Balakrishna Agarwalla v. State of Assam and Others
1992-07-10
D.N.BARUAH
body1992
DigiLaw.ai
This appeal is directed against the judgment dated 19.4.86 passed by the Assistant District Judge, Jorhat, in Title Suit No. 12 of 1980 dismissing the suit with costs. 2. The appellant was the plaintiff in the suit. He filed the suit (Title Suit No. 12/80) for declaration that withholding of Rs. 27,243.31 from the appellants existing and future bills by letter No. NH/3153/58 dated 15.6.76 issued by the third respondent (Defendant No 3) was illegal, void and inoperative in law. He also prayed for perpetual injunction restraining the respondents from giving effect to the said letter dated 15.6.76. The case of the appellant is that he has done a job No. 387/AS/39 i.e. on the 1st to 11th Mile of NH No. 39 under Golaghat NH Division. He completed another work under the respondents in March 1970 and all materials were duly measured, checked and counter checked by the competent authorities, and thereafter, final payment was made in 1970. All deposits and earnest money against the work were also released in time. All the contract works given to the appellant had been completed in compliance of the tender and the contract work. The appellant also took different work on fresh tenders and after completion of the works as per rules, payments became due. But to the utter surprise of the appellant, the third respondent issued a letter No. NH.3135/58 dated 15.6.76 informing the appellant that a sum of Rs. 27,243.31 was being withheld from any amount due to the appellant for adjustment against over payment made to him for the job No. 387/AS/39 i.e. 1st to 11th Miles on NH No. 39. According to the appellant, this act of withholding the money from the pending bill was illegal and wrongful, therefore, repeated letters and requests were made to rescind the said letter, but no effect. The appellant further stated that he completed the work, and after due measurement by the respondents as per rules, bills were prepared and payments were made and even the security and other deposits were also refunded and, therefore, the respondents cannot withhold any money from the present or future bills on the ground of alleged over payment. Though the letter for withholding the payment was issued no payment was actually withheld till the filing of the suit. Therefore, the appellant filed a suit for declaration and permanent injunction as stated above. 3.
Though the letter for withholding the payment was issued no payment was actually withheld till the filing of the suit. Therefore, the appellant filed a suit for declaration and permanent injunction as stated above. 3. The respondents entered appearance and contested the suit by filing written statement. In the written statement, the defendants amongst others, raised the plea mat the suit was not maintainable in law and it was barred by limitation. The defendants further stated that the suit was not tenable in law and liable to be dismissed as per provision of section 34 of the Specific Relief Act, as no consequential relief was sought in the plaint. 4. On the pleadings, the trial court framed as many as five issues. The issue No. 1 and 2 are as follows: "(i) Whether the suit is barred by limitations ? (ii) Whether the suit is tenable as per provisions of Section 34 of the Specific Relief Act. ?" Both sides adduced evidence by examining one witness each. On the conclusion of the trial, the Assistant District Judge, dismissed the suit by answering-the issue Nos. 1 and 2 against the appellant holding that the suit was barred by limitation and the suit was not maintainable in law as per provision of section 34 of the Specific Relief Act on the ground of not seeking any consequential relief. The appellant, therefore, has filed this appeal. 5. Now the points for determination are - (i) Whether the suit is barred by limitation and (ii) Whether the suit is not maintainable under section 34 of the Specific Relief Act, for not seeking consequential relief in the plaint ? 6. I have heard bom sides. Regarding the first issue, i.e. whether the suit is barred by limitation, Ms U. Baruah, learned counsel for the appellant submits mat the letter dated 15.6.76 amounts to a civil wrong, whereby the amount was threatened to be deducted from the present and future bills. This is a continuing wrong as envisaged under section 22 of the Limitation Act, 1964, therefore, the suit cannot be held to be barred by limitation. Mr.
