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1997 DIGILAW 403 (HP)

BHUNI DEVI v. THE ACCOUNTANT-GENERAL, HP.

1997-11-13

KAMLESH SHARMA, SURINDER SARUP

body1997
JUDGMENT KAMLESH SHARMA, J.—This appeal is admitted and heard finally with the consent of the learned counsel for the parties. It is directed against the order dated 15th January, 1997 whereby the District Judge, Chamba has returned the plaint to the appellant-plaintiff Smt. Bhuni Devi under Order 7 Rule 10 C.P.C. for presenting the same to the Court having jurisdiction in the matter. The impugned order was passed in the appeal filed by the respondent-defendant No. 4 Smt. Nikko Devi, who was aggrieved by the decree and judgment dated 7-4-1995 passed by the Senior Sub-Judge, Chamba in favour of the appellant-plaintiff, Smt. Bhuni Devi declaring her entitled to draw family pension of deceased Jagat Ram as his legally wedded wife and the respondent-defendant No. 4 Smt. Nikko Devi was restrained from claiming family pension of deceased Jagat Ram holding that she was not his legally wedded wife. 2. We have heard the learned counsel for the parties and gone through the record. The learned counsel for the appellant-plaintiff Smt. Bhuni Devi has urged that there are two parts of relief sought for by his client. The first part pertains to declaration that she was the only legally wedded wife of deceased Jagat Ram and respondent-defendant No. 4 Smt. Nikko Devi had no relation with him, for which the Civil Court has the jurisdiction. The second part of the relief pertains to the claim of the appellant-plaintiff Smt. Bhuni Devi for family pension of deceased Jagat Ram as his only legally wedded wife and for injunction against respondent-defendant No, 4 Smt. Nikko Devi restraining her from drawing family pension being the legally wedded wife of deceased Jagat Ram for which the State Administrative Tribunal has the jurisdiction. Relying upon the judgment of the Calcutta High Court in Smt. Sheela Adhikari v. Rabindra Nath Adhikari and others, AIR 1988 Calcutta 273. The learned Counsel has urged that it was not proper for the District Judge to return the plaint. Relying upon the judgment of the Calcutta High Court in Smt. Sheela Adhikari v. Rabindra Nath Adhikari and others, AIR 1988 Calcutta 273. The learned Counsel has urged that it was not proper for the District Judge to return the plaint. Instead, he should have decided the appeal in respect of the issue triable by the Civil Court with regard to the claim of the appellant-plaintiff Smt. Bhuni Devi that she was the only legally wedded wife of deceased Jagat Ram and in respect of the other issue, that she is entitled family pension of deceased Jagat Ram and that the respondent-defendant No. 4 Smt. Nikko Devi may be restrained from claiming the pension of deceased Jagat Ram as his legally wedded wife, the appellant-plaintiff could be directed to approach the State Administrative Tribunal. 3. On the other hand, the learned counsel for Smt. Nikko Devi has opposed this appeal and supported the impugned order. According to the learned counsel both the reliefs sought by the appellant-plaintiff, Smt. Bhuni Devi, are so inextricably interwoven that these cannot be separated. The relief of declaration that she was the legally wedded wife of deceased Jagat Ram has been sought to get further relief of family pension in her capacity as legally wedded wife of deceased Jagat Ram. Referring to Section 34 of the Specific Relief Act, the learned counsel has further urged that in the absence of prayer for consequential relief of permanent injunction restraining respondent-defendant No. 4 Smt. Nikko Devi from claiming family pension of deceased Jagat Ram, the suit of the appellant-plaintiff Smt. Bhuni Devi for a mere declaration is barred. In support of his submission, the learned counsel has cited the latest judgment of the Supreme Court in Muni Lal v. Oriental Fire and General Insurance Co. Ltd. and another, (1996) 1 SCC 90. 4. After giving its best consideration to the respective contentions of the learned counsel for the parties, we find that they have not disputed that so far as the relief of pension is concerned, the jurisdiction of Civil Court is specifically barred under Section 28 of the Administrative Tribunals Act, (hereinafter called "the Act"). Section 28 of the Act provides as follows : "28. Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the Constitution. Section 28 of the Act provides as follows : "28. Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the Constitution. On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any service or persons appointed to any Service or post no Court except— (a) the Supreme Court or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force, shall have or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters. 5. Admittedly deceased Jagat Ram retired as an employee of the State of Himachal Pradesh and the matter relating to his family pension is a service matter, as per its definition under Section 3 (q) (i) of the Act for which only the HP. State Administrative Tribunal has the jurisdiction. 