Sukh Dev Singh vs State of Jammu and Kashmir and Others

Arun Kumar Goel, Judge.

This appeal is directed against the order and decree passed by learned District Judge, Jammu, on 28.10.1993 in civil file No. 7/appeal civil,

whereby dismissal of the suit of the appellant (hereinafter referred to as the plaintiff) by the trial court, i.e. Sub Judge (C. J. M.) Jammu dated

7.11.1992, has been upheld.

In order to fully understand the case brief facts which are not in controversy between the parties need to be noticed. Plaintiff claimed himself to be

senior to one Shri T. N. Raina, respondent No. 3 (since deceased). Claiming himself to be the senior, plaintiff prayed for his being appointed as

such and thereafter asked for consequential relief in the shape of notional promotion and monetary benefits to gather with retiral benefits. Before

filing the suit out of which this appeal has arisen, plaintiff had filed S. W. P. No. 250/1986 which came to be dismissed by this Court, this dismissal

was questioned by the plaintiff in LPA No. 14/1989 before this court itself, which was also dismissed. Again being dissatisfied with the dismissal of

the LPA, matter was taken up before the Supreme Court by the appellant, however, the Special Leave Petition also met the same fate.

It appears that the plaintiff was in continuous correspondence with the department and by means of communication dated 981985, the

representation of the plaintiff was turned down by the authorities, making it to be the date for filing the suit having given him cause of action in that

behalf. After having issued notice under Section 80 Civil Procedure Code, the suit was filed by the plaintiff in the court below. The suit was tried

exparte in absence of the defendants, however it was dismissed. The matter was taken up in appeal by the plaintiff, which also met the same fate,

against which order the present second appeal has been filed.

So far the relief claimed in the suit is concerned, it has been fairly stated by Shri Wazir, on instructions of his client who is present in court, that it

was directly and substantially involved as well as claimed by the plaintiff in the earlier litigation i.e. SWP No. 250/1986, and its having been finally

turned down. It is further not in dispute that this court was competent to have either granted or refused the relief prayed for having jurisdiction to

determine the controversy in question. That being so the suit is hit by the doctrine of resjudicata under Section 11 of the Code of Civil Procedure,

1977 (1920 A. D.).

It may also be appropriate to notice that when a reference is made to the .impugned order and decree nothing could be pointed out although a

serious attempt was made out by Shri Wazir in that behalf to justify the maintainance of the present appeal on this count.

Next question that needs consideration by this court is whether isolated fact of letter of rejection of representation of the plaintiff dated 981985 can

give any cause of action to the plaintiff for maintaining the suit or not. In this behalf parties were further not at variance on law point that cause of

action constitutes a bundle of facts which may give rise to controversy between the parties requiring adjudication by the court. In this behalf when a

reference is made to the factual aspect cause of action had in fact arisen to the plaintiff some time in the year 1977 and 1979 when Shri T. N.

Raina, respondent No. 3 (since deceased) was promoted. Admittedly suit from such date is not within time. As already noticed because the letter

of rejection was written to theplaintiff on 981985, this by itself is not the first act. Besides it a reading of this letter further indicates that previous

decision in the writ petition and other relevant circumstances in the writ petition were considered and it was thereafter that the representation was

rejected by means of aforesaid communication. There are no new circumstances much less facts to constitute a cause of action which may permit

the plaintiff to maintain the suit as originally filed after dismissal of the previous litigation right upto the Supreme Court as noticed hereinabove. That

being so, no suit can be maintained by the plaintiff on the simplicitor cause of action, that too on the basis of isolated averment in plaint regarding

cause of action having arisen after rejection of representation when the period of notice expired. This omission regarding cause of action appears to

be purposeful by the learned counsel for the plaintiff inthe plaint for the simple reason that otherwise on the admitted facts suit was not

maintainable.

For the aforesaid reasons there is no merit in this appeal, which is accordingly dismissed, with no order as to costs.

At this stage, Shri Wazir submitted that his client has retired as far back as in 1985, a direction needs to be issued to the defendants to settle the

matter relating to grant of pension and other retiral benefits after giving him the admissible pay scale. This prayer has also been made simply to be

rejected, although Shri Rehman stated that as per records and laws governing the same, admissible pension will be settled in case the plaintiff

cooperates with the department in that behalf. Without dealing with that matter it is left for the department concerned to deal with the pension

matter keeping in view the fact that plaintiff has since retired from government service long ago.