Lt. Col. G.S. Dutta vs Union of India (UOI)

Janakinath Bhat, J.—This is a civil second appeal arising out of a decree passed by the learned District Judge Udhampur dated 31-5-65

whereby he has dismissed the Appellant's suit as being barred under the proviso to Section 42 of the Specific Relief Act.

The Plaintiff brought a suit on the allegations that he joined the J and K State Army which was later on taken over by the Union of India. The

Plaintiff was serving as a Lt. Col. When the Kashmir army was taken over by the Union of India. The Plaintiff had sustained an injury on account of

an explosion resulting in the amputation of his right leg. The Plaintiff was re-transferred as Director of Rakhs and Farms. Then Shri Yuvaraj

Karansingh who was then the Sadar-i-Riyasat issued a Command on 8th June 53, on the recommendation of Maj. Gen. H.L. Atal, retiring the

Appellant with effect from the date he would be relieved of his appointment, after allowing him the benefit of leave due to him. According to the

Plaintiff the retirement of the Plaintiff would be on 16th July 54 and not on 8th June 53 and therefore he was entitled, to the difference in the rate of

pension which was consequential to the addition of one year's service. The Plaintiff prayed for a declaratory decree in which lie sought a

declaration to the effect that his date of retirement was 16th July 54 instead of 8th June 53 and that he was entitled to increase in his pension. He

prayed for an injunction against the Defendant.

I need not discuss all the issues that were raised in this case, because the issues decided by the learned Sub-Judge have not been considered by

the learned District Judge. The learned District Judge has disposed of the case on one ground only i.e., for not including a consequential relief in the

shape of a claim for arrears of extra pension.

The learned District Judge has relied on an authority AIR 1953 Sau. 21. In this case no doubt it has been held that u/s 42 of the SR Act the

grant of a declaratory decree is discretionary and may be refused if another appropriate remedy is available to the Plaintiff. Similarly if the Court is

satisfied that the real object of the suit is lo obtain an opinion on title or is a cloak to conceal the real relief then also the Court will refuse to give a

declaratory decree. Section 42 is further subject to the proviso that the Court shall not make a declaration of title where the Plaintiff being able to

seek further relief than a mere declaration omits to do so. Where the Plaintiff brings a suit for a mere declaration of his right to receive the full

pension from the date of his retirement without asking for any further relief in the shape of decree for arrears of the pension which he is able to

seek, his suit will be barred by the proviso to Section 42, and the Court will refuse to give him the declaration prayed for.

In this case their Lordships have referred to two authorities (1899) ILR 22 Mad 270 (PC) and Choudhury Mohammad Manjural Haque and

Others Vs. Shebait of Sri Sri Iswar Lakshmi Narayan Jew Thakur, Sri Sri Iswari Saradia Durga Debi Thakurani and Sri Sri Iswari Jagadhatri Debi

Thakurani, Bisseswar Banerjee, and have tried to distinguish them. In the Calcutta case the Plaintiff was out of possession, but the Collector ad

passed an order for delivery of possession to the Plaintiff. The Collector's order was superseded by the Court's order and the Court held that once

the Board's order was held to be ultra vires the Collector's order would stand and he would get possession. In my opinion this distinction is not

very helpful. What was being questioned was the order of the Board; and at that time the Plaintiffs being out of possession they should have sued

for possession also. These cases support the view, which I intend to take, namely, that the suit would not be barred under the proviso to Section

42 of the SR Act. In the Saurashtra case (Supra) their Lordships have further held that if the suit is brought as a cloak to conceal the real relief, the

Court will refuse to give the declaratory decree. In my opinion the Saurashtra judgment should not be construed as a complete bar to a suit of the

nature brought by the Plaintiff, and if that authority is a proposition for that view I respectfully beg to differ from the same.

