STATE OF UTTAR PRADESH Vs. MOOL CHAND WAHI

JUDGEMENT

(1.) THE defendant State of Uttar Pradesh has filed this appeal against the decree passed by the first appellate court. The suit giving rise to this appeal was instituted by the plain- tiff for recovery of arrears of salary for the period 1-3-1955 to 31-3-1960. The trial court had decreed the entire suit, On appeal filed by the State the decree was modified and a sum of Rs. 168/- al lowed by the trial court in respect of the claim for good conduct allowance was disallowed.

(2.) THE facts of the case are that by an order passed by the General Mana ger, U. P. Roadways on 13-8- 1953 the petitioner was dismissed from service. He filed a suit on 18-3-1955 being suit No. 165 of 1955, on the allegation that the order of dismissal was void and in operative. In the suit he claimed salary due for the period 20th June 1953 to 28th February, 1955. The suit was decreed. The plaintiff had not claimed salary for the pendency of the suit. Subsequently the plaintiff was re-instated but was not paid the salary due to him. He accord ingly filed the present suit giving rise to this appeal. In this suit the plaintiff claimed salary with effect from 1st of March 1955 to 31st of March 1960. The suit was instituted on April 2, 1960. The appeal was filed in the court below by the State with regard only to the claim of salary due to the plaintiff from 1st of March 1955 to 31st of January 1957 on the ground that it was barred by limita tion. Sum of Rs. 168/- was further claim ed as not payable to the plaintiff which was allowed as good conduct allowance by the trial court. The lower appellate court did not accept the contention about bar of limitation and held that the suit for the entire claim was within limita tion as the limitation was saved by vir tue of Section 19 of the Indian Limita tion Act. 1908. It held that the letter written by the Assistant General Mana ger on 6-2-1958 which was Exhibit 7 in the case was an acknowledgment within the meaning of Section 19 of the Limita tion Act and it saved the limitation for the entire claim. It also held that the subsequent letters Exhibits 6, 5 and 4 which were written on 4th of March 1958. 21st of March 1958 and 8th April 1958 by the Assistant General Manager also impliedly amounted the acknowledg ment sufficient to save limitation.

(3.) SO far as the first ground is concerned, it is not open to the appellant to raise it in the second appeal because, although the bar of Order 2, Rule 2, Civil P. C. was pleaded in the trial court it was not raised or pressed in the first appeal. Even on merits there is no force in the contention as the claim is of a time subsequent to the institution of the previous suit in which the plaintiff had claimed that the order of dismissal was void. The salary for this period was not payable on the date of the institution of the earlier suit and the cause of action for the relief claimed in the present suit had not arisen. The claim cannot thus be barred by Order 2, Rule 2. Civil P. C.