(Prayer: THIS MISC SECOND APPEAL IS FILED UNDER SECTION XLIII R(1) (U) OF CPC AGAINST THE JUDGEMENT and DECREE DATED 12.04.2010 PASSED IN R.A.NO.04/2009 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE, BELGAUM, ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED 26.09.2008 PASSED IN O.S.NO.115/2001. ON THE FILE OF THE CIVIL JUDGE DECLARATION AND FOR ISSUANCE OF DIRECTIONS TO DEFENDANT NO.3 AND 4 FOR PERMANENT INJUNCTION.)
1. These two miscellaneous appeals under Section 104 r/w Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908 [CPC], are by the plaintiff in OS No.115 of 2001, on the file of Civil Judge (Sr. Dn.), Chikkodi, a person, who is the widow of late Tukaram Patil, who had served as a soldier in the Indian Army and who had passed away on 29-10-1996 and whereupon the plaintiff, who had been granted family pension initially by the accounts department of the defence services of government of India, but such pension had come to be cancelled as per the order dated 8-7-1989 at the behest of fifth defendant in the suit and because of which, the plaintiff, after going through a couple of other procedures and fora, had approached the court for a declaration of her status as widow of the deceased former soldier and the suit, on contest by the defendants - first defendant government of India, second defendant Deputy Commissioner, Belgaum, third defendant the record officer of Maratha Light Infantry, fourth defendant the officer of the controller of defence accounts and one Smt. Savubai @ Savithribai, who had competed with the plaintiff to claim the status of the wife of deceased soldier during his life time and widow after his death, as fifth defendant, and notwithstanding the first defendant having set up a plea of want of jurisdiction in the court, the trial court having decreed the suit as sought for by the plaintiff, but that decree having been set aside by the lower appellate court in appeals preferred by the first defendant and the fifth defendant in two different appeals, but the matter having been remanded to the trial court for fresh consideration including the question of maintainability of the suit, aggrieved plaintiff is in appeal before this court challenging the remand order.
2. Appeals had been admitted for examination on 28-1-2011 and stay of the remand orders has been continued from time to time.
3. The appellant being a senior citizen, aged more than 80 years and in the evening of her life, but deprived of even family pension, finding it difficult to make a living, forget about a decent living, having moved an application for early hearing of the appeals and these applications had been ordered on 21-3-2011, directing the matter to be listed for disposal today, with liberty reserved to the learned counsel for the appellant to mention for taking up the matter out of turn etc.
4. The appeals having been taken up for disposal on the mentioning of Sri Shivaraja C Bellakki, learned counsel for the appellant. I have heard Sri Shivaraja C Bellakki, learned counsel for the appellant and Sri Mruthyunjaya Tata Bangi, learned counsel for the defendants 1, 3 and 4 and Ms. Megha Kolekar, learned government pleader for second defendant - Deputy Commissioner of Belgaum district,.
5. A few facts leading to the above appeals are that the plaintiffs husband one Tukaram Patil had joined the then Indian army in the year 1942 and he retired from service on 11-10-1959. During his life time, said Tukaram Patil had nominated his wife, the present plaintiff, for receiving family pension after his demise and also for receiving other pensionary benefits.
6. It appears, said Tukaram Patil died on 29-10-1986. Thereafter defendants 1, 3 and 4 had prepared pension papers and had granted family pension in favour of the plaintiff and even the first pension in the name of plaintiff for a sum of Rs.450/- was remitted in the bank account. However, it appears, the amount which had been remitted to the account of the plaintiff in SBI, Nippani branch, had been, by impersonation and forgery, drawn by the fifth defendant, posing herself as the plaintiff. The plaintiff having complained to the defence authorities, the fifth defendant appears to have countered it by giving a petition to the authorities alleging that the plaintiff had married a third person in the year 1965 and immediately thereafter, to be precise on 16-5-1965 and the fifth defendant her self had married the husband of plaintiff and therefore no family pension should be given to the plaintiff.
7. At this stage, the defendants 1, 3 and 4 while found it convenient to cancel the family pension in favour of the plaintiff, nevertheless, recovered the amount that had been drawn by the fifth defendant in the name of plaintiff and on the representation of the plaintiff to them for restoring the pension to her, had communicated that if the plaintiff should get a certificate from the competent authority about her status as legally wedded wife of Tukaram Patil, Family pension will be restored to her.
