A.D. Koshal, J. - (1.) THIS petition under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India seeks the revision of an order dated 2nd of November, 1972, passed by Shri I.P. Anand, Subordinate Judge 1st Class, Ambala City, deciding a preliminary issue arising in a suit for declaration.
(2.) CERTAIN facts are not, disputed and may be stated here. Plaintiff Burma Nand, who is the Respondent before me, joined the Jagadhri Railway Workshop as a Skilled Fitter on the 2nd of January, 1953. He continued to work in that capacity till 19th of August, 1968, when he was charged with serious misconduct. Ultimately, the Works Manager, Jagadhri Railway Workshop, removed him from service through an office memorandum, dated the 24th of February, 1969. He filed an appeal, but the same was rejected by the Appellate Authority on the 31st of July, 1969. In his suit the Plaintiff has challenged the order of his removal from service as being violative of the provisions of Article 311 of the Constitution, of India and of the statutory rules regulating the conditions of his service. The prayer made in the suit, which was instituted on 10th of March, 1972, is that "a declaration to. the effect that the Plaintiff shall be deemed to be still in service as Skilled Fitter in Railway Workshop, Jagadhri, as order of his removal, dated 24th February, 1969 passed by the Works Manager, Jagadhri Workshop, and his rejection of appeal by the Appellate Authority, dated 31st July, 1969 are illegal, void, inoperative and are not binding on Plaintiff or any other relief this learned court deems fit be accorded." The sole Defendant in the suit is the Union of India on whose behalf the removal of the Plaintiff is sought to be justified. One of the preliminary objections taken in the written statement reads: That the suit is barred by Order 2 Code of Civil Procedure and Specific Relief Act inasmuch as the Plaintiff would have become entitled to arrears of pay also simultaneous with the grant of relief of declaration and injunction and suit for mere declaration without consequential relief is not maintainable. The objection is not happily worded but it is common ground between the parties that it pleads Rule 2 of Order II of the Code of Civil Procedure and Section 34 of the Specific Relief Act, 1963 (hereinafter referred to as the 1963 Act) as a bar to the suit by reason of the failure of the Plaintiff to claim arrears of pay from the date of his removal from service up to the date of the institution of the suit. On the basis of this objection the teamed Subordinate Judge framed the following preliminary issue: Whether the suit is barred by Section 34 of the Specific Relief Act and Order 2, Rule 2, Code of Civil Procedure? Holding that the suit was maintainable in its present from, the learned Subordinate Judge decided the issue in favour of the Plaintiff through the impugned order.
(3.) MR . R.L. Garg, learned Counsel for the Petitioner, has frankly and very rightly conceded before me that no question of the application of Rule 2 of Order II of the Code of Civil Procedure arises in the present case because that rule merely lays down that if a Plaintiff does not seek the entire relief to which he is entitled in respect of a cause of action on which, he sues, he shall not later on sue for the relinquished relief without the leave of the Court. Now, if the relief for arrears of pay flows from the same cause of action which is the basis of the claim for the declaratory relief, the provisions of Rule 2 shall come into operation if and when the Plaintiff subsequently brings a suit for recovery of the said arrears, a relief which he has not now claimed. So long as the Plaintiff does not bring such a second suit the applicability of Rule 2 is not attracted and it cannot, therefore, be said to bar the present suit in any manner.;