# State Of U.P. & Anr v. Jhinkan Chaudhary & Anr

- **Citation:** (2016) 5 ILRA 1173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-20
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-jhinkan-chaudhary-anr-43754
- **Pages:** 7

## Headnote

Limitation Act, 1963 - Sections 3 and 9 - Suit for declaration regarding status as Assistant Teacher and
for salary dues - Cause of action pleaded as arising on 1-7-1977 due to stoppage of salary - Suit instituted
on 11-8-1983 - Period of limitation held to be 3 years - Held, once the cause of action first arose on 1-71977, time began to run and, by virtue of Section 9, could not be stopped thereafter - Amendment of plaint
incorporating an additional date i.e. 30-7-1982 did not extend or revive limitation - No recurring or
continuing cause of action made out - Suit barred by time.
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
Limitation Act, 1963 - Section 22 - Held, wholly inapplicable - Provision deals with substitution or
addition of parties - Does not create or extend limitation on basis of recurring cause of action - First
appellate court erred in applying Section 22 to treat the cause of action as continuing.

Civil Procedure - Appeals - Second Appeal - Substantial question of law whether suit barred
by limitation - Answered in affirmative - Finding of trial court restored - First appellate court reversed for
non-consideration of statutory provisions and misapplication of Section 22.
Service Law - Aided Educational Institution - Appointment of Assistant Teacher - Mandatory requirement
of approval by District Inspector of Schools - Plaintiff failed to prove legal appointment - Appointment letter
held unproved - No lien or extension shown - No legal basis for salary claim - Salary from public
exchequer cannot be disbursed without legal sanction.

Public Policy - Limitation - Principle of finality - Rules of limitation intended to prevent stale claims and
discourage dilatory tactics - Hardship to State exchequer relevant where public funds are involved - In
absence of cogent grounds for condonation, stale claims cannot be revived.

In Result -Suit held time-barred - Judgment of first appellate court set aside - Judgment of trial court
restored - First appeal dismissed - Interim order vacated.

Second Appeal allowed.

List of Cases cited:

Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510.
K.M. Sharma v. Income Tax Officer, (2002) 4 SCC 339.

## Text

5 All. State Of U.P. & Anr. Vs Jhinkan Chaudhary & Anr.

1173
17. For the reasons discussed above, it is found that plaintiff-respondent had totally proved
his case and readiness and willingness to perform his part of contract and also that if said contract
is not specifically performed, then he would be subjected to serious prejudices, because he had
been waiting for long time after paying more than 93% sale consideration, and had been subjected
to long litigation without any sufficient reason. It is also proved that both the lower courts had
properly appreciated the point as to how the discretion under Section 20 of Specific Relief Act
should be exercised.

18. On examination of the reasoning recorded by the trial court, which are affirmed by the
first appellate court in first appeal, I am of the view that the judgments of the trial court as well as
the first appellate court are well reasoned, and based upon proper appreciation of the entire
evidences on record. No question of law, much less a substantial question of law, was involved in
the case before this Court. No perversity or infirmity is found in the concurrent findings of facts
recorded by the trial court that has been affirmed by the first appellate court to warrant interference
in this appeal. None of the contentions of the learned counsel for the appellant- plaintiffs can be
sustained.

19. In view of the above, this appeal is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 145 Of 2011

State Of U.P. & Anr. ...Appellants
Versus
Jhinkan Chaudhary & Anr. ...Respondents

Counsel for the Appellants:
S.C. Srivastava, S.C.

Counsel for the Respondents:
Vinod Kumar Dwivedi

Limitation Act, 1963 - Sections 3 and 9 - Suit for declaration regarding status as Assistant Teacher and
for salary dues - Cause of action pleaded as arising on 1-7-1977 due to stoppage of salary - Suit instituted
on 11-8-1983 - Period of limitation held to be 3 years - Held, once the cause of action first arose on 1-71977, time began to run and, by virtue of Section 9, could not be stopped thereafter - Amendment of plaint
incorporating an additional date i.e. 30-7-1982 did not extend or revive limitation - No recurring or
continuing cause of action made out - Suit barred by time.
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
Limitation Act, 1963 - Section 22 - Held, wholly inapplicable - Provision deals with substitution or
addition of parties - Does not create or extend limitation on basis of recurring cause of action - First
appellate court erred in applying Section 22 to treat the cause of action as continuing.

Civil Procedure - Appeals - Second Appeal - Substantial question of law whether suit barred
by limitation - Answered in affirmative - Finding of trial court restored - First appellate court reversed for
non-consideration of statutory provisions and misapplication of Section 22.
Service Law - Aided Educational Institution - Appointment of Assistant Teacher - Mandatory requirement
of approval by District Inspector of Schools - Plaintiff failed to prove legal appointment - Appointment letter
held unproved - No lien or extension shown - No legal basis for salary claim - Salary from public
exchequer cannot be disbursed without legal sanction.

Public Policy - Limitation - Principle of finality - Rules of limitation intended to prevent stale claims and
discourage dilatory tactics - Hardship to State exchequer relevant where public funds are involved - In
absence of cogent grounds for condonation, stale claims cannot be revived.

In Result -Suit held time-barred - Judgment of first appellate court set aside - Judgment of trial court
restored - First appeal dismissed - Interim order vacated.

