OSMANIA UNIVERSITY Vs. MOHAMMAD RAHMAT ALI HUMAYUN

JUDGEMENT

(1.) The defendant in the suit, Osmania University is the appellant against a confirming judgment decreeing the plaintiff-employee's suit for recovery of arrears. The respondent filed O.S.No. 2325 of 1974 in the IV Assistant Judge, City Civil Court at Hyderabad claiming relief of declaration of his date of birth being 9-12-1918 instead of 9-12-1914 as recorded in his Service Book and for mandatory injunction against retiring him on the basis of treating the earlier date as his date of birth. Though he lost the suit both in the trial Court and in the first appellate Court, yet he succeeded in this Court in S.A.No. 765 of 1976 with the Court decreeing the suit as prayed for. That judgment was delivered on 10-8-1978. Pursuant to the judgment a communication, Ex. A-8 was made by the University to the respondent showing him to have superannuated on 1-1-1979. The respondent was earlier treated as having retired on 1-1-1975 i.e. on the attaining of 60 years from 9-12-1914 rounded upto the the last date of the retiring month.

(2.) The respondent filed O.S.No. 1127 of 1979, the suit out of which the present appeal arises, in the Court of the I Additional Judge, City Civil Court, Hyderabad claiming arrears of pay from 1-4-1975 till 31-12-1978. That was so since in the earlier suit he had secured an order of injunction by virtue of which he had continued in service upto 31-3-1975 and had been paid till then. In the present suit he claimed the dues from 1-4-1975 to 31-12-1978 i.e., the date prior to his retirement. The suit was contested by the appellant substantially on the ground of it being not maintainable being hit by the provisions of Order II, Rule 2 of C.P.C. and also to be barred by limitation. The defence having been rejected by the trial Court as well as the learned single Judge, the present appeal has been preferred.

(3.) The main contention advanced before us is that on the basis of Order II, Rule 2 of C.P.C. which enjoins that the plaintiff in a suit is to include in it the whole of the claim to which he is entitled in respect of a cause of action. It is the argument that since the respondent could have claimed also for arrears of pay in the earlier suit, but did not do so, the suit has to be thrown out. It is also urged that the suit is governed by Article 7 of the First Schedule of the Limitation Act which prescribes the limitation as three years from the date the wages accrued due for which reason the respondent's claim for arrears of salary from 1-4-1975 is not maintainable.