Samarendra Bhowmik v. State of Tripura and Ors. — 1997 DIGILAW 176 (GAU)

The judgment and decree dated 8.5.1987 and 18.5.1987 respectively passed by the learned Subordinate Judge. West Tripura. Agartala. in case MS No.29 of 1986 and MS 10 of 1980 dismissing the suit of the plaintiff, appellant herein, is the subject matter under challenge in this appeal. 2. The facts of the case in a very short compass are as follows : The plaintiff, appellant herein, filed a suit being Money Suit No. 10 of 1980 which was subsequently renumbered as Money Suit No.29 of 1986 for compensation as against the defendants/respondents herein to the tune of Rs. 77.0007- on six heads which constituted damage and compensation. According to the plaintiff, he was initially appointed as LD Clerk in the office of the Land Acquisition Collector. West Tripura, Agartala. In the year 1960 he was posted as Receptionist of Circuit House, Agartala. During his service as Receptionist he refused to indulge in malpractices and corruption and as such the defendant No.3, who was Incharge of the Circuit House at the relevant time, became annoyed with the plaintiff and transferred him to Dharmanagar, but no release order was issued. He was also not allowed to sign the attendance register though he was attending his duties at the Circuit House at the relevant time, and. more over, his salary for the month of September. 1969 was withheld and accordingly, he filed a suit for recovery of his salary in the Cdurit of Munsiff and the suit was decreed in his favour and thus the decretal amount was paid to the plaintiff but again, he was not allowed to join his duties and no salary was paid for the period from the date of filing of the suit in the Court of learned Munsiff till the decree was passed in spite of repeated requests, but, ultimately, he was paid his salary upto 21.11.72 in the month of April. 1973. Thereafter he was again transferred to Sonamura by the District Magistrate and Collector, West Tripura, Agartala. and further he was not again paid his salary for the period from May. 1970 to 16th November, 1972. 1973. Thereafter he was again transferred to Sonamura by the District Magistrate and Collector, West Tripura, Agartala. and further he was not again paid his salary for the period from May. 1970 to 16th November, 1972. It is also the case of the plaintiff that due to nonpayment of salary, advance TA and advance pay he could not join his new place of posting at Sonamura and moreover, he was indebted in the local market and his creditors were not ready to allow the plaintiff to leave Agartala without getting their dues. The plaintiff further issued notice under section 80 CPC for his arrear salaries and thereafter, he filed a suit in the Court of Subordinate Judge. In the meantime, two separate disciplinary proceedings were drawn against him by the District Magistrate and Collector illegally and maliciously, but. later on those proceedings were rescinded and dropped on 21.4.76. and as a result of which the plaintiff was allowed to resume his duties on the same date in the office of the District Magistrate and Collector and. later on. the plaintiff was paid his arrear salaries on 6.5.77. According to the plaintiff/appellant the defendants committed gross mischief and their illegal action has lowered his reputation in the estimation of his friends, colleagues, neighbours and relatives and mdrover, his family members and himself had suffered from serious mental agony and pecuniary distress, and. as a result of nonpayment of salaries and illegal proceedings, the plaintiff could not get married in due time. Contending all these facts mentioned above, the plaintiff filed the suit for compensation to the tune of Rs.77.000/-. 3. Suit was contested by the defendants by filing written statements, contending inter alia that there was no post of Receptionist in the Circuit House. Agartala. at the relevant time; the plaintiff was LD Clerk and he was functioning as Receptionist and he never brought to the notice of the superior authority about any corrupt practice as contended by him. He was transferred to the office of the Sub Divisional Officer. Dharmanagar on 2.9.69 by the District Magistrate and Collector. Tripura. in the interest of public service and as such there is no question of abuse or misuse of power on the part of the District Magistrate. After his transfer, the plaintiff was released on 16.9.69 (AN) under a specific order issued by the District Magistrate and Collector. Dharmanagar on 2.9.69 by the District Magistrate and Collector. Tripura. in the interest of public service and as such there is no question of abuse or misuse of power on the part of the District Magistrate. After his transfer, the plaintiff was released on 16.9.69 (AN) under a specific order issued by the District Magistrate and Collector. Tripura so as to enable him to join his new place of posting. The plaintiff was not entitled to get his pay etc beyond 16.9.69 from the office of the District Magistrate and Collector. Tripura, Agartala, and his pay upto 16.9.69 was duly drawn and offered to him, but, he refused to receive the same. The pay and allowances of the plaintiff for the period from 17.9.69 onwards were payable by the Sub Divisional Officer, Dharmanagar who is the drawing and disbursing officer after the transfer and release of the plaintiff. It is also the case of the defendants that the plaintiff refused to accept his release order and did not join his place of posting and he purposely and deliberately refrained from joining his new place of posting by disregarding the orders of the superior authorities and he continued to stay at Agartala unauthorisedly. Apart from it. the plaintiff published a letter in his own hand in the local newspaper namely. 