LexSTATE OF MADHYA PRADESH versus STATE OF MAHARASHTRA & ORS.
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I • '·. 555 STATE OF MADHYA PRADESH v. STATE OF MAHARASHTRA & ORS. January 5, 1977 [A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.] Code of Civil Procedure, Order 2 Rule 2, bar under, when operates- Whether applicable when omission to sue has occurred by lack of knowledge or absence of right to claim. Limitation Act, s. 2(1), application to claim for salary-Whether effected by su~pension or dismissal order-Whether salary accrues while such orders remain operative. Dismissing the appeal, the Court, HELD : ( l) A litigant will be barred under Order 2 Rule 2 of the C.P.C. only when he omits to sue for or relinquishes the claim in a suit with know- ledge that he has a right to sue for that relief. A right which he does not know that he possesses or a right which is not in existence at the time of the first suit is not a "portion of his claim" within the meaning of Order· 2 Rule 2 of the C.P .C. The crux of the matter is presence or Jack of awareness of the right at the time of first suit. [561D-E, 562-B] Amant Bibi v. Imdad Hussai1' 15 I.A. 106 at 112, applied. Om Prakash Gupta v. State of Uttar Pradesh [1955] 2 S.C.R. 391, dis- tinguished. High Commissioner for India v. I. M. Lall 75 I.A. 225; Provim;e of Punjab v. Pandit Tara Chand [1947] F.C.R. 89; Stqte of Bihar v. Abdul Majid [1955] 1 S.C.R. 286, referred to. The bar under Order 2 Rule 2 of the C P .C. cannot operate when the liti- gant's cause of action in an earlier suit is totally different from the cause of actio!l in a later suit. [562-C] Pawana Reena Saminathan v. Palaniappa 41 I.A. 142, applied. (2) During the period of suspension the plaintiff was not entitled to salary under Fundamental Rule 53. The cause of action for his salary for such period did not accrue until he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal. [563C-D] Jai Chand Sawhney v. Union of India, (1970] 3 S.C.R. 222 and Sakal Dean Sahai Srivastava v. Union of India, [1974] 2 S.C.R. 485, distinguished. (3) Under Fundamental Rule 52 the pay and alfowance of ,a Government servant who is dismissed or removed from service, cease from the date of his dismissal or removal. Therefore, there would be no question of salary . accru- ing or accruing due so long as orders of suspension and dismissal stand. [564 B-C] Klzem Chand v. Uriion of India, (1963] Supp. 1 S.C.R. 229, followed. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1870 of 1968. (From the Judgment and Decree dated 6-3-1967 of the Bombay High Court (Nagpur Bench) in Appeal No. 101/59.) I. N. Shroff and H. S. Parihar, for the appellant. S. B. Wad and M. N. Shroff, for respondent No. 1. A B c D E F G H 556 SUPREME COURT REPORTS (1977) 2.S.C.R. A A. S. Bobde, G. L.'Sanghi, V. K. Sanghi, Miss Rama Gupta and M. S. Gupta, for respondent No. 2. . B c D E F G H The Judgment of the Court was delivered by RAY, C.J.-This appeal is by certificate from the judgment dated 6 March, 1967 of the High Court of Bombay. T?e appellant is the State of Madhya Pradesh. The first respon- dent 1s the State of Maharashtra. The second respondent is the plaintiff-decree holder. They will be referred to, for short, as Madhya Pradesh, Maharashtra and the plaintilI. The trial court passed a decree in favour of the plaintiff. It was declared that the order dated 9 January, 1954 of the suspension of the plaintiff as well as the order of removal of the plaintiff from ser- vice passed on 2 February 1956 is illegal, void and inoperative. The further declaration was thoat the plaintiff shall be deemed to be conti- nuing in service from 16 September, 1943. A sum of Rs. 64, 588-2-0 was decreed in favour of the plaintiff and Bombay the predecessor of Maharashtra was ordered to pay the same with interest. Both Madhya Pradesh and Maharashtra were ordered to pay costs to the plaintiff. Maharashtra preferred an appeal against the decree. Madhya Pradesh preferred objections against the order of costs. The High Court confirmed the decree and the declarations. The High Court however modified the decree 'alld held Madhya Pradesh liable. The claim of the plaintiff against Maharashtra was dismissed. The plaintiff was appointed Assistant Medical Officer in 1938. In 1939 he was appointed officiating Assistant Surgeon. He was posted at Elichpur (now Achalpur). Jn 1942 he was transferred to Hoshangabad. In 1943 he applied for med
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