J.V. Gupta, J. - (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: No suit, such as is described in Sub -section (1), shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises. Admitted facts are that the Plaintiff -Respondent who was a driver of the Cantonment Board, Ambala, and was working in its sanitation branch, was dismissed from service, - -vide order, dated May 21, 1974, by a resolution of the Cantonment Board. The Plaintiff preferred an appeal with the authorities prescribed in the Cantonment Act which was dismissed on September 21, 1974, and then he preferred a revision in the department which was dismissed on June 4, 1975, and the decision was communicated to him on June 10, 1975. The present suit for declaration that the removal of the Plaintiff from the post of driver, - -vide its resolution No. 9, dated May 21, 1974, was illegal, wrongful, unjust, void and ineffective, was filed on November 12, 1975. In the written statement filed on behalf of the Defendant -Appellant, a plea was taken that the suit is barred by time as the same was not filed within six months from the date of the original order of dismissal, i.e. May 21, 1974, as contemplated under Section 273(3) of the Act. Thus the sole question to be decided is as to when the cause of action arose in the present case. The trial Court took the view that the limit of six months is to be counted from the date of the original order, i.e. May 21, 1974, and thus the suit was held to be time barred and consequently it was dismissed as such. It was also observed by the trial Court that a mere provision in the rules entitling an employee to file an appeal or revision cannot be taken to be creating a bar on the right of the employee to file a suit. In appeal filed on behalf of the Plaintiff -Respondent, the lower appellate Court has reversed the judgment of the trial Court and took the view that the suit of the Plaintiff was within limitation under the general Law of Limitation and is within three years from the date of the dismissal, i.e. May 21, 1974. Consequently, the case was remanded for trial on merits. Feeling aggrieved against this order of remand, the Defendant -Appellant has come up in second appeal to this Court.
(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.;