'Dainik Gana Abhijan' dated 1.10.69 criticising the lawful action of the competent authority without obtaining prior permission from the prescribed authority thereby violating the provisions of sub-rule 2 Rule 8 of Central Civil Service (Conduct) Rules 1954, and accordingly, disciplinary proceeding was drawn up against the plaintiff for his misconduct. The plaintiff did not receive the payment of advance pay, TA etc despite the same had been released. During the pendency of the said suit filed by the plaintiff in the Court of the Subordinate Judge for his arrear salary, the plaintiffapproached the disciplinary authority on several times and he expressed verbally his repentence for violation of the rules and repeately requested the disciplinary authority to review the proceeding sympathetically with a view to exonerate the plaintiff from the charges and allow him to join his duties in Agartala instead of Sonamura so that he could look after his ailing mother. Accordingly, the proceedings were reviewed and examined sympathetically and the same was dropped and later on he was allowed to resume his duties at Agartala. Accordingly, the proceedings were reviewed and examined sympathetically and the same was dropped and later on he was allowed to resume his duties at Agartala. There is no laches or negligence on the part of the defendants for which the plaintiff was prevented from his marriage. Drawing up a disciplinary proceeding against the plaintiff does not lower the prestige and dignity of the plaintiff and the members of the family. On the basis of the pleadings of the charges, the learned trial Court framed as many as 10 issues for just determination of the real points of controversy between the parties and those issues are quoted below : (1) Is the suit maintainable in its present form and nature? (2) Has the plaintiff any cause of action for this suit? (3) Is the suit barred by limitation? (4) Is the suit bad for misjoinder and/or non-joinder of necessary parties? (5) Whether the plaintiff's prestige and dignity was lowered by the act of the defendant as alleged by plaintiff? (6) Whether the plaintiff with his family members suffered serious mental agony and distress for pecuniary reasons as a result of non-payment arrears of salaries of the plaintiff unt,il 6.5.77 and due to the commencement of the departmental proceeding and of the passing of the transfer orders which were subsequently dropped or cancelled? (7) Whether the plaintiff suffered any injury and damage due to any laches and/or negligence on the part of the defendants? (8) Whether the defendants intentionally and illegally did not sanction advance such as GPF advance, festival advance, cyclone advance so as to cause suffering to the plaintiff and his family? (9) Is the plaintiff entitled to get a decree for Rs.77.000/- as compensation against the defendants? (10) Whether the plaintiff is entitled to get any other reliefer reliefs? Before the trial Court the plaintiff has examined himself and defendants examined one witness. After hearing the parties and on perusal of the available evidence on record the learned trial Court dismissed the suit of the plaintiff. Being aggrieved the plaintiff filed this appeal. 4. Now this Court is to examine as to whether the learned trial Court in exercising its jurisdiction had acted illegally or with material irregularity or not. while passing the impugned judgment and decree. 5. Being aggrieved the plaintiff filed this appeal. 4. Now this Court is to examine as to whether the learned trial Court in exercising its jurisdiction had acted illegally or with material irregularity or not. while passing the impugned judgment and decree. 