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State of Uttar Pradesh Vs. Mool Chand Wahi - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1386 of 1964
Judge
Reported inAIR1972All413
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 - Order 2, Rule 2; Limitation Act, 1908 - Sections 19(1); Constitution of India - Article 166
AppellantState of Uttar Pradesh
RespondentMool Chand Wahi
Appellant AdvocateStanding Counsel and ;J.N. Agrawal, Adv.
Respondent AdvocateG.N. Sharma, Adv.
DispositionAppeal dismissed
Excerpt:
.....who filed a suit against dismissal from service gets an order of reinstatement - later on he filed suit claiming salary for the after reinstatement - held, the cause of action had not arisen on the date of institution of previous suit therefore suit is valid. (ii) authorised agent - second explanation to section 19(1) of limitation act, 1908 - letter of increment, revision of scale written and signed by asst. general manager who is the appointing authority - held, he will be agent duly authorized to sign acknowledgment. - - 168/- allowed by the trial court in respect of the claim for good conduct allowance was disallowed. 168/- was further claimed as not payable to the plaintiff which was allowed as good conduct allowance by the trial court. this letter contains a clear acknowledgment..........of arrears of salary for the period 1-3-1955 to 31-3-1960. the trial court had decreed the entire suit on appeal filed by the state the decree was modified and a sum of rs. 168/- allowed by the trial court in respect of the claim for good conduct allowance was disallowed. 2. the facts of the case are that by an order passed by the general manager, u. p. roadways on 13-8-1953 the petitioner was dismissed from service. he filed a suit on 18-3-1955 being suit no. 165 of 1955, on the allegation that the order of dismissal was void and in operative. in the suit he claimed salary due for the period 20th june 1953 to 28th february, 1955. the suit was decreed. the plaintiff had not claimed salary for the pendency of the suit. subsequently the plaintiff was re-instated but was not paid the.....
Judgment:

Hari Swarup, J.

1. The defendant State of Uttar Pradesh has filed this appeal against the decree passed by the firstappellate court. The suit giving rise to this appeal was instituted by the plaintiff for recovery of arrears of salary for the period 1-3-1955 to 31-3-1960. The trial court had decreed the entire suit on appeal filed by the State the decree was modified and a sum of Rs. 168/- allowed by the trial court in respect of the claim for good conduct allowance was disallowed.

2. The facts of the case are that by an order passed by the General Manager, U. P. Roadways on 13-8-1953 the petitioner was dismissed from service. He filed a suit on 18-3-1955 being suit No. 165 of 1955, on the allegation that the order of dismissal was void and in operative. In the suit he claimed salary due for the period 20th June 1953 to 28th February, 1955. The suit was decreed. The plaintiff had not claimed salary for the pendency of the suit. Subsequently the plaintiff was re-instated but was not paid the salary due to him. He accordingly filed the present suit giving rise to this appeal. In this suit the plaintiff claimed salary with effect from 1st of March 1955 to 31st of March 1960. The suit was instituted on April 2, 1960. The appeal was filed in the court below by the State with regard only to the claim of salary due to the plaintiff from 1st of March 1955 to 31st of January 1957 on the ground that it was barred by limitation. Sum of Rs. 168/- was further claimed as not payable to the plaintiff which was allowed as good conduct allowance by the trial court. The lower appellate court did not accept the contention about bar of limitation and held that the suit for the entire claim was within limitation as the limitation was saved by virtue of Section 19 of the Indian Limitation Act, 1908. It held that the letter written by the Assistant General Manager on 6-2-1958 which was Exhibit 7 in the case was an acknowledgment within the meaning of Section 19 of the Limitation Act and it saved the limitation for the entire claim. It also held that the subsequent letters Exhibits 6, 5 and 4 which were written on 4th of March 1958. 21st of March 1958 and 8th April 1958 by the Assistant General Manager also impliedly amounted the acknowledgment sufficient to save limitation.

3. Learned counsel for the appellant raised two points in this appeal, viz. (i) that the claim was barred by Order 2. Rule 2, Civil P. C., and (ii) that the claim was barred by limitation as Exhibit 7 or Exhibits 6, 5 and 4 did not amount to acknowledgment of liability and even if any of them did, the same was of no consequence as the letters were written by the Assistant General Manager, who was not the person authorised under Section 19 of the Limitation Act and were insufficient to bind the Statealso otherwise as they were not made and authenticated in accordance with the provisions of Article 166 of the Constitution.