This is a continuing wrong as envisaged under section 22 of the Limitation Act, 1964, therefore, the suit cannot be held to be barred by limitation. Mr. P.C. Gayan, learned Government Advocate submits that the suit can be dismissed for failure of the plaintiff for not seeking consequential relief, inasmuch, as, it comes within the purview of section 34 of the Specific Relief Act, and no decree, as sought for, can be granted, if the plaintiff fails to seek consequential relief. Merely seeking a declaration is not enough for granting a decree under section 34 of the Act, therefore, the trial court rightly dismissed the suit, answering the issue No. 2 against the plaintiff. Similarly, Mr. Gayan further submits that the issuance of letter dated 15.6. 76 by the respondent No. 3, the wrong was complete, and therefore, it cannot be said to be a continuing wrong. Under the circumstances, the Court below rightly dismissed the suit holding that the suit was barred by limitation. 7. Ms Baruah further submits that the prayer for declaration in the suit itself being a consequential relief, the suit is maintainable under section 34 of the Specific Relief Act. The trial Court, however, did not consider this aspect of the matter while deciding the issue No. 2 against the appellant. Ms Baruah submits that the appellant prayed for a mandatory injunction restraining the respondents from giving effect to the letter dated 15.6.76 and such injunction would amount to giving direction to the Respondent to pay the amount to the appellant, and therefore, it is also a consequential relief. The court below totally misconstrued the provisions of law by dismissing the suit answering the issue No. 2 against the appellant. 8. On the rival contentions of the learned counsel for the parties, it is to be seen whether the court below rightly dismissed the suit or not ? The appellant filed a suit for declaration that the letter dated 15.6.76 issued by the third respondent was illegal, void and inoperative in law and for permanent injunction restraining the opposite party from giving effect to the said letter. 9. From the plaint, it appears that the appellant sought for a declaration and for perpetual injunction by way of consequential relief. According to him, the third respondent issued a letter No. NH/3153/58 dated 15.6.76 informing that an amount of Rs.
9. From the plaint, it appears that the appellant sought for a declaration and for perpetual injunction by way of consequential relief. According to him, the third respondent issued a letter No. NH/3153/58 dated 15.6.76 informing that an amount of Rs. 27,243.31 would be withheld from the appellant's present and further bill for adjustment on account of alleged over payment made to him in respect of earlier job No. 387/AS/39. On receipt of the said letter, the appellant submitted representations on various occasions, however, the respondents did not pay heed to it. Therefore, the appellant issued notice under section 80 C.P.C. to the District Collector, Sibsagar and to the second respondent. In spite of service of the notice, the respondents did not withdraw the said letter, therefore, the appellant was compelled to file the suit praying for a declaration that the said letter dated 15.6.76 was illegal, and cannot be given effect to and also for permanent injunction. The alleged over payment of Rs. 27,243.31 was in respect of an earlier Job No. 387/AS/39 on the 1st to 11th Mile of NH No. 39 under Golaghat NH Division. This job was completed as far back in March 1970, and therefore, final payment was made to the appellant in the same year after taking measurement of the work done. The payment was made only after making proper verification. The security money was also paid. The impugned notice was issued after six years. According to the appellant this is illegal and the said notice issued by the third respondent constitute a threat on the appellant for recovery of the amount, which is not in accordance with the law. This threat is continuing every moment, and therefore, it is a continuing wrong within the meaning of section 22 of the Limitation Act. Hence, section 22 of the Limitation Act squarely applies in the instant case. 9. This court in Hurmai Ali vs. Union of India, AIR 1979 Gau 21 , had occasion to deal with a similar matter. In the said case, a quit India notice was issued to the appellant who filed a suit for declaration. Such suit for declaration was filed after the period of limitation and therefore, the suit was dismissed by the trial court. However, this court, held thus :- "...