Before considering the other authorities on the point which support my view, let us, first try to understand the proviso to Section 42 of the SR

Act. This section along with its proviso says that any person entitled to a legal character or any right to a 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 a declaration that he is so

entitled. The proviso says: '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'. The emphasis is on the words 'further relief. In my opinion further relief would mean a relief which is inherent in

the original declaration claimed, a relief without which the declaratory relief claimed would be ineffective, infructuous and unworkable. A typical

case of the application of this proviso is where a person claims a title to some property but is out of its possession, a mere declaration of title would

make the decree meaningless, infrucluous and incapable of yielding any fruitful results, because the effective decree that can be passed is with

respect to the possession of the property. If the possession is allowed to remain with the adverse party, and a mere declaration is issued in favour

of the Plaintiff the decree would be meaningless That is the purport of this proviso and the principle underlying it.

The present case can very well be understood and interpreted in the following manner. If the Plaintiff gets a declaration that he is entitled to an

enhanced rate of pension, this decree will enure for the life time of the Plaintiff, because he will be entitled to the enhanced pension not only upto

the date of the institution of the suit, but right upto the end of his life. If he omits to claim a certain sum which he could have claimed upto the

institution of the suit, that would not make the declaratory decree meaningless and infructuous, because the decree will envisage a recurring cause

of action to him for an enhanced rate of pension for future also after the date of the decree. I think the Plaintiff's case is not hit by the proviso to

Section 42 of the SR Act, but a subsequent suit by him after retirement for the arrears of the enhanced rate for the period upto the institution of the

suit would be barred under Order 2 Rule 2 of the Code of Civil Procedure. In my opinion the appropriate provision of the law that would apply to

such circumstances at the present moment or in the future would be Order 2 Rule 2 and not the proviso to Section 42 of the SR Act. The Plaintiff

could as well say in the present plaint that the arrears at the enhancedrate upto the institution of the suit would come to Rs. X. But in view of his

inability to pay the Court fee or for some other reasons, he would not like to claim the arrears but would be satisfied with getting a declaration to a

future enhanced rate of pension. There is nothing in law which would prevent the Plaintiff from so drafting the plaint. The Plaintiff, if his suit

sucfjpeeds, would be entitled to an enhanced rate of pension from the date of his retirement upto the date of his suit as also from the date of the

suit and the decree upto his life time. These are the reliefs inherent in the present suit. If the Plaintiff elects to give up a certain claim or a portion of

his claim and confines his suit to the rest, there is nothing bad in law and such a course of conduct on the part of the Plaintiff would not result in the

total dismissal of his suit. No authority need be cited for this proposition, because under the same provisions namely Order 2 Rule 2 of the CPC

the Plaintiff may not sue in respect of all the available reliefs and may relinquish a portion of his claim.

This in short is what is my view of the present case and the application of the proviso to Section 42 to the facts of this case. Let me however

review some authorities which are peril partinent in this behalf.

The present case is akin to a suit for declaration of title and arrears of rent. In an authority ILR(1887) Cal. 586 in a suit for a declaratory decree

in respect of Plaintiff's right to certain land where it appeared that rent was due to the Plaintiff in respect of such land, if his case was a true one and

where such rent was not claimed, it was held that the 'further relief' referred to in the proviso to Section 42 of the SR Act is further relief in relation

to the legal character or right as to any property which any person is entitled to and whose title to such character or right any person denies or is

interested in denying and does not include a claim for arrears of rent.

A somewhat contrary view was taken in ILR(1890) Mad. 75. The judgment is brief but the ratio decidendi is that where in a suit to declare the

Plaintiff's title to the stanam of fifth Raja of Palghat, the first Raja received a mali the allowance from Government payable to AIR 19 (SIC)

stanomdars, but had refused to pay Olver v. Hilher (SIC) Raja's share, it was held.

Hence in(SIC)entitled to sue for fur-ground to interfere with (SIC) of his title and 'the. trial Court. This appeal is (sic) be dismissed.

J.N. Wazir, C.J.

I agree.