8. With these developments, plaintiff was advised to go before civil court by filing a petition under Section 372 of the Indian Succession Act, 1925 in PandSC No.2 of 20O6 for getting a suitable succession certificate.
9. However, plaintiff having realized that said proceedings were not productive for her, sought the permission of the court to withdraw the proceedings to institute the present suit in OS No 115 of 2001 before the court below seeking for the following relief:
a) It be declared that the plaintiff is legal heir of deceased Tukaram Patil as his widow and she is absolute owner of the arrears of pension account and further she is entitled for further family pension.
b) It be declared that the plaintiff's family pension was sanctioned by defendant No.3 and 4 in its order No.F/NA/PRE-64/40233/88 and the same was cancelled by defendant No.3 in its order No.F/ NA/PRE-64/1588/89 dated 8th July, 1989 is null and void and illegal and same is to be set aside.
(c) The defendant No.3 and 4 be directed to pay the arrears of family pension and continue the future family pension to the plaintiff.
(d) The cost of this suit be awarded to the plaintiff from the concerned defendants.
e) The permission may kindly be given to the plaintiff to amend the plaint as and when necessary.
f) Any other reliefs that deems fit be granted to the plaintiff.
10. The suit had been contested by the defendants, except the second defendant. While the defence on behalf of defendants 1, 3 and 4 was that the suit was in the first instance not maintainable, in view of Section 4 of the Pensions Act, 1871 [for short, the Act], it was also pleaded that the suit was barred by limitation, having been filed more than 12 years after the cancellation of pension and therefore barred by law of limitation and prayed for dismissal of the suit.
11. The fifth defendant on her behalf had set up a defence as noticed above.
12. In the wake of such pleadings, the trial court framed the following issues for determination:
1. Whether the plaintiffs prove that she being the legally wedded wife of Tukaram Patil is the only legal heir of the deceased Tukaram Patil?
2. Whether the defendant no.5 proves that the plaintiff has remarried Annu TukaramJadhav of Ingali?
3. Whether the defendant no.5 proves that she is the legally wife of deceased Tukaram Patil?
4. Whether the defendant no.3 proves that plaintiff having remarried Annaso Jadhav is entitled to the family pension and its arrears, which Tukaram Patil was entitled?
5. Whether the defendant no.3 proves that the cancellation of the family pension granted to the plaintiff by order dated:F/NA/PRE-64/140233/88 is legal and valid?
6. Whether the defendant no.3 proves that the suit is barred by time as contended in para no.5 of the written statement?
7. Whether the defendant no.3 proves that this court has no jurisdiction to try the suit in view of the Pension Act, 1871?
8. Whether the plaintiff is entitled to the reliefs, which she has claimed in the suit?
9. What order/decree?
13. Parties led evidence on such issues. The plaintiff examined herself as PW1 and marked ExP1 to 9. On behalf of the defendants 1, 3 and 4, the record officer of the third defendant was examined as DW1 and the fifth defendant entered the witness box and deposed as DW2. Documentary evidence on behalf of the defendants comprised of ExD1 to D15.
14. The learned judge of the trial court, on appreciation of evidence, oral and documentary, answered the first issue in the affirmative, holding that the plaintiff has proved that she is the legally wedded wife of Tukaram Patil and is the only legal heir of deceased Tukaram Patil and answered issues 2 to 7 in the negative against the defendants and held that the plaintiff was entitled for relief sought for and accordingly decreed the suit.
15. It is aggrieved by this judgment and decree, defendants 1, 3 and 4 together filed an appeal and the fifth defendant filed another appeal in RA No.33 of 2009 and RA No.4 of 2009 respectively. The learned judge of first appellate court heard both the appeals together and in the wake of the submissions made at the Bar, formulated the following points for consideration:
1. Whether the trial court has committed serious illegality in not considering the I.As.5 to 9?
2. Whether the trial court has committed serious illegality in not giving sufficient opportunity to the defendants to produce the documents and to adduce evidence?
