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2012 DIGILAW 1031 (CAL)

Babulal Rana v. STATE OF WEST BENGAL

2012-12-12

HARISH TANDAN

body2012
Judgment :- Harish Tandon, J.: The point is raised as to the maintainability of this writ petition having barred under Order 2 Rule 2 of the Code of Civil Procedure and explanation appended to Section 11 of the Code of Civil Procedure. The facts are not disputed. In a previous litigation being W.P. 16738 (W) of 2010, the petitioner challenged the action of the competent authority in deducting and/or adjusting certain amount as excess payment paid to the petitioner from the retrial benefits. In the said writ petition, a report was called for from the District Inspector of School (SE), Purba Medinipur which revealed that such excess payment was not paid on commission of any fraud or misrepresentation by the petitioner. The said writ petition was disposed of on December 7, 2010 declaring the entitlement of the petitioner for refund of an amount which deducted from his retrial benefit. It would be profitable to quote the excerpts of the order which reads thus: “ He shall also be entitled to full retrial benefits calculated on the basis of last pay drawn at the time of his retirement. All financial benefits in terms of this order including arrears shall be released in his favour as early as possible but not later than four months from date of receipt of a copy of this order.” There is no dispute that the authority concerned has complied the said order. The full retrial benefit calculated on the basis of last paid drawn together with all financial benefits including the arrears are paid to the petitioner. In this writ petition, the writ petitioner primarily prayed for an order for payment of interest over an above the amount which was earlier deducted and/or adjusted as excess payment to the petitioner. A point is raised that the cause of action to claim the interest is one and identical as the petitioner could have very well prayed for an order for interest in an earlier writ petition while claiming the refund of the illegal deduction and/or adjustment of an amount as excess payment. The learned Advocate appearing for the petitioner, however, submits that the cause of action for the claim of an interest accrues after such claim is crystallized in the order which disposed of the earlier writ petition. The learned Advocate appearing for the petitioner, however, submits that the cause of action for the claim of an interest accrues after such claim is crystallized in the order which disposed of the earlier writ petition. It is further submitted that when the Court directed the payment of the full retrial benefits including the arrears, the payment of interest is embedded therein and, therefore, the rejection of an interest by the Additional Treasury Officer, Egra is not sustainable. It is strenuously argued that a plea of bar under Order 2 Rule 2 of the Code should not be entertained unless the entire pleadings of an earlier proceeding is placed. In support of such contention, the reliance is placed upon a judgment of the Supreme Court in case of Alka Gupta vs. Narender Kumar Gupta reported in (2010) 10 SCC 141 . In support of the contention that the claim for interest is separate and distinct, reliance is placed upon a judgment of the Supreme Court in case of Gurbux Singh vs. Bhooralal reported in AIR 1964 SC 1810 and Kewal Singh vs. Mt. Lajwanti reported in AIR 1980 SC 161 and a division bench judgment of this Court in case of State of West Bengal and ors Vs. Sri Sheo Ram Giri reported in (2011) 1 WBLR (Cal) 486. It is contended on behalf of the state that the cause of action for claim of an interest arises from the deduction and/or adjustment of an amount paid in excess to the petitioner and, therefore, the subsequent writ petition on the self-same cause of action is not maintainable. It is further submitted that the petitioner having omitted to claim the interest in the first writ petition, the claim made in the instant writ petition is barred under Order 2 Rule 2 of the Code of Civil Procedure. The cause of action is not a stray event or single event but the bundle of facts which otherwise proved would entitle the initiator to get the desired relief. Cause of action though not defined in any legislation but by catena of decision rendered by the Apex Court as well as the different High Courts, it is considered as the bundle of facts. Cause of action though not defined in any legislation but by catena of decision rendered by the Apex Court as well as the different High Courts, it is considered as the bundle of facts. Before proceeding to deal with the points emanates from the respective submissions, it is required to be seen whether the Code of Civil Procedure has any manner of applicability in a writ proceeding initiated before this Court. The Appellate Side Rules framed by the Full Court for regulating the procedure of the writ proceedings is required to be look into. Rule 53 of the Rules framed for an application under Article 226 of the Constitution provides the applicability of the Code of Civil Procedure which reads thus: “53. Save and except as provided by these Rules and subject thereto, the provisions of the Code of Civil Procedure (Act V of 1908) in regard to suits shall be followed, as far as it can be made applicable, in all proceedings under Article 226 and nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of this Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” 53A. The Court may in proceedings under this Chapter impose such terms as to costs and as to giving of security as it may deem fit. Where costs have been awarded by the Court in a writ petition or in an appeal from an order passed on a writ petition, any party entitled thereto may apply to the Court for execution of the order. The application shall be accompanied by an affidavit stating the amount of costs awarded. The Court may direct the order to be sent to the District Court of the District in which the order is to be executed. The order may be executed by such Court or be transferred for execution to any subordinate Court.” Therefore, the provisions contained in the Code of Civil Procedure can be attracted to the writ proceeding. Order 2 Rule 2 of the Code is one of the provisions which create an embargo in entertaining the claim made in the subsequent suit if the same is founded on the cause of action pleaded in an earlier suit. Order 2 Rule 2 of the Code is one of the provisions which create an embargo in entertaining the claim made in the subsequent suit if the same is founded on the cause of action pleaded in an earlier suit. Rule 2 (2) of Order 2 of the CPC creates a bar in entertaining a subsequent suit for a relief which was available in the earlier proceeding but omitted. Let me make a scrutiny whether the petitioner could have claimed the interest over the said amount which was adjusted and/or deducted as excess payment in an earlier writ proceeding. The monetary claim, be it on account of non-payment