind the substantial questions of law on which the appeals have been admitted and the submissions made by the counsel appearing for the parties, in order to decide the question of limitation, I feel it necessary to refer to the prayer made in the plaint. The plaintiff-appellant in the suit has prayed for a declaration that the action of the management defendant No. 1 in preventing the plaintiff-appellant from discharging her duty as a Lecturer in Economics (First Post) in the concerned College is illegal, invalid and inoperative. A further prayer has been made to declare that the plaintiff is deemed to be continuing as a Lecturer in Economics in the said College and for permanent injunction restraining the defendant Governing Body from filling up the post of Lecturer in Economics (First Post) held by the Plaintiff-appellant. In a suit for such declaration what will be the period of limitation has been decided by the Apex Court in the case of State of Punjab and Ors. v. Gurdev Singh and Anr. reported in AIR 1991 SC 2219. in the aforesaid case the respondent was appointed as an ad hoc Sub-Inspector in the District Food and Supply Department of Punjab State. He absented himself from duty for certain period and his services were terminated. He filed the suit for declaration that the order of dismissal or termination from service passed against him is wrongful and illegal, The Apex Court while considering the question of limitation observed that it cannot be said that there is no limitation for instituting the suit for declaration by a dismissed or discharged employee on the ground that his dismissal or discharge was void or inoperative. If suit is not covered by any of the specific articles prescribing a period of limitation, it must fall within the residuary article. The purpose of the residuary article is to prove for cases which could not be covered by any other provision in the Limitation Act. The party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for. Ultimately, the Court came to a conclusion that the period of limitation in such type of suit shall be governed by residuary Article 113. Undoubtedly, the prayers made in the plaint are not covered by any of the specific articles prescribing a period of limitation and obviously it has to fall within the residuary Article 113, which prescribed that the period of limitation for filing such suit shall be three years. Now the question that arises for consideration is as to whether the suit had been filed within the said prescribed period of limitation. As per the averments made in the plaint the cause of action first arose on 15.7.1989 when the plaintiff was prevented from discharging her duties by the Governing Body-defendant No. 1. The cause of action again arose on 14.9.91 when the grievances of the plaintiff to the aforesaid effect were turned down by the authorities and again on 11.4.94 when the writ application filed by the plaintiff was disposed of. It was argued by Dr. Panda, learned counsel appearing for the Governing Body that If three years period of limitation has to be calculated from the date the cause of action first arose i.e. from 15.7.89, the suit should have been filed on or before 15th of July, 1992. Admittedly, challenging the conduct of the Governing Body dt. 15.7.89 the plaintiff had approached this Court in O.J.C. No. 4523/1992 and the said writ application was filed on 25.6.92 before expiry of three years from the date the first cause of action arose. The said writ application was disposed of by this Court on 11.4.94. According to Dr. Panda if the period from 25.6.92 till 11.3.94 is excluded for the purpose of computation of limitation taking help of Section 14 of the Limitation Act, still then the suit should have been filed by end of April or 1st of May. The suit having been admittedly filed in August, 1994, it was clearly barred by time. Same argument was also advanced by Shri Sinha, learned counsel appearing for contesting respondent. Shri Routray on the other hand submitted that the question of limitation was an issue in the trial court and the said issue having not been pressed, there was no further scope to raise the issue again before the lower appellate court. According to Shri Routray the question of limitation is not a pure question of law and is a question of mixed facts and law. Issue having not been pressed before the trial court the same cannot be treated as a pure question of law to be agitated before the lower appellate court.
9. In connection of the above submission, reference may be made to a decision of this court reported in AIR 1960 (Orissa) 146 (Sheikh Makbul v. Union of India and Anr.) :
"where issues such as jurisdiction and limitation, as questions of pure law, are Involved, the right to raise an issue cannot be treated as having been waived. Objections regarding limitation cannot be waived and even if they are waived they can be taken up again by the parties waiving them or by the courts themselves. That apart, when such issue cuts at the very root of a litigation and if the court's attention is drawn to it, it must take cognizance of the same and give its decision thereon, AIR 1928 Mad. 900 and ILR 25 Mad. 367 (PC) and AIR 1936 Cal. 382 and AIR 1921 Cal. 661, Disting."