4. So far as the first ground is concerned, it is not open to the appellant to raise it in the second appeal because, although the bar of Order 2, Rule 2, Civil P. C. was pleaded in the trial court it was not raised or pressed in the first appeal. Even on merits there is no force in the contention as the claim is of a time subsequent to the institution of the previous suit in which the plaintiff had claimed that the order of dismissal was void. The salary for this period was not payable on the date of the institution of the earlier suit and the cause of action for the relief claimed in the present suit had not arisen. The claim cannot thus be barred by Order 2. Rule 2. Civil P. C.

5. The plea about non-compliance of Article 166 of the Constitution was also never raised in the courts below. It is also not one of the grounds on which this appeal has been filed. It is only at the stage of arguments that it is sought to be raised. The ground on which the parties contested the claim in the court below was on the interpretation of Section 19 of the Limitation Act and not on the ground that the letters do not fulfil the requirements of Article 166 of the Constitution. This new ground cannot be permitted to be raised at this stage because if it had been raised in the court of first instance the plaintiff may have brought on the record other material in rebuttal of the plea.

6. Exhibit 7 dated 6-2-1958 has been held by the court below to be a letter acknowledging liability. Exhibit 7 is addressed to the plaintiff and is in these words :--

'Please refer to your application dated 29-2-1958 regarding increment of Rs. 2/- which has been adjusted to your pay on December 1957.

Your pay was revised in the scale of C. B. S. Conductors with effect from 1-11-1950 vide this office letter No. AGM/ ESTT-PF/2223/57 dated September 10, 1957 and consequently the increment granted to you by Head Office in the scale of Rs. 40-3-70 in the year 1952 was also revised and a fresh amended increment certificate was issued raising your pay from Rs. 45/- to Rs. 47/- with effect from 23-3-1952. This increment has been adiusted in your pay. Please note.

Sd/- L. Charan

Assistant General Manager,

Varanasi.'

This document contains the statement that an order was issued on September 10, 1957 that the scale of pay had beenrevised and increment had been granted by the Head Office. With effect from 1-11-1950 and a fresh increment certificate was issued raising the pay again with effect from 20-3-1952. There is a further statement that the increment had been adjusted in the pay of the plaintiff. This letter contains a clear acknowledgment that the relationship of master and servant existed and that the plaintiff was entitled to get his pay as well as increments in the pay. The averment that increment had been adjusted in the pay clearly means that the servant was entitled to the pay because if he was not entitled to such pay there could have been no adjustment of the increment in his pay. The finding of the court below, therefore, that this letter amounted to an acknowledgment within the meaning of Section 19 of the Indian Limitation Act cannot be said to be erroneous.

7. As to the next contention, the court below has held that the Assistant General Manager was the person authorised to sign the acknowledgments on behalf of State Government for the reason that he was the appointing authority of the plaintiff and was also the person authorised to pay his salary. These findings have not been challenged in the grounds of appeal. It is implied in these findings that the Assistant General Manager was the person who had appointed the plaintiff and was authorised to dismiss him or suspend him to withhold his salary or to make orders for the payment of the salary. In the case of Raja Braja Sunder Deb v. Bhola Nath AIR 1919 PC 120 the Judicial Committee had to consider if a manager who was authorised to purchase and pay for all things required for the house of Raja himself and his house-hold could make acknowledgment within the meaning of Section 19 of the Indian Limitation Act. Their Lordships holding that he was so authorised expressed themselves in the following words:

'... ... ... The High Court made theobvious criticism that, as it had been satisfactorily established by the evidence of Prasanna Kumar Sen that it was within the general authority of Shanker Nath as 'Kote' manager to settle the purchase, and price of goods of the kind in question, there was no relevance in the point raised by the subordinate Judge, for if he could pay the amount of the claim, he could plainly also arrange to prevent time from becoming a bar to it.'

8. The principle of law enunciated in this case is that any person who has the authority to make the payment of a claim has also the authority to prevent time from becoming a bar to its realisation. According to the facts found, the Assistant General Manager had the right to make the payment He had thusalso the right to prevent time running against its recovery. He would thus be an agent duly authorised to sign an acknowledgment on behalf of the State Government within the meaning of the second Explanation to Section 19 (1) of the Indian Limitation Act. 1908. The view taken by the court below cannot thus be regarded as erroneous in law.

9. The suit in respect of the claim which is now the subject-matter of this appeal must also, therefore, be held to be within limitation. The appeal accordingly fails and is dismissed with costs.


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