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Gujarat High Court · body

2010 DIGILAW 484 (GUJ)

Kantilal Karsanbhai Parmar v. Union of India

2010-10-06

BANKIM N.MEHTA

body2010
Judgment Bankim N. Mehta, J.—The second appeal is admitted on the following substantial question of law:— (A) Whether the suit is barred by limitation? 2. The appellant was a Senior Clerk in the Railway Hospital of Western Railway at Rajkot and was confirmed in the scale of Rs. 110-180(a) w.e.f. 4.4.1963 in the Works Group vide Memorandum dated 28.9.1964. As per the circular in force at the relevant time, he was eligible for further promotion in the same group. By subsequent circular, the Railway Administration ignored the circular adversely affecting the seniority of the appellant and even though, the appellant was successful in the suitability test, his chance of promotion had become remote, as in the year 1968, the Divisional Superintendent of Rajkot had transferred the lien of 11 clerks. The appellant made representations dated 28.12.1968 and 1.4.1969. Thereafter, again representation was made to the Railway Board, but it was not forwarded and the appellant was informed that no further request would be entertained. Therefore, the appellant filed a suit for declaration that memorandum issued by the Divisional Officer, Western Railway dated 16.12.1968 transferring the lien of 11 persons and the promotion given to one Mr. HT Raval who was one of them from 24.2.1969 in the grade of Rs. 130-300 was void, inoperative and for a declaration that the appellant was entitled for promotion in the group of Rs. 130-300 and for a direction to the Railway authority to promote him in the grade of Rs. 130-300 w.e.f. 24.2.1969 with all incidental benefits. 3. The suit was resisted by the railway authority by filing written statement at Exh-26. The railway authority took various contentions including the contention of limitation contending that suit was beyond the period of limitation, as the cause of action was not a continuous cause of action. 4. The trial Court, after recording evidence and hearing the learned advocates for the parties, dismissed the suit. Therefore, the appellant preferred appeal being Civil Appeal No. 77 of 1979 in the Court of learned Joint District Judge, Rajkot. The first appellate Court, after hearing the learned advocates for the parties, by judgment dated 25th September, 1980, dismissed the appeal. Being aggrieved by the said decision, the appellant has preferred this second appeal under section 100 of the CPC on the substantial question of law formulated herein above. 5. I have heard learned advocate Mr. DM Devnani for Mr. The first appellate Court, after hearing the learned advocates for the parties, by judgment dated 25th September, 1980, dismissed the appeal. Being aggrieved by the said decision, the appellant has preferred this second appeal under section 100 of the CPC on the substantial question of law formulated herein above. 5. I have heard learned advocate Mr. DM Devnani for Mr. Yogesh Lakhani for the appellant and learned advocate Mr. Bipin Mehta for contesting Respondent No. 1. 6. Learned advocate Mr. Devnani for the appellant has submitted that the orders in dispute were though passed in the years 1968 and 1969, the appellant made representations to the authority and the last representation came to be rejected in the year 1974 and therefore, the cause of action would start running from that date. The suit was filed on 4.7.1975 and therefore, it was within the prescribed period of limitation as Article 58 of the Limitation Act, 1963 (the Act) provides for limitation of 3 years and therefore, the Courts below committed error in dismissing the suit on the ground of limitation. 7. As against this, learned advocate Mr. Mehta for the contesting respondent No. 1 has submitted that the cause of action accrued in the years 1968 and 1969 and the alleged representations were made in the year 1974. But meanwhile, the appellant was promoted and therefore, the challenge to the action taken in the years 1968 and 1969 was clearly barred by limitation and therefore, the Courts below were justified in dismissing the suit. 8. It is not in dispute that the case of the appellant is governed by Article 58 of the Act. It provides that in the suit, to obtain any declaration, the period of limitation is 3 years and the time begins to run when the right to sue first accrues. In the instance case, the appellant has challenged the orders passed on 16.12.1968 and 4.2.1969. The appellant has sought declaration with regard to these orders. Therefore, the cause of action would start running from these dates, as the right to sue accrued first on these dates. Admittedly, the suit is not file within 3 years from these dates. Therefore, the suit was barred by law of limitation. It is also submitted by the learned advocate for the appellant that the cause of action started when the representations were rejected in the year 1974. Admittedly, the suit is not file within 3 years from these dates. Therefore, the suit was barred by law of limitation. It is also submitted by the learned advocate for the appellant that the cause of action started when the representations were rejected in the year 1974. It appears that the appellant made two representations in the years 1968 and 1969, but did not take any action for very long time and slept over his alleged right. It is stated that a promotion was given to the appellant, but he did not challenge the earlier orders. In these circumstances, it cannot be said that the cause of action was continuous cause of action. Even, it is difficult to accept that the cause of action started running in the year 1974 when the alleged representation was rejected. In view of this, submission that it was a continuous cause of action cannot be accepted and therefore, the substantial question of law formulated by this Court is required to be answered in affirmative. 9. In the result, the appeal fails and stands dismissed.