or illegal and/or wrongful adjustment and/or deduction from the other claim cannot stand on a different footing. It is a claim of money which is either not paid or unreasonably and illegally withheld and/or adjusted and/or deducted from the other amount. The cause of action for claim of the interest can be founded on the illegal adjustment and/or deduction of an amount and cannot stand on a different footing. But having chosen to be claim for an amount illegally and/or adjusted the claim for an interest also flows therefrom based on this self-same cause of action. Resort can be had to Section 34 of the Code of Civil Procedure which provides that the Court while granting a decree for payment of money may also order the interest at such rate as the Court deems reasonable to be paid on the principle sum adjusted. Therefore, the claim for interest cannot stand on an independent footing but founded on the cause of action when a claim is made for refund of the ascertained amount illegally and wrongfully adjusted against the legitimate claim. It has been held in case of Commissioner of Income Tax, Bombay vs. T.P. Kumaran reported in (1996) 10 SCC 561 that a separate proceeding for claim of an interest when an earlier claim for arrear of salaries does not include the same is barred under Order 2 Rule 2 of the Code of Civil Procedure in these words: “3. This appeal by special leave arises against an order of the Central Administrative Tribunal, Ernakulam made on 16-8-1994 in OA No. 2026 of 1993. The admitted position is that while the respondent was working as Income Tax Officer, he was dismissed from service. He laid a suit against the order of dismissal. This appeal by special leave arises against an order of the Central Administrative Tribunal, Ernakulam made on 16-8-1994 in OA No. 2026 of 1993. The admitted position is that while the respondent was working as Income Tax Officer, he was dismissed from service. He laid a suit against the order of dismissal. The suit came to be decreed and he was consequently reinstated. Since the arrears were not paid, he filed a writ petition in the High Court. The High Court by order dated 16-8-1982 directed the appellant to pay all the arrears. That order became final. Consequently, arrears came to be paid. Then the respondent filed an OA claiming interest at 18% per annum. The Administrative Tribunal in the impugned order directed the payment of interest. Thus, this appeal by special leave. 4. The Tribunal has committed a gross error of law in directing the payment. The claim is barred by constructive res judicata under Section 11, Explanation IV, CPC which envisages that any matter which might and ought to have been made ground of defence or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. Hence when the claim was made on earlier occasion, he should have or might have sought and secured decree for interest. He did not seek so and, therefore, it operates as res judicata. Even otherwise, when he filed a suit and specifically did not claim the same, Order 2 Rule 2 CPC prohibits the petitioner to seek the remedy separately. In either event, the OA is not sustainable.” It is also held in case of Kewal Singh (supra) that the provision contained under Order 2 Rule 2 of the Court applies to the cases where there is an omission to sue a portion of the cause of action on which the proceeding is based, but it has no manner of application if the cause of action is separate and distinct in the fresh proceeding. However, it has been held in case of Gurbux Singh (supra) that the plea of bar under Order 2 Rule 2 of the Code can be established only if the parties files their evidence including the pleading in the previous proceeding for the purpose of ascertainment of the cause of action. However, it has been held in case of Gurbux Singh (supra) that the plea of bar under Order 2 Rule 2 of the Code can be established only if the parties files their evidence including the pleading in the previous proceeding for the purpose of ascertainment of the cause of action. Much emphasis is made to unreported judgment of the Supreme Court in case of Raju Jhurani vs. M/s Germinda Pvt. Ltd. B (Civil Appeal No. 5886 of 2012 decided on October 16, 2012) that the bar under Order 2 Rule 2 of the Code is not attracted as the claim for interest was not available when an earlier writ proceeding was filed. On noticing the said judgment, it appears that the suit for recovery of possession was instituted under the provisions of the West Bengal Premises Tenancy Act, 1956 which was subsequently decreed and the possession was obtained in execution thereof. Subsequently, a winding up proceeding was initiated under the Companies Act, 1956 for arrear of rent. The Company Court dismissed the said petition by invoking the bar created under Order 2 Rule 2 of the Code. The Division Bench although maintained the order of dismissal of the winding up petition but observed that the petitioning creditor therein would be entitled to claim the amount of arrear of rent in an appropriate proceeding before the appropriate forum. It has been held by the Apex Court that there is no provision for recovery of the arrear of rent under the West Bengal Premises Tenancy Act, 1956 and, therefore, the bar imposed under Order 2 Rule 2 of the Code cannot apply. The aforesaid decision cannot apply in the facts of the present case, for the simple reason that if in an earlier proceeding instituted under the Special Act which does not provide for a relief claimed in a subsequent proceeding, the subsequent proceeding cannot fail under the provisions of Order 2 Rule 2 of the Code. The writ proceeding are decided on affidavit evidence. The document annexed to the writ proceeding if sufficiently indicates the cause of action pleaded therein, there is no impediment on the part of the Court in deciding the said issue if raised. The writ proceeding are decided on affidavit evidence. The document annexed to the writ proceeding if sufficiently indicates the cause of action pleaded therein, there is no impediment on the part of the Court in deciding the said issue if raised. To attract the bar under Order 2 Rule 2 of the Code what is required to be seen is whether the relief claimed in both the proceedings arises from the same cause of action as has been held in Alka Gupta(supra). The Division Bench of this Court in case of Sri Sheo Ram Giri (supra), however, held that awarding of an interest on the delayed payment of pension and gratuity amount in a separate writ petition is maintainable. The Division Bench did not have any occasion to consider the plea of bar under Order 2 Rule 2 of the Code of Civil Procedure. The Apex Court in case of Commissioner of Income Tax, Bombay (Supra) negative the claim by applying the bar created under Order 2 Rule 2 of the Code and, therefore, the judgment rendered by the division bench in case of Sheo Ram Giri (supra) cannot be of any help to the petitioner. In view of the above, the writ petition is dismissed. However, there shall be no order as to costs.