3. Whether the judgment of the trial court is illegal and perverse which warrant the interference of this court?
4. Whether the affirmative findings of the trial court on issue no.1 and 8 are illegal and perverse which warrant the interference of this court?
5. Whether the negative findings on issues 2 to 7 are illegal and perverse which warrant the interference of this court?
6. What order?
and answered the points 1 to 3 in the affirmative and against the plaintiff, found no occasion to answer points 4 and 5. Accordingly the first appellate court set aside the judgment and decree passed by the trial court and remanded the matter to the trial court.
16. It is aggrieved by this remand order, the present miscellaneous second appeals by the plaintiff.
17. Submission of Sri Shivaraja C Bellakki, is that there was absolutely no need or justification for passing a remand order; that the learned judge of first appellate court is clearly in error in remanding the matter or setting aside a well considered judgment and decree of the trial court; that the learned judge of first appellate court has not appreciated the material on record in a proper perspective and basing the judgment for non-examination of [As V to IX filed by the fifth defendant in the suit filed at a belated/ advanced stage of the suit for production of additional evidence, as though it was a matter of right for a party to keep coming with such applications at any stage of the proceeding; that making such a development of non examination of the applications, a basis for setting aside a well considered judgment and decree and for recording an unwarranted, unjustified finding that the judgment of the trial court is illegal and perverse and whereas on the other hand it is the judgment of the lower appellate court, which suffers from such infirmities and therefore submits that the remand order should be set aside and the decree granted by the trial court sustained by dismissing the appeals of the defendants 1, 3 and 4 and defendant No 5 before the lower appellate court.
18. Learned counsel for the appellant has drawn my attention to the provisions of Section 4 of the Act, reading asunder:
4. Bar on suits relating to pensions.-
Except as hereinafter provided, no Civil Court shall entertain any suit relating to any pension or grant of money or land-revenue conferred or made by the Government or by any former Government, whatever may have been the consideration for any such pension or grant, and whatever may have been the nature of the payment, claim or right for which such pension or grant may have been substituted.
and submits that the bar envisaged in this section is only for a person claiming grant of pension before a civil court and not in a case where entitlement for pension is neither disputed nor to a situation where pension had already been granted, but in fact had been cancelled later to the initial grant of pension.
19. Even with regard to the question of limitation, learned counsel for the appellant submits that the right to receive pension being during the life time of the plaintiff, it gives rise to a recurring cause every month, so long as pension is not received; that defendants 1, 3 and 4 did not make an issue, of grant of pension to the plaintiff, but only wanted the plaintiff to produce legal heir certificate as per the endorsement dated 23-9-1995 and that it is because of this reason, the plaintiff had instituted the PandSC proceedings but as it was realized later that a suit is a more comprehensive effort for achieving the object of the plaintiff, with the permission of the court, PandSC proceedings were withdrawn and immediately thereafter the present suit had been filed; that even assuming for argument's sake, plaintiff cannot seek for entire arrears of pension, the plaintiff is definitely entitled for claiming pension for the three years prior to the date of accrual of the cause of action; that the letter from the defendants constitute a cause of action for the plaintiff to approach court and therefore the plaintiff is entitled for arrears of pension, if not for the entire period, at least for three years prior to this date and current and future pension thereafter. Learned counsel for the appellant, therefore, submits that the appeals are to be allowed.
20. Sri Mruthyunjay Tata Bangi, learned counsel for the defendants 1, 3 and 4 on the other hand, also has drawn my attention to the provisions of Section 4 of the Act and submits that when there is a clear statutory bar, the civil court cannot entertain the suit and the view taken by the lower appellate court is proper, justified and does not call for interference.
21. Sri Mruthyunjay Tata Bangi also submits that the matter being remanded to the trial court, no interference is warranted in these appeals, as the parties will have an opportunity to lead evidence afresh and a satisfactory determination can be attempted by the trial court.
22. On the question of limitation, Sri Mruthyunjay Tata Bangi submits that the suit is definitely barred by limitation and having been filed 12 years after the cancellation of pension, the date on which the cause of action arose, and therefore there is no need for remanding the matter and the suit itself is barred by limitation.
23. In the alternative, Sri Mruthyunjay Tata Bangi submits that even assuming that the cause of action is a recurring one, in so far as the arrears of pension is concerned, it cannot be for a period more than three years prior to the filing of the suit.
