Osmania University vs Mohammed Rahmat Ali Humayun

Kodandaramayya, J.—The defendant is the appellant in this appeal. The suit is filed for recovery of arrears of salary due to the plaintiff. The plaintiff earlier filed a suit O.S. No. 2325 of 1974 on the file of the IV Assistant Judge, City Civil Court, Hyderabad, that his date of birth is 9.12.1918 and the order retiring him on the basis that his date of birth is 9.12.1914 is illegal and for mandatory injunction restraining the defendants not to retire him. The suit in the first instance was dismissed by the trial court and the appellate court confirmed the same but in appeal this Court in S.A. No. 765 of 1976 on 10.8.1979 granted the relief to the plaintiff as prayed for. The result is that his date of birth was declared as 9.12.1918 and the present suit was filed for recovery of arrears from the date of retirement treating his date of birth is 9.12.1914.

The principal contention of the University is that the suit is hit by Order II Rule 2 CPC and also barred by limitation as the claim so far as it is beyond 3 years from the date of the suit is not sustainable. The trial court overruled the defence and decreed that suit for a sum of Rs. 80,172/- with proportionate costs and interest at 6% per annum on the said amount from the date of suit till the date of realization.

In this appeal the standing counsel for the University urged that present suit is hit by Order 2 Rule 2 and the failure to ask to recovery of salary in the earlier suit is fatal to the present claim. Further he also urged that in view of this, the present claim for salary beyond three years from the date of filing the suit is not sustainable having clearly barred by limitation.

It is refuted by the Learned Counsel for the plaintiff stating that the right to recover the salary arose only after the second appeal is allowed declaring the date of birth as 9.12.1914 and on setting aside the order of the authorities removing him from office.

In support of the view that the claim now made must form part of relief in the earlier suit, the Learned Counsel for the University relied on the The State of Bihar Vs. Abdul Majid, , wherein the view of the Privy Council in The AIR 1948 97 (Privy Council) , is specifically dissented and it is held that the rule of English law has not been fully adopted in this country u/s 240 of the Government of India Act, 1935 and that whenever there is a breach of restriction imposed by the statute by the Government or the Crown, the matter is justificable and the party aggrieved is entitled to suitable relief at the hands of the court and the rule that the Government servant holds office during the pleasure has been departed from by the statute and Government servants are entitled to relief like any other person under the ordinary law and that relief therefore must be regulated by the Code of Civil Procedure, and hence there is no impediment in suing for salary when the first suit was filed. Similarly he relied on Om Prakash Gupta v. State of Uttar Pradesh AIR 1955 SC 680, wherein this view was reiterated and the claim of the plaintiff for refund of the curt fee which has been paid on arrears of salary was rejected. The Supreme Court held that at the time the suit was instituted the law as then understood permitted such a claim to be made and consequently the decision of the Privy Council once reversed by the Supreme Court cannot furnish a ground for refund of the court-fee in accordance with the law as then understood.

Thus the Learned Counsel proceeded to state that the failure to seek relief of salary in the first suit when the cause of action is same and identical being the removal of the plaintiff from service is fatal to the present claim and it is hit by Order 2 Rule 2 CPC. Thus it is clear that the main point depends upon the question whether the cause of action in the present suit and the cause of action in the earlier suit is the same within the meaning of Order 2 Rule 2. Hence it is necessary to look into Order 2 Rule 2 CPC which is in the following terms.

Suit to include the whole claim

2(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.

Relinquishment of part of claim (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

Omission to sue for one of several reliefs-(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation:-For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

It is well settled that in order to sustain the bar under Order 2 Rule 2, the defendant who raised the plea must make out (i) the second suit was in respect of the same cause of action as that on which the previous cause of action is based; (ii) in respect of the same cause of action the plaintiff is entitled to more than one relief; (iii) that being so the plaintiff omitted to sue for relief for which the second suit has been filed. It is thus seen that the basic requirement of invoking Order 2 Rule 2 is that the cause of action must be same in respect of both the actions. The question is when the right to recover the salary arises, can it be said that the right to salary accrued to him before the order removing him from service is set aside. It might be that he can ask the relief of the salary in the first suit also. But the question is, unless the cause of action arises, the failure to sue for relief is not fatal. A similar question was considered by the Supreme Court in The State, of The State of Madhya Pradesh Vs. The State of Maharashtra and Others, wherein the two earlier judgments referred, to above were referred and distinguished. In that case, the civil servant was removed from service on 7.11.1945 and he filed the first suit on 6.1.1949 and by the judgment, dated 31.8.1953 the order of dismissal was set aside. After he was reinstated on 12.12.1953 he was again, after suspension, removed from service on 2.2.1956 and he again filed a suit on 6.10.1956 asking for declaration that the orders of suspension and removal are illegal and also prayed for arrears of salary. He served two states Madhya Pradesh and Maharashtra. Besides the question, which state is liable to pay the salary, the substantive questions raised on merits are (i) the plaintiff did not claim salary and allowances for the period subsequent to 15.9.1943 in the first suit filed in 1949 and was therefore by reason of the provisions in Order 2 Rule 2 he was precluded from claiming the salary and allowances for the period from 16.9.1943 to 31.8.1953 in the second suit, Secondly the plaintiffs claim in the second suit for salary and allowances prior to 6.10.1956 is barred under Article 102 of the Limitation Act, 1908. To reject this contention the Supreme Court gave two reasons: (1) Though the Federal Court in AIR 1947 23 (Federal Court) held that a public servant has a right to bring a suit for arrears of salary, the Privy Council took a different view and negatived such claim and hence that should be the law governing the subject, and hence the plaintiff could not ask for arrears of salary under the law as it then stood. A right which a litigant does not know that he possesses or a right which is not in existence at the time of the first suit can hardly be regarded as "a portion of his claim" within the meaning of Order 2 Rule 2 CPC and hence the plaintiff cannot be said to have omitted to file the suit. It must be noted that by the time the first suit was filed the judgment in The State of Bihar v. Abdul Majid (supra) dissenting with the view of The High Commissioner for India v. I.M. Lall (supra) was not rendered. The second reason assigned by the Supreme Court is that the cause of action in the second suit is different from the cause of action in the first suit. The plaintiff became entitled to salary for the period 16.9.1943 up to the date of reinstatement on 12.12.1953, only when pursuant to the decree, dated 30.8.1953 there was actual reinstatement of the plaintiff on 12.12.1953; and hence it is held that the High Court was right in concluding that the plaintiffs claim for salary accrued due only on the order of dismissal dated 23.2.1956 being set aside. The second reason assigned by the Supreme Court to negative the bar under Order 2 Rule 2 can be invoked by the plaintiff in this case.

Applying the above test in this case, till the order of the authorities removing the plaintiff from office was set aside, he has no right to claim the salary. Thus the cause of action in the second suit is non-payment of salary notwithstanding the declaration of the court, setting aside the order of removal from service. In the second suit the removal no longer subsisted by the time of the filing of the suit. So long the removal order stands there is no right for the plaintiff to claim salary. Hence I hold that the right to recover salary arose only after the order of removal was set aside by the Court and that was done only by virtue of the decree in the first suit. The claim for salary within 3 years from the date of the first decree would constitute a different cause of action and is clearly outside the purview of Order 2 Rule 2 CPC.

The jural relationship of master and servant that accrued by a contract can be put an end by the master by passing an order. Till that order was set aside by the competent court the right to recover the amount would not arise. Hence the view of the Court below that the right to recover the salary arose after the judgment in the first suit is well founded and I see no infirmity in the view taken by the trial Court.

In the result, the appeal fails and the same is dismissed with costs.