Food Corporation Of India vs Harinderpal Singh on 29 April, 2009

R.S.A. No. 1791 of 2009 (O&M)
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     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH


                              R.S.A. No. 1791 of 2009 (O&M)
                              Date of decision: 29.04.2009


Food Corporation of India
                                                                ....appellant


                                 versus


Harinderpal Singh
                                                            ....respondent

CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA

Present: - Mr. Ravi Kant Sharma, Advocate,
           for the appellant.

                    ***

VINOD K. SHARMA, J. (ORAL)

C.M. No. 5235-C of 2009

This is an application under Section 5 of the Limitation Act for

condoning the delay of two days in filing the present appeal.

The plaintiff/appellant prays for condonation of delay of two

days in filing the appeal on the ground that the delay has occurred due to

mis-reading of date of delivery of judgment, to be date of preparation.

For the reasons stated in the application, C.M. is allowed and

the delay of two days in filing the appeal is ordered to be condoned.

R.S.A. No. 1791 of 2009

This regular second appeal is directed against the judgment

and decree dated 7.1.2009 passed by the learned Courts below, vide

which the suit for declaration filed by the plaintiff/respondent to
R.S.A. No. 1791 of 2009 (O&M)
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challenge the order dated 27.1.2005, imposing and effecting recovery of

Rs.40,464/- from the plaintiff to be illegal, null and void, against the law,

being violative of principles of natural justice with a consequential relief

of mandatory injunction, stands decreed.

The facts which are not disputed are that the

plaintiff/respondent was voluntarily retired on 30.9.2004. However,

while releasing the retiral benefits, a sum of Rs.40,464/- was deducted.

Thereafter, in order to justify the deduction, order dated 27.1.2005 was

passed to recover the amount of Rs.40,464/- on the ground that the

plaintiff/respondent had been wrongly granted increments twice, to

which he was not entitled.

The learned Courts below held the order to be illegal, null and

void, for the reason that the order passed, was in violation of principles

of natural justice. The order was passed after retirement of the

plaintiff/respondent without issuing any show cause notice to him, that

too after the deduction was made.

The learned counsel for the appellant contends that the appeal

raises the following substantial question of law: –

“Whether the suit for mandatory injunction without
payment of Court fee was competent?”

In support of the substantial question of law, the learned

counsel for the appellant contends that the suit filed by the

plaintiff/respondent was not competent, as in order to seek mandatory

injunction of determined sum, the plaintiff/respondent was required to

pay ad valorem Court fee, having not paid ad valorem Court fee, the suit

itself was not competent. The learned Courts below, therefore,
R.S.A. No. 1791 of 2009 (O&M)
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committed an error in decreeing the suit.

On consideration, I find no force in the contention raised by

the learned counsel for the appellant, as main relief sought by the

plaintiff/respondent was that of declaration to challenge the order

imposing recovery from the plaintiff/respondent, the relief of mandatory

injunction was consequential relief, therefore, it cannot be said that the

proper Court fee was not affixed.

The substantial question of law is answered against the

appellant.

No merit.

Dismissed.

(Vinod K. Sharma)
Judge
April 29, 2009
R.S.