JUDGMENT
G.C. Garg, J.
1. Plaintiff-respondent Dr. Prem Singh Mann filed a suit for mandatory injunction seeking a direction to the State of Haryana to make payment to him of his advance increments, the provident fund contribution and the bonus along with interest till the amount is paid.
2. Plaintiff joined as Medical Officer on 1.1.1975 and he worked till 16.12.1980 when he resigned. During the period of his service, he acquired the qualification of Post-graduation diploma in Child Health and also did his M.D. in Pediatrics. Case of the plaintiff is that on account of his having acquired a post-graduation diploma in Child Health and M.D. he was entitled to increments as notified by the State Government which the Slate Government failed to grant him even till his resigning the job. According to the plaintiff, he was also entitled to provident fund contribution along with interest, which he had contributed during the period of his service and also to bonus with interest. The suit was filed on 29.8.1988.
3. The suit was resisted by pleading that benefit of two advance increments w.e.f. 24.5.1979 for plaintiffs having acquired M.D. qualification was sanctioned in his favour vide government letter dated 17.3.1989 and that the payment of provident fund had been made to him on 27.3.1987 and the payment of advance increments would be made to the plaintiff in due course. It was further the case of the State that the amount of provident fund was Rs. 6203/- which had been paid and the amount of increments in respect of having acquired M.D. qualification from 24.5.1979 till resignation comes to Rs. 1741.50 which would be paid. The defendant also raised a preliminary objection to the effect that the claim made in the suit was barred by time and the suit is bad for non-joinder of necessary parties.
4. Trial court decreed the suit after holding that there was nothing on record to suggest that the suit was barred by time, and that the plaintiff was entitled to advance increments and the amount of provident fund and bonus with interest at the rate of 12% per annum.
5. Appeal filed by the State of Haryana was partly allowed and the suit of the plaintiff was decreed for mandatory injunction directing the defendant to pay arrears of two increments w.e.f. May 1979 along with interest at the rate of Rs. 12% per annum upto the date of payment. The defendant was also directed to make payment of arrears of provident fund along with interest @ 12 % starting after the expiry of six months from the date of his resigning the job till payment. The defendant was, however, held entitled to deduct the amount already paid to the plaintiff in this behalf. It is against this decree of the courts below that the defendant has filed this appeal.
6. Learned counsel for the appellant submitted that the plaintiff resigned his job w.e.f. 16.12.1980 and the suit claiming certain benefits that accrued to him during the period of his service was filed on 29.8.1988 i.e. after a lapse of about eight years and therefore, the claim made in the suit was clearly barred by time and the courts below erred in coming to the conclusion that there was nothing on the record to show that the suit was barred by time. According to learned counsel for the appellant, right to claim arrears of increments, if any and the provident fund and bonus, accrued to the plaintiff on the date he resigned his job and he could file the suit within a period of three years from that date in view of the provisions of Article 113 of the Limitation Act as held by the Supreme Court in State of Punjab and others v. Gurdev Singh and Ashok Kumar, A.I.R. 1992 S.C. 111.
7. Learned counsel for the appellant also submitted that suit for mandatory injunction was not maintainable and the plaintiff ought to have filed a suit for recovery of a specific amount, on account of arrears of increments, provident fund and bonus along with interest, if any, due as on the date of filing of the suit.
8. Learned counsel for the plaintiff-respondent however, submitted that it was the duty of the State Government to pay the amount due on account of increments and the provident fund immediately after the plaintiff had resigned his job and he had been requesting from time to time for the payment thereof and that withholding of the amount gave the plaintiff a cause to file a suit for mandatory injunction directing the State Government to pay the amounts due with interest. Thus in the circumstances it has rightly been held by the courts below that the suit is within limitation. As regards the question that a suit for mandatory injunction is not maintainable, learned counsel for the respondent submitted that no such plea had been raised in the written statement and the State Government should not be allowed to raise such a plea against its own subjects.
