CANTONMENT BOARD, AMBALA Vs. BERHMA NAND

JUDGEMENT

(1.) THE Defendant -Appellant has filed this appeal against the order of the Additional District Judge, Ambala, dated February 17, 1979, whereby the judgment of the trial Court dismissing the suit has been set aside and the case has been remanded to the trial Court for its trial on merits.

(2.) THE sole question to be decided in this appeal is whether the suit is within time or not keeping in view the provisions of Section 273(3) of the Cantonment Act, 1924 (hereinafter to be referred as the Act). For ready reference, Section 273 Sub -section (3) may be seen which reads thus:

(3.) LEARNED Counsel for the Appellant has mainly placed reliance on Sita Ram Goel v. The Municipal Board, Kanpur : A.I.R. 1958 S.C. 1036 and Cantonment Board, Ferozepore Cantt. v. Bajrang Singh, 1961 P.L.R. 407. In Sita Ram's case (supra), the Supreme Court had taken the view that "the principle that the superior courts may not in their discretion issue the prerogative writs unless the Applicant has exhausted all his remedies under the special Act does not apply to a suit." In para 24 thereof it has been observed "that the cause of action in the present case accrued to the Appellant the moment the resolution of the Board was communicated to him and that was the date of the commencement of the limitation. The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under Section 326 of the Act". These observations do support the contention of the learned Counsel for the Appellant that the cause of action will be deemed to have accrued on May 21, 1974, and since the suit has not been instituted within six months thereof, the same is time barred under Section 273(3) of the Act. As regards Cantonment Board, Ferozepore Cantt's case (supra), is concerned, it is not of much help to the Appellant. In para 7 thereof it has been observed that "in these circumstances, I feel that the present case is fully governed by Sub -section (3) of Section 273 of the Cantonment Act and that the period of limitation prescribed for a suit of the present nature is only six months from the date of the accrual of the cause of action which in this case must be taken to have accrued on the 29th of September, 1955 when the order of dismissal was passed. Even if the terminus -a -quo was taken as the date of the dismissal of the second appeal on the 3rd January, 1957, the present suit having been filed on the 2nd December, 1958 is hopelessly barred by time." Under these circumstances, the question of terminus -a -quo was not decided finally in that case because the suit was already time barred even from the date of the dismissal of the second appeal.