24. I have perused the available records before the court, pleadings, judgments and bestowed my attention to the submissions made at the Bar.
25. The theory of proportionality is claimed to be a great English legal principle developed by English judges in the House of Lords and courts of appeal. We have a legal system inherited from the British, which is now grafted to the needs and requirements of our society, which has resulted in an hybrid system, paying little attention to the needs and requirements of our own people, in our examining the suitability or justification to keep following the English legal system, legal principles as envisaged in the English legal system being at variance and being lazy to usher in or lazy bringing in our own laws to suit the needs and requirement of our people in our society. The Pensions Act, 1871 is a relic of the British legacy a law made in the year 1871, but has merrily continued even as on date only because of Article 13 of the Constitution of India and for no better reason than that the provisions are not examined for their compatibility with the provisions of the Constitution of India. There is a very meaningful proverb in Kannada language, which is the common man's version of English legal principle theory of proportionality! But, our courts and judges enamoured about the Englishmen and the English and their legal system while have refused to recognize the locally developed principles and proverbs meaningful and evolved by sheer experience and wisdom of our own people, giving considerable weight and importance not only to English legal principle but also to legal maxims as prevailed in Greek or Latin!
26. The mighty Government of India through defendants 1, 3 and 4, has contested the suit with all resources at its command, legal acumen available to the counsel appearing for the central government pleading for throwing out the suit on the ground of want of jurisdiction with the civil court in the matter of grant of pension.
27. While it is true in terms of Section 4 of the Act, grant of pension i.e. grant or non-grant of pension cannot be subject matter of a suit before a civil court, the present situation is not one such, but a situation where pension is granted, in the sense, family pension to the widows of former soldiers or defence personnel is not disputed, but conceded, but discontinued on the basis of a complaint alleging certain acts to the plaintiff as complained by the fifth defendant, who is virtually in the position of a second wife to the soldier, though it is claimed this lady had married the person after coming to know that the plaintiff herself had contracted marriage with some third person. These are all in the realm of 'ifs' and 'buts'. The application filed by the fifth defendant was to make good this version, which was of a fact of the year 1965, non-production even in the year 2001, when the suit was filed, is an inexcusable folly and definitely raises doubts about the veracity of the version of the fifth defendant.
28. Be that as it may, defendants 1, 3 and 4 found this development convenient to cancel the pension in favour of the plaintiff on such flimsy grounds and as complained by the plaintiff, even without notice or opportunity to the plaintiff. The act, per se, is illegal, void and being in violation of principles of natural justice and even an irresponsible and inhuman act. Plaintiff, who is now aged about 80 years was even then an elderly citizen. A widow without any support or protection and in spite of it, well clothed, stiff-necked, blue collared officials of the government of India and the accounts department of the defence services did not bat an eyelid before taking such a drastic action to deprive the source of support to the plaintiff, who was in the evening of her life.
29. No wonder, the trial court found it is an illegal act and granted a decree as sought for on recording of a finding that the plaintiff was the legally wedded wife and was the person who was entitled for pensionary benefits, family pension etc., in view of the death of her husband.
30. In so far as the limitation is concerned, while it is a debatable question as to the precise date on which the cause of action arose; that it is a recurring cause of action is beyond dispute, as entitlement for pension is during the life time of the plaintiff and therefore even on the date of filing of the suit, it was a live cause of action. If so, the right for maintaining the suit for arrears of pension upto three years prior to the date of filing of the suit can never be disputed.