9. On a consideration of the matter, I am of the opinion that the contentions raised by learned counsel for the appellant have merit. The plaintiff resigned his job w.e.f. 16.12.1980 and he filed the suit on 29.8.1988. By filing this suit, he claimed arrears of increment that had become due to him in the year 1978 when he acquired the qualification of M.D. Thus the right to claim arrears of increments from the due date and also the amount of provident fund and bonus if any, accrued to the plaintiff at the latest on his resigning the job. A suit for recovery of money can be filed within a period of three years from the date the cause of action accrues in favour of the plaintiff. Thus the suit filed in the year 1988 on the face of it is clearly barred by limitation. Nothing could be brought to my notice by learned counsel for the respondent to show that the suit is within limitation and even no facts were shown to have been pleaded in the plaint by the plaintiff to bring his suit within limitation. As already observed, cause of action to claim these amounts accrued to the plaintiff in December 1980 and the suit claiming these amounts could be filed within a period of three years thereof. Nothing could be shown by reference to the facts pleaded or evidence led that the defendant State acknowledged its liability within the period of limitation or the right to sue accrued within 3 years. Section 3 of the Limitation Act clearly provides that Subject to the provisions of Sections 4 to 24, every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as a defence. Law of limitation bars the remedy to claim the amount due and not the right to receive the amount if paid by the other side. Though in the facts and circumstances of this case then suit is clearly barred by limitation, yet the amounts of arrears of increment and provident fund having been paid, the claim of the plaintiff stands satisfied and nothing more is required to be done except to the extent that the relief of interest as granted by the courts below in favour of the plaintiff be set aside, the suit having been filed beyond the period of limitation. In other words, nothing is required to be said regarding the amounts paid by the State Government in respect of the claim of the plaintiff.
10. Section 39 of the Specific Relief Act, 1963 provides that when to prevent the breach of an obligation it is necessary to compel the performance of certain acts which the court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of and also to compel the performance of the requisite acts. In the present case, nothing has been brought to my notice that could be considered necessary to compel the performance of certain acts by the State Government in order to claim the relief of mandatory injunction. On the other hand, Section 41(h) of the Specific Relief Act provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. In the present case, as already noticed, an equally efficacious remedy was available with the plaintiff of claiming the relief of recovering the amount by filing a suit for recovery of money. Once that is so, in view of the bar contained in Section 41(h) of the Specific Relief Act a suit for mandatory injunction is not maintainable seeking a direction to the State Government to pay the amounts due to the plaintiff. Section 39 of the Specific Relief Act does not envisage a situation where the State Government can be compelled to pay to its employees the arrears of pay or other benefits, which can be calculated in terms of money, by filing a suit for mandatory injunction. As already observed, mandatory injunctions are granted by the Court in order to prevent the breach of an obligation. In the present case the plaintiff clearly had a money claim against the State Government and in such a situation, a suit for mandatory injunction, in my view, was not maintainable especially having regard to the provisions of Section
41(h) of the Specific Relief Acts. A duty is cast on plaintiff to show and satisfy the Court that the suit as brought by him is properly constituted and maintainable in law. Plaintiff has to succeed on the strength of his own case and not on the weakness of the defence. Non raising of such an objection in the written statement cannot clothe the plaintiff with a better right than he had. Support for the above view is available from the
judgment of this Court in S.K. Dhadwal v. Prem Singh and Anr. 1989 PLJ 70.
11. A legal plea which goes to the root of the case and for which no new facts are needed to be brought on record can always be allowed to be raised even in the second appeal. The point raised by the State Government about the maintainability of the suit is a pure question of law and thus the contention of learned counsel for the respondent that it ought not be allowed to be raised for the first time in second appeal, has no merit.
12. For the view taken above, it is held that a suit for mandatory injunction for claiming monetary relief was not maintainable and it was even otherwise barred by limitation. Suit of the plaintiff is consequently dismissed. Appeal stands allowed and judgment and decree of the courts below is set aside accordingly, but with no order as to costs.
13. However, before parting with the order, having regard to the fact that the State Government, in its written statement admitted that the plaintiff was entitled to arrears of increments and that the amount of Provident fund had since been disbursed to him and further having regard to the plaintiffs right to receive the amounts except through a decree being available to him, it is ordered that the amounts paid by the State Government to the plaintiff on the aforesaid two counts shall not be recovered back from him. The State shall, however, be entitled to recover by way of restitution been paid to the plaintiff the amount that might have on account of interest, on the amounts due under the decree passed by the court.