In the said case, a quit India notice was issued to the appellant who filed a suit for declaration. Such suit for declaration was filed after the period of limitation and therefore, the suit was dismissed by the trial court. However, this court, held thus :- "... The defendants' quit India notice constitutes a threat of deportation overhanging the plaintiffs every moment and is a continuing tort within the meaning of section 22 of the Limitation Act." A tort is a civil wrong". "A wrong is simply a wrong act - an act contrary to the of right and justice. A synonym of it is injury ..." The said decision was arrived at by this court following the decision of the Apex Court reported in AIR 1959 SC 798 . In the said decision the Apex Court held that:-" the very essence of a continuing wrong is that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury ... a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong." 10. In the instant case also, the issuance of letter dated 15.6.76 is a threat to the appellant and every moment it is continuing so long it is not withdrawn. In view of the above, I am of the opinion that section 22 of the Limitation Act squarely applies in this case also. The trial court completely overlooked these aspects of the matter and gave an erroneous finding holding that the suit is barred by limitation. 11. Next, the Issue No. 2, i.e. maintainability of the suit in view of the proviso to Section 34 of the Specific Relief Act. As per the said section no court shall make any such declaration where the plaintiff, being able to seek further relief than amerce declaration of title failed to do so. In the instant case, the plaintiff filed a suit for declaration and permanent injunction. The prayer for permanent injunction is also a consequential relief. The aforesaid letter dated 15.6.76 is an illegal interference by respondents and therefore, the declaration is necessary to prevent such interference.
In the instant case, the plaintiff filed a suit for declaration and permanent injunction. The prayer for permanent injunction is also a consequential relief. The aforesaid letter dated 15.6.76 is an illegal interference by respondents and therefore, the declaration is necessary to prevent such interference. In this case, mere declaration is enough, inasmuch as granting of a declaration without a consequential relief is maintainable in law if by such declaration, the plaintiff's interest is safeguarded. This Court in the case of Sekh Bhola vs. Mustt Koli Musalmani, ALR 1971 A&N 106, held that proviso to section 34 will not be at all attracted, since no other relief except cancellation of the document was necessary. Here, a mere declaration that the notice dated 15.6.76 was illegal, void and inoperative in law, was enough and i f such declaration is given by a Court, the plaintiff is not required to file any suit for any other relief as the respondents will be debarred from withholding any amount from his bill. The object of proviso to Section 34 of the Specific Relief Act is to avoid multiplicity of suits to prevent a person from getting declaration if of right in one suit and immediately after seeking the remedy, already available, in another. However, it does not mean that the plaintiff must include, in his prayer for relief, all and every claim - that he can make against all and sundry. What the Legislature aims is that, if the plaintiff, on the date of the suit, is entitled to claim, as against the defendant to the cause, some relief other than and consequential upon a bare declaration of right, he must not vex the defendant twice; he is bound to have the matter settled once for all in one suit. In the present case, the plaintiff is not required to seek any consequential relief. But, here, in the case in hand, over and above the declaration, the appellant also sought for permanent injunction restraining the defendants from giving effect to the said letter dated 15.6.76. Thus, if the suit is decreed, the plaintiff's relief will be complete and he is not required to seek any other relief. The trial court, however, dismissed the suit answering the issue No. 2 against the plaintiff on the ground that he ought to have sought relief on mandatory permanent injunction directing the Respondents to pay the money.
Thus, if the suit is decreed, the plaintiff's relief will be complete and he is not required to seek any other relief. The trial court, however, dismissed the suit answering the issue No. 2 against the plaintiff on the ground that he ought to have sought relief on mandatory permanent injunction directing the Respondents to pay the money. In my opinion, this was not at all necessary in the facts and circumstances of the case. 12. In view of the above discussion, I hold that the suit is maintainable under section 34 and the issue No 2 is decided in favour of the plaintiff appellant. I also hold that the suit is not barred by limitation. The issue No. 3 (a), (b), (c) were answered by the trial court in favour of the appellants. 13. Ms. Baruah, the learned counsel for the appellant has stated that because of the letter No. NH/3153/58 dated 15.6.76 the appellant's money has been withheld and therefore, he is entitled to receive interest for deprivation of money, which he was entitled to get after completion of the work. I find force in the submission of Ms Baruah. The Respondents/defendants are to pay interest @ 15% per annum from the date of withholding the amount, till realization. For what have been stated above, I set aside the impugned judgment and decree. The suit is accordingly decreed with costs throughout.