31. Though, it is contended by the learned counsel for the appellant that the date of cause of action should be taken to be the date on which defendants 1, 3 and 4 apprised the plaintiff for producing a legal heir certificate for restitution of the pension, that is not an argument for supporting the limitation question for reckoning the starting point for cause of action, as the cause of action arises not on the date when the plaintiff was advised to produce the document, but on the date when the plaintiff was not paid the family pension. The claim is on the basis of entitlement for pension and not on the basis of the advice nor the date of discontinuation, though the date of discontinuation is the date when the cause of action for claiming pension arises, as from that date, pension was not paid even earlier i.e. way back in the year 1999 and at any rate not later than the date when the plaintiff was made known of the cancellation. Though it is contended by the learned counsel for the appellant-plaintiff that the plaintiff came to know of the cancellation for the first time when this factum was made known to the plaintiff during the PandSC proceedings and in the year 1996, I am unable to accept this submission for the reason that whether the cancellation was made known to the plaintiff in the year 1996 or not, non-payment of pension being from the year 1989 and that gave rise to a cause of action. Also the factum that the plaintiff was before a wrong forum does not necessarily save limitation, unless it is so enabled by the provisions of Limitation Act. Institution of PandSC proceedings by the plaintiff for getting a legal heir certificate, particularly in the wake of the communication from the third defendant dated 23-9-1995 being a bona fide proceeding, Article 14 of the Limitation Act, as has been submitted by the learned counsel for the appellant-plaintiff, has application and therefore the plaintiff will be entitled for arrears of pension for a period of three years prior to the date of institution of PandSC proceedings, which was on 26-2-1996.
32. In this view of the matter, the lower appellate court was not at all justified in remanding the matter.
33. It is necessary to observe about the decision of appellate courts passing remand orders for no rhyme or reason, leave alone for a justifiable purpose, but for the sake of merely passing a remand order. Though this court has frowned upon the lower appellate courts in blindly passing remand orders, a lazy judge, a judge who shirks responsibility, an indecisive judge, a judge who does not know his work, a judge who does not want to shoulder the responsibility of writing a reasoned judgment, for reversing the judgment and decree of the trial court which can bear scrutiny before higher courts, and even a judge who revels in pleasing both sides, all merrily indulge in passing remand orders!
34. A remand order is to be passed only in a situation as is contemplated in Rule 23-A of Order XLI CPC, reading as under:
APPEALS FROM ORIGINAL DECREES
23A. Remand in other cases.
Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.
A situation where an appellate court is not enabled to dispose of the appeal in a satisfactory manner for want of very relevant, vital evidence, which could have been made available by the parties letting in the same, but not so made available or not forthcoming for any reason and if the appellate judge feels that it is desirable to get such evidence on record, then to enable the parties to place such evidence before the court, a remand order is required to be passed.
35. A remand order can either be on a limited issue or in respect of the entire suit, as in the present case.
36. Though rejection or non-consideration of the applications for production of additional evidence in the form of IAs V to IX in the present case, could have been a cause for remand, if it was really so and if the learned judge of first appellate court had applied his mind and found that to be so, but on the other hand, the finding recorded on this aspect by the learned judge of the first appellate court is to the contrary; that even while the applications are characterized as vague, not revealing the real purpose and circumstance and are ambiguous, but nevertheless observing that the learned judge of the trial court has failed in his duty in not dealing with such frivolous application, and using this as an excuse to remand the matter, in my considered opinion, is nothing short of a dereliction of duty on the part of the learned judge of first appellate court.
37. Be that as it may, if the matter did not justify a remand order, then the appeals should have been satisfactorily disposed of by the first appellate court on the basis of the available material and in fact the matter warranting examination more on the legal question than on the factual position and that legal position could have been examined and satisfactorily answered by the learned judge of first appellate court himself but not done.
38. It is, therefore, these two appeals are allowed, awarding exemplary cost in favour of the succeeding plaintiff, the present appellant, quantified at Rs.10,000/-against the defendants 1, 3 and 5 and a sum of Rs.5,000/-against the fifth defendant in the suit. The remand order passed by the learned Judge of the lower appellate court is set aside. Appeals preferred by the defendants in the suit in RA Nos.4 and 33 of 2009, on the file of I Additional District Judge, Belgaum, are dismissed and the judgment and decree passed by the trial court in OS No.115 of 2001 is restored.
39. Cost to be deposited before this court within six weeks from today, failing which the registry is directed to issue a certificate in favour of the appellant/plaintiff for the recovery of the amount awarded by way of cost against respondents 1, 3 and 4 and against respondent no.5, as though it is a decree passed by a Civil Court for the recovery of the respective cost amount to enable the plaintiff/appellant to recover these two amounts as though it is a decree passed by a civil court, against R1, R3 and R4 in one set and against R5 in another set.
40. Ordered accordingly.