PATESHWARI PARSHAD SINGH Vs. A S GILANI

JUDGEMENT

(1.) THIS appeal is directed against a decree for Rs. 18,000/- granted in favour of the plaintiff-respondent against the defendant-appellant.

(2.) ACCORDING to the allegations of the plaintiff he was appointed in the year 1923 as agricultural adviser of the Balrampur Estate belonging to the defendant with benefit of provident fund contribution by the U. P. Court of Wards and by the plaintiff. The Estate was released from the superintendence of the Court of Wards in the year 1937 and thereafter the defendant agreed to retain the plaintiff as agricultural adviser and he continued in service of the Estate. The plaintiff was given an option either to continue to enjoy the benefit of the contributory provident fund as before or to agree to accept on retirement such pension as might be fixed by the defendant at the time of retirement "or in default of such fixation, as may be permissible under the rules of the Raj on the condition of the plaintiff refunding the amount contributed by the Estate towards the provident fund" (vide paragraph 4 of the plaint ). The plaintiff opted for the second alternative and refunded Rs. 17,000/- odd which had been contributed by the Estate towards the provident fund and agreed to pension being given to him after his retirement. In the year 1944 the plaintiff retired from the defendants service with his permission, and the defendant in pursuance of the agreement mentioned above, and also because the amount contributed by the Estate towards the provident fund had been refunded, fixed Rs. 500/- per mensem as the plaintiff's pension which was agreed to be paid wherever the plaintiff might be. The defendant had been paying the plaintiff's pension up to January 1951 when it was stopped. The plaintiff instituted a suit for recovery of pension for the month of February 1951 amounting to Rs. 500/- in the Court of Judge, Small Causes, Simla, on 9-3-1953 in which issues were framed and decided and the suit was decreed. The plaintiff claimed that the aforesaid judgment operated as res judicata in the present case so far as all the points which had been decided previously were concerned. The plaintiff further alleged that a sum of Rs. 32,500/- was due from march 1951 to the end of July 1956 on account of the arrears of pension, but the plaintiff sued only for the recovery of Rs. 18,000/- as pension due from 1-8-1953 to 31-7-1956 and the balance of the claim was given up. The suit was resisted by the defendant and a large number of pleas were raised which need not be stated in their entirety. It was denied that any contract had been made with the plaintiff for payment of the pension. According to the defendant, the sum of Rs. 17,000/- contributed out of the income of Balrampur Raj towards the provident fund was also paid to the plaintiff in 1944 at the time of his retirement with an additional amount of Rs. 8,000/-, the total being Rs. 25,000/, and this payment was ex gratia and an annuity of Rs. 500/- per mensem was further awarded purely "as a favour for such time as the defendant so wished. " the defendant also denied any personal liability to pay the pension to the employees of the Raj after the Raj had ceased to exist. It was, however, not admitted that the defendant was liable personally to make payment periodically of the sum of Rs. 500/- per mensem. According to the defendant, the alleged agreement was without consideration and unenforceable at law and the plaintiff's claim was barred by limitation. The defendant denied that the judgment given by the court of Small Causes on 9-3-1953 operated as res judicata.

(3.) ON the pleadings of the parties the trial Court framed the following preliminary issues: