S.N.Sahai - (1.) THIS is a second appeal against the decree dated 28th August, 1980, passed by Sri M. P. Singh, 7th Additional District Judge, Gorakhpur. Uma Shanker Sharma, appellant, instituted a suit against the Union of India, respondent, for declaration that he is a temporary employee having CPC scale of Rs. 260-400 per month with effect from June, 9, 1974 on the post of carpenter in the N. E. Railway and he is entitled to be paid all emoluments and salary attached to that post. He also claimed the relief of injunction to direct the respondent to place him in the said scale and to pay him all the emoluments salary and benefits of the said post. The suit was resisted by the respondent on a number of grounds. It was inter alia pleaded that the suit is barred by time. The learned Munsif (City) Gorakhpur, who tried the suit, accepted this plea and dismissed the suit with costs by judgment dated November 20, 1979. The appellant preferred an appeal against the said judgment and the appeal was also dismissed by the learned Additional District Judge on August 28, 1980. He affirmed the finding of the trial court that the suit is barred by time under Article 113 of the Limitation Act, hence, this appeal.
(2.) IT has been urged on behalf of the appellant that the suit is within time. According to the plaint allegations the appellant was appointed as casual 'Khalasi' on January 27, ,1973, and worked as such till July 10, 1973. He was subsequently appointed as casual carpenter on July 18, 1973 and continuously worked as such till May 8, 1974 for 180 days and in accordance with the Mia Bhoi Tribunals Award after completion of four months of continuous service he was entitled to get the CPC scale. However, he was not given the said scale and was appointed again on the post of casual carpenter on July 4, 1974 and worked as such till December, 8, 1974 and thereafter no work was entrusted to him and his services were terminated without any order. In the written statement it was alleged that the appellant worked as casual labour from June 27, 1973 to July 10, 1973 with break from February 26 to March 20, April 20 to April 25 and May 9 to June 16, 1973. Thus it was denied that the appellant had worked continuously for four months or more as alleged by him. It was further stated that the appellant did not work from July 10 to July 17, 1973. He was again engaged as casual labour (Carpenter) on July 18, and worked as such till December 8, 1974 with a break on 1st and 2nd October, 1974 and again from November 11 to November 17, 1974. On the basis of these allegations the claim of the appellant for the grant of CPC scale or temporary status was repudiated. The learned Munsif held that the appellant worked continuously from November 6, 1973 to May 1, 1974. He had completed continuous service for 120 days upto March 4, 1974 and had thereby became entitled to CPC scale. However the said scale was not granted to him on March 4, 1974. The cause of action, therefore, arose on that every date. Since no suit was filed within three years from March 4, 1974 the suit was barred by time.
(3.) THE contention of the appellant before the lower appellate court was that the cause of action, according to the plaint, arose on May 9, 1974, and the appellant had asked to be placed in CPC scale with effect from June 9, 1974, and finally the cause of action arose, according to him, on December 8, 1974, after which date he was given no work by the respondent. This contention was repelled by the learned Additional District Judge on the ground that the cause of action arose on the date when the appellant was not placed in the CPC scale after completion of 120 days service. THErefore, under Article 113 of the Limitation Act the suit is barred by time. It is common ground between the parties that for purposes of limitation the suit is governed by Article 113 of the Limitation Act, 1963, and the period of limitation is three years from the date when the right to sue accrues. In Mt. Bolo v. Mt. Koklan, for Respondent. AIR 1930 PC 270, it was observed that there can be no right to suit until there is accrual of the right asserted in the suit and its infringement or atleast a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. After referring to the said case and some other cases it was held by their lordships of the Supreme Court in Mst, Rukhmabai v. Laxmi Narain,335 AIR 1960 SC 335, the case on which reliance has been placed on behalf of the appellant, that- "The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right". It may be mentioned that Article 113 reproduces Article 120 of the old Limitation Act, 1908, to which a reference has been made above. The learned counsel for the appellant has submitted that the right to sue accrues when the cause of action arises. In this connection he has referred to Salima Bibi v. Sheikh Muhammad, ILR (18) Allahabad 131, to indicate the classical statement of law that a cause of action means every fact which it would be necessary for the plaintiff to prove if traversed in order to support his right to the piece of evidence which is necessary to prove each fact.;