STATE OF PUNJAB Vs. SUDARSHAN KUMAR

JUDGEMENT

(1.) THE facts, leading to filing of this appeal, are that the respondent-plaintiff was appointed by the Chief Medical Officer, Patiala, on 21.11.1968 and was removed from service on 22.12.1972. He challenged the order of his removal and filed a civil suit, which was decreed on 23.9.1978. Consequently, the respondent-plaintiff filed an execution and an amount of Rs.1787425P was paid to him on 8.2.1981. Another sum of Rs.14,166-10P was paid to him on 25.8.1982. THEreafter, the respondent-plaintiff filed a suit alleging that the amount as paid to him was unjustly detained and, thus, he was entitled to receive the same with interest @ 12% per annum compounded annually. THE respondent-plaintiff has pleaded that the action in not releasing the arrears with interest was illegal, untravires and unconstitutional.

(2.) THE suit was contested by the State. A preliminary objection was raised that the suit was bad for non-joinder and misjoinder of necessary party. It was also stated that there was no cause of action to file the present suit. On merits, the date of appointment of the respondent-plaintiff was admitted and also the fact that he was removed from service in the year 1972. THE fact that his suit was decreed and the payment was released was also admitted. It was, however, pleaded that no order regarding interest was passed in the decree sheet dated 23.9.1978 and accordingly the action of the Court in granting interest was not legal. THE suit was tried on the following issues: 1. Whether the plaintiff is entitled to declaration prayed for? OPP 2. Whether the suit is bad for non-joinder and misjoinder of parties?OPD 3.Whether the suit is not maintainable? OPD 4.Whether the plaintiff has no cause of action? OPD 5. Whether the notice u/s 80 CPC is not valid? OPD 6.Relief. THE suit, however, was dismissed on 26.10.1987. Feeling aggrieved against the same, the respondent-plaintiff filed an appeal. THE impugned judgement passed by the Trial Court was set-aside and the suit was decreed on 28.9.1989. THE State accordingly has filed the present Regular Second Appeal. Learned State counsel has placed before me the following substantial questions of law, though no formal application in this regard was filed: 1. Whether the subsequent suit claiming interest on the same cause of action would be barred by the principle of constructive res judicata? 2.Whether the plaintiff is entitled to interest on the payment when the same is not awarded in the previous decree? 3.Whether the plaintiff can file a subsequent suit for interest when the subject matter has become final between the parties? 4. Whether the Appellate Court has erred in reversing the judgment of Trial Court while holding that the judgment in consequence of which the plaintiff was paid the amount was not required to be placed on record? 5. Whether the Appellate Court can grant relief of interest without appreciating the facts of the case and only on the ground that legally interest is liable to be paid? During the course of pleadings, however, the State counsel has restricted her prayer only to the aspect that the present suit as filed would be barred by the principle of constructive res judicata. As such, judgment of the Appellate Court in granting interest can not be sustained.

(3.) IN support, the counsel has placed reliance on Devilal Modi Vs. Sales Tax Officer, Ratlam and others, AIR 1965 SC 1150, State of U.P. Vs. Nawab Hussain, (1977) 2 Supreme Court Cases 806 and Workmen of Cochin Port Trust Vs. Board of Trustees of the Cochin Port Trust and another, (1978) 3 Supreme Court Cases 119.