Reference may also be made to a decision of Bombay High Court reported in AIR 1991 Bombay 35.
"Under Section 3 it is the duty of the court to consider as to whether the suit is barred by limitation or not even if no such defence is taken by the defendant. Therefore, there cannot be waiver against the provisions of limitation. There also cannot be any estoppel which could be pleaded by the plaintiff successfully."
It is clear from the above two decisions that there cannot be any waiver or estoppel against the plea of limitation. Section 3 of the Limitation Act also clearly provides that subject to provision contained in Section 4 to 24 of the Act, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. In view of the clear provision in Section 3 of the Act as well as the decision of this Court and Bombay High Court as referred to above. I do not find any merit in the contention of the learned counsel for the appellant that the question of limitation having not been pressed before the trial court cannot be agitated before the lower appellate Court. It is the duly of the court to see whether the suit is filed within the prescribed period of limitation even if no such defence is taken as a plea in the written statement. If the suit is found to be barred by limitation the court has to dismiss the same even if limitation is not set up as a defence. Therefore, the lower appellate court in taking up the question of limitation for decision in spite of the fact that the same was not pressed before the trial court has not committed any illegality and it was fully justified in deciding the said question.
10. Coming to the facts of the case with regard to limitation, Shri Routray submitted that after disposal of the writ application directing the plaintiff to file a suit, initially the suit was filed In the court of the learned Civil Judge (Jr. Division), Bhubaneswar on 19.8.94. The defendant No. 1 Governing Body filed It's written statement before that Court and when the Court found that it has no pecuniary jurisdiction to entertain the suit, the plaint was directed to be returned for presentation before the appropriate Court. After the order was passed the plaintiff took return of the plaint on 17.6.96 and presented it before the learned Civil Judge (Sr. Divn.), Bhubaneswar on the very same day. He further submitted that it is evident from the order sheet of the trial Court that on 17.6.96 the plaint was received on being returned by the Civil Judge (Jr, Divn.), Bhubaneswar. According to Shri Routray, if the period consumed from 19.8.94 till 17.6.96 is excluded there shall be no question of limitation involved in the suit and the learned lower appellate court having not taken this period into consideration came to an erroneous finding that the suit was barred by time. I am also unable to agree with the submission of learned counsel Shri Routray in this aspect. Even if the period between 19.8.94 and 17:6.96 is taken into consideration and excluded the suit still remains time barred as the same had been presented before the learned Civil Judge (Jr. Divn) after expiry of three years. Admittedly, the first cause of action arose on 15.7.89 when the plaintiff was prevented by defendant No. 1 from discharging her duties. If the same is taken to be the cause of action the suit should have been filed on or before 15.7.92. Instead of filing a suit, the plaintiff filed a writ application before this Hon'ble Court on 25,6.92 i.e. after expiry of 2 years 11 months and 9 days. The writ application was disposed of on 11.4.94. Therefore, the suit should have been filed within the balance 21 days i.e. by 1st of May, 1994. The suit having been filed in month of August 1994 it was clearly barred by time. I have taken the above view as the first cause of action arose first on 15.7.89 and right to file the suit accrued on the said date and accordingly, the period of limitation of three years has to be calculated from the said date. Shri Routray, learned counsel appearing for the appellant on the question of date of cause of action referred to a decision of this Court reported in 1975 ILR Cuttack 729 (Narayan Nanda v. Sankar Sahu) and submitted that the cause of action has to be ascertained from bundle of facts and mere mentioning a wrong date as cause of action shall not be fatal to the case. He also relied upon another decision of Privy Council in the case of Mohammad Khalil Khan and Ors. v. Mahbub Alt Mian and Ors. reported in AIR (36) 1949 Privy Council 78 and submitted that the cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks to Court to arrive at a conclusion. He also relied upon another decision of the Madras High Court in the case of P. Appa Rao and Ors. v. Secretary of State reported in AIR 1938 Madras 193 and submitted that when there is successive denials of title, the owner may ignore any particular denial and can base his cause of action on any fresh denial.
