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2017 DIGILAW 712 (HP)

Vidya Devi v. Union of India

2017-06-23

DHARAM CHAND CHAUDHARY

body2017
JUDGMENT : Dharam Chand Chaudhary, J. Challenge herein is to an order dated 22nd November, 2016 passed in an application filed under Order 23 Rule 1 of the Code of Civil Procedure with a prayer to allow the petitioners (plaintiffs in the trial Court) to withdraw the suit she filed in the trial Court for recovery of Rs.5,53,938.90/- against the Union of India and others, the defendants. The application for withdrawal of the suit has been filed on the grounds inter-alia that on coming into force the Armed Forces Tribunal Act, 2007 on and w.e.f. 15.06.2008, the service matters pertaining to armed personnels/members of armed forces under Section 33 of the Act, the jurisdiction of all Courts ceases to exist and it is only the Armed Forces Tribunal constituted under the Act can entertain and decide the same. 2. The application was resisted and contested on the grounds inter-alia that no doubt under Section 33 read with Section 34(1) of the Armed Forces Tribunal Act, 2007, all matters pertaining to the members of armed forces stand transferred to the Armed Forces Tribunal, however, in view of the lis qua release of pensionary benefits in respect of deceased Sepoy Khazan Chand, husband of the petitioner-plaintiff No.1 and father of petitioners-plaintiffs No. 2 and 3, the Tribunal has no jurisdiction to entertain and try such dispute. 3. On hearing learned counsel on both sides, I am not in agreement with learned trial Judge for the reason that entitlement of the petitioners-plaintiffs to receive the pensionary benefits on the death of their predecessor deceased Sepoy Khazan Chand is a service condition and such dispute can only be entertained and decided by Armed Forces Tribunal. Since the Armed Forces Tribunal Act came into being after the institution of the suit, therefore, in view of this development the suit may not succeed and ultimately fail for want of jurisdiction of the Civil Court to try and decide the same. Being so, the Court below should have permitted the petitioners-plaintiffs to withdraw the suit with liberty reserved to the plaintiffs to resort to appropriate remedy available to them in accordance with law. The impugned order, as such, is quashed and set aside. Consequently, the petitioners-plaintiffs are permitted to withdraw the pending suit in the trial Court with liberty reserved to resort to appropriate remedy available to them in accordance with law. 4. The impugned order, as such, is quashed and set aside. Consequently, the petitioners-plaintiffs are permitted to withdraw the pending suit in the trial Court with liberty reserved to resort to appropriate remedy available to them in accordance with law. 4. The petition is accordingly allowed and stands disposed of. Pending applications, if any, shall also stand disposed of.