5. While deciding the issue No. 1 and 2 the learned trial Court held that the suit is barred by the provisions of law as contemplated under Order 2 Rule 2 of CPC. Shri BB Deb, learned senior counsel, assisted by Shri B. Chakravorty, for the plaintiff-appellant submitted that the suit of the plaintiff is not barred by Order 2 Rule 2 of CPC inasmuch as earlier suits were for release of arrears of salary illegally withheld by the defendant and the present suit is for realisation of compensation for the pecuniary loss suffered due to loss of reputation, prestige dignity and violation of the rights of plaintiff, expenses, cost of suits, mental, agony, etc. These are two separate and distinct cases having different cause of action and as such the suit was not barred by the provisions of law laid down under Order 2 Rule 2 of CPC. Shri BB Deb contended. Supporting the case of the plaintiff-appellant Shri BB Deb, learned senior counsel, had relied upon the decision of the Apex Court rendered in Kewal Singh vs. Mt. Lajwanti reported in AIR 1980 SC 161 and submitted that the Apex Court has laid down the test to detennine the applicability of Order 2 Rule 2 of CPC enabling the plaintiff to file a fresh suit on the basis of a distinct cause of action. At the hearing Shri UB Saha. assisted by Shri TD Mazumdar. learned counsel for the respondents contended that the plaintiff intentionally omitted his claim for compensation in his earlier suits and as such the suit is not maintainable. 6. For better appreciation in this matter of controversy between the parties, 1 hereby reproduce the provisions of Order 2 Rule 2 of CPC as hereunder : "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. (2) ...... (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. (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 purposes 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." From the plain reading of these provisions of law, it is quite crystal clear that in every suit the plaintiff shall include the whole of his/her claim which he/she is entitled, but he/she may relinquish any portion of his/her claim in order to bring the suit within the jurisdiction of any Court and, if plaintiff omits to sue in respect of any portion of his/her claim or he/she intentionally relinquish he/she cannot afterwards sue in respect of such portion so omitted or relinquished. But in the instant case in those two earlier suits of the present plaintiff-appellant he has not claimed any compensation for his sufferings though he has claimed compensation for those period in the present suit. In my considered view omission to sue for want of several reliefs arising out of the same cause of action and the relinquishment thereof without leave of the Court is fatal in subsequent suit on such left out claim in view of the provisions laid down under Order 2 Rule 2 of CPC. Moreover, the present case of the plaintiff is based on the same cause of action of the earlier two suits, wherein he did not include the present claim which he is entitled as alleged by him. So omission to sue this left out claim is fatal to the present case of the plaintiff and he shall not afterwards sue in respect of such left put claim so omitted by him. In the case of Kewal Singh vs. Mt. So omission to sue this left out claim is fatal to the present case of the plaintiff and he shall not afterwards sue in respect of such left put claim so omitted by him. In the case of Kewal Singh vs. Mt. Lajwanti (supra) as cited < and relied upon by the learned counsel for the appellants, the plaintiff, landlady basing her suit claims on 3 distinct cause of action, i.e. under section 14 (a) (1) and section 14 (1) (e) and (f) of the Delhi Rent Control Act, 1958. Subsequently relinquished her claim with regard to the cause of action arising out of section 14 (1) (e) by way of amendment, and as such earlier relinquishment of the cause of action under section 14 (1) (e) and the amendment seeking revival of cause of ' action under section 14 (1) (e) is permissible and it is not barred by Order 2 Rule 2 CPC. In the said case Kewal Singh vs. Mt. Lajwanti (supra) there are 3 distinct-cause of action but, in the instant case of the plaintiff-appellant herein the case is/was only based on the same and similar cause of action. Therefore, the case of Kewal Singh vs. Mt. Lajwanti (supra) does not help the case of the present appellant-plaintiff. There is also no evidence on record for establishing the fact that the plaintiff did not intentionally relinquish his, claim for compensation. In my considered view the learned trial Court made exhaustive findings and gave a reasoned order on the relevant issue No. 1 and 2 and there is no infirmity in such a finding of the learned trial Court. Therefore, this Court also held that the present suit of the plaintiff-appellant is barred by the provisions of the law laid down under Order 2 of Rule 2 of CPC. 7.1 have perused the entire materials and evidences on record as well as the impugned judgment and decree and, I am of the view that the learned trial Court has made an exhaustive finding on the relevant issues namely issue No.l to 10 and there is no infirmity or illegality in the impugned judgment and decree. In the result this appeal is devoid of merit and accordingly it stands dismissed, thus i affirming the impugned judgment and decree of the learned trial Court passed in case MS No.29 of 1986 and MS No. 10 of 1980. In the result this appeal is devoid of merit and accordingly it stands dismissed, thus i affirming the impugned judgment and decree of the learned trial Court passed in case MS No.29 of 1986 and MS No. 10 of 1980. but no costs.