Coming to the facts of the case if a reference is made to the plaint one finds three dates of cause of action. The first date is 15.7.89 when the plaintiff was prevented by the defendant No. 1 from discharging her duties, the second date of cause of action is 14.9.91 when the grievances of the plaintiff was turned down and the third date of cause of action is 11.4.94 when the writ application was disposed of. In my view, the first cause of action i.e. stated to have taken place on 15.7.89 should be the date from which a limitation has to be calculated as on that date, the right to sue accrued in favour of the plaintiff. So far as second date of cause of action is concerned there is absolutely no material on record except the pleading in the suit that the grievance of the plaintiff was turned down by the higher authorities on the said date. The third date of cause of action as mentioned in the plaint i.e. 11.4.94 cannot be taken into consideration for the purpose of computation of limitation on the said date the writ application was disposed of by this Court directing the plaintiff to approach the civil court. The right to sue having accrued only on 15.7.89 the period of limitation has to be calculated from that date. This view of mine gets support from the decision of this Court in the case of Narayan Nanda v. Sankar Sahu (Supra).
Shri Routray further relied upon a decision of the Apex Court in the case of Collector Land Acquisition and Anr. v. Mst. Katiji and Ors. reported in AIR 1987 S.C. 1353 and submitted a technical question such as limitation should be liberally dealt with and the delay, if any, in filing the suit should be condoned. The Apex Court in the said decision while dealing with the powers of the court under Section 5 of Limitation Act observed as follows :
"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts, it is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a merritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of malafides, A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that Judiciary is respected not on account of its power to legalize injustice on technical" grounds but because it is capable of removing injustice and is expected to do so."
Relying on the said decision, Shri Routray submitted that courts are to do substantial Justice to the parties by disposing of the matters on merits instead of technicalities such as limitation and liberal approach should be adopted by the Court. Shri Routray further submitted that from the date the cause of action arose the plaintiff-appellant has been pursuing her grievances not only because, the authorities but also before this court in a writ application and thereafter filed a suit before the courts below. Both the courts having found that the appellant-plaintiff was illegally prevented by the Management from discharging her duties, the suit should have been disposed of on merits instead of ground of limitation alone. There is no dispute that the plaintiff had initially approached this Court in a writ application which was disposed of in the year 1994 directing the plaintiff to file a suit. Thereafter, the plaintiff filed a suit before the learned Civil Judge (Jr .Division), Bhubaneswar which did not have the pecuniary jurisdiction to try the same. When the learned Civil Judge (Jr. Division) became aware of the said fact, he returned the plaint for presentation before the appropriate Court. The plaint was again presented before the appropriate Court and continued for years. Shri Routray on the above facts may be justified in saying that from the date, the cause of action arose, the plaintiff has been pursuing her grievances in different courts and both the courts below have found the action of the Governing Body to be illegal, but such submissions do not help the plaintiff-appellant In any manner as the suit was barred by time. Section 5 of the Limitation Act has no application to suits and the Courts cannot take aid of Section 5 to condone delay in filing the suit. I am therefore, of the view that the decision of the Apex Court referred to above has no application to the present case.
11. Having found that the suit had been filed beyond the period of limitation, I find no reason to differ with the conclusion arrived at by the lower appellate. Accordingly, the appeals are devoid of any merit and are dismissed.
12. Shri Sinha, the learned counsel for respondent No. 3 had submitted that the suit being clearly barred by time, he has nothing to submit on the other findings which are challenged by way of a cross appeal.
I therefore, though held that the suit is barred by limitation, do not find any merit in the cross-appeal otherwise and dismiss the cross-appeal.