6. Therefore, the question arises whether the District Judge should have decided the issue of status of the appellant-plaintiff Smt. Bhuni Devi as the only legally-wedded wife of deceased Jagat Ram and forwarded her to the H.P. State Administrative Tribunal for deciding her claim of family pension or he should have returned the plaint as he has done in the present case. In our opinion, the District Judge has rightly returned the plaint as the suit of the appellant-plaintiff Smt. Bhuni Devi for mere declaration that she was the only legally wedded wife of deceased Jagat Ram without the declaration that she is entitled to family pension and consequential relief of injunction against respondent-defendant No. 4 Smt. Nikko Devi was not maintainable under Section 34 of the Specific Relief Act. Section 34 of the Specific Relief Act is : "34. Section 34 of the Specific Relief Act is : "34. Discretion of Court as to declaration of status or right.—Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence and for whom if in existence, he would be a trustee." 7. The learned Judges of the Supreme Court in Para 4 of their judgment in Muni Lal v. Oriental Fire and General Insurance Co. Ltd and another (supra) have clearly laid down that proviso to Section 34 of the Specific Relief Act puts the controversy beyond pale of doubt that "no Court shall make any such declaration where the plaintiff, being able to ask for other relief than a mere declaration of title, omits to do so." In other words, mere declaration without consequential relief does not provide the needed relief in the suit; it would be for the plaintiff to seek both the reliefs. In the case before the Supreme Court, the appellant had merely asked for declaration that he was entitled to the payment for the loss of the truck in terms of the contract but not consequential relief of payment of the quantified amount for which he had sought amendment which was not permitted having been barred by time. 8. Applying the ratio of this judgment to the facts of the present case, we have no hesitation to hold that the civil suit filed by the appellant-plaintiff Smt. Bhuni Devi was not maintainable for mere declaration that she was the only legally-wedded wife of deceased Jagat Ram. 8. Applying the ratio of this judgment to the facts of the present case, we have no hesitation to hold that the civil suit filed by the appellant-plaintiff Smt. Bhuni Devi was not maintainable for mere declaration that she was the only legally-wedded wife of deceased Jagat Ram. If the Civil Court could neither give declaration that she was entitled to family pension of deceased Jagat Ram nor the consequential relief of injunction restraining the respondent-defendant Smt Nikko Devi from claiming the family pension of deceased Jagat Ram as his legally wedded wife, it could not give mere declaration in respect of the status of the appellant-plaintiff Smt. Shuni Devi. In fact, the appellant plaintiff Smt. Bhuni Devi has sought the relief of declaration of her status as the only legally-wedded wife for the purpose of claiming family pension. It is not in dispute that while deciding the claim of the appellant-plaintiff Smt. Bhuni Devi for family pension of deceased Jagat Ram, the Administrative Tribunal has the jurisdiction to decide about her status as the only legally-wedded wife of deceased Jagat Ram as it is necessary for deciding the entitlement of pension of the appellant-plaintiff Smt. Bhuni Devi. 9. By now, it is well settled that for the matters covered under the Administrative Tribunals Act, 1985, any person interested may approach the Administrative Tribunal as held by a Full Bench of this Court in Arti Gupta v. State of HP., C.W.P. No. 1665 of 1996. 10. So far as the judgment of the Calcutta High Court in Smt. Sheela Adhikari v. Rabindra Nath Adhikari and others (supra) is concerned, it is on its own facts wherein the learned Judges have held that where some of the causes of action united in the plaint are arising within the territorial jurisdiction of the Court where the suit has been filed, while other causes of action joined therein are not triable by it for want of such jurisdiction, neither the suit can be dismissed as a whole nor the plaint can be returned as a whole, for the plaintiff has a right to a judgment on such causes of action as are otherwise cognizable by that Court. The course suggested by the learned Judges was that the Court should call upon the plaintiff to amend his plaint by striking out all such causes of action as are beyond its jurisdiction and then proceed with the plaint in respect of the remaining causes of action which are within its jurisdiction. If the plaintiff does not amend the plaint, the Court has to proceed to judgment with the plaint as it stands unamended on all such causes of action as are within its cognizance and to dismiss the suit in respect of the causes of action outside its jurisdiction. 11. Such a course cannot be adopted in the case in hand as by deleting the relief of declaration that the appellant-plaintiff Smt. Bhuni Devi is entitled to family pension of deceased Jagat Ram as his only legally-wedded wife and consequential relief of injunction against the respondent-defendant No. 4. Smt. Nikko Devi that she may be restrained from claiming pension of deceased Jagat Ram as his legally wedded wife the suit for mere declaration that the appellant-plaintiff Smt. Bhuni Devi is the only legally-wedded wife of deceased Jagat Ram is not maintainable. The result of the above discussion is that there is no merit in this appeal and it is rejected and the impugned order dated 15th January, 1997 passed by the District Judge, Chamba, is affirmed. There is no order as to costs. Appeal dismissed.