Second Appeal allowed.

List of Cases cited:

Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510.
K.M. Sharma v. Income Tax Officer, (2002) 4 SCC 339.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. This appeal has been preferred against the judgment dated 17.7.1999 passed by Ist
Additional District Judge, Basti in Civil Appeal no. 17 of 1994 (Jhinkan Choudhary vs. Indira
Gandhi Intermediate College, Kaptanganj & others).

2. In original suit no. 327 of 1983 (Jhinkan Choudhary vs. Indira Gandhi Intermediate
College, Kaptanganj & others.). The plaint case in the brief was that plaintiff was appointed on
08.09.1973 as Assistant Teacher in defendant no.-1 College. He was never terminated from service
but since year 1977, the defendant no.-1 through Manager and Principal had stopped salary of the
plaintiff without sanction of defendant no.-2 District Inspector of Schools. The cause of action for
the suit arose to plaintiff when defendants denied him salary since 1.7.1977, therefore he filed suit
for relief of declaration that he is legally appointed Assistant Teacher of defendant no.-1 School
and is entitled to be paid salary every month till his services are not terminated in accordance with
law. During pendency of suit, plaint was amended for the relief that defendants be directed to pay
the entire salary to plaintiff. This original suit was instituted on 11.8.1983.

3. Defendants had filed written statement in original suit by which they denied plaint case
and further pleaded that plaintiff had never been appointed on 8.9.1973 as teacher and no approval
of such appointment was given by defendant no.-2 District Inspector of School (DIOS). The
5 All. State Of U.P. & Anr. Vs Jhinkan Chaudhary & Anr.

1175
plaintiff has any how obtained any alleged appointment letter which is forged and fictitious
document without any sanction of law. Defendant no.-2 is not responsible for the acts of Manager
of the school or the plaintiff. The list of teachers working in relevant year 1978 is in the office of
defendant no.-2 which was sent by Principal and Manager of the institution on 20.5.1978 and that
list does not find name of plaintiff working as teacher in said school. The plaint case is based on
incorrect facts. No cause of action arose to plaintiff and suit is also barred by limitation on admitted
facts of the plaint, which is liable to be dismissed.

4. After affording opportunity of hearing to the parties, the Court of 4th Additional Munsif,
Basti had dismissed the suit by its judgment dated 8.4.1994, in which finding on suit being time
barred was also given. The trial court had also held that the alleged appointment letter of plaintiff is
not proved and the appointment of plaintiff for year 1973-74 and year 1974-75 was purely
temporary without any lien which was never extended. On these grounds also, suit was dismissed.

5. Against the judgment of trial court, Civil Appeal no. 17 of 1994 (Jhinkan Choudhary vs.
Indira Gandhi Intermediate College, Kaptanganj & others.) was preferred which was heard and
allowed by the judgment dated 17.7.1999 of Ist Additional District Judge, Basti. In this judgment,
the first appellate court had held that there is no evidence that plaintiff was ever terminated or
removed from the service, or he had resigned from his service. First appellate court had also held
that suit is not time barred because it is mentioned in the plaint that cause of action arose on
30.07.1982. With these findings, first appellate court had allowed the appeal for reliefs sought in
plaint.

6. Against the said judgment of lower appellate court, present Second Appeal has been
preferred by defendants no. 1 and 2 of the original suit.

7. This appeal was admitted by this Court on following substantial question of law:

"Whether on the facts and circumstances the suit was barred by limitation?"

9. Learned counsel for the appellant contended that cause of action for the suit arose to
plaintiff on 1.7.1977, the limitation for such suit is only three years, but the suit was instituted on
11.8.1983 that is after more than 6 years of alleged arising of cause of action; but these facts were
not properly appreciated by first appellate court, so original suit should be treated as time barred.

10. Submissions of counsel for the appellant were refuted by learned counsel for the
respondent who contended that first appellate court had properly appreciated the cause of action,
the legal position and the error committed by the trial court, and thereafter passed the impugned
judgment. He contended that the cause of action arose in year 1982 and suit was instituted in year
1983; therefore the suit was not time barred because limitation in this matter is for 3 years.
Therefore the appeal should be dismissed.
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
11. The cause of action for the original suit which was mentioned in paragraph-11 of the
plaint at the time of institution on 11.08.1983, in unamended form is reproduced as under:

"That the cause of action arose on 1.7.77 and on everyday in Kaptanganj, Tappa
Nawai, Tahsil Harryia Distt. Basti when plaintiff was denied his salary and other benifits illegally
under the territorial jurisdiction of this court."

12. Then this paragraph of plaint relating to cause of action was amended in year 1984 (by
order dated 15.10.1984) and words "and on 30.7.82 the date of refusal to pay the salary and other
emoluments of service" were inserted in plaint by way of amendment.

13. Thus after amendment the paragraph-11 of plaint relating to cause of action had
become as under:

"That the cause of action arose on 1.7.77 and on 30.7.82 the date of refusal to
pay the salary and other emoluments of service and on everyday in Kaptanganj, Tappa Nawai,
Tahsil Harryia Distt. Basti when plaintiff was denied his salary and other benifits illegally under
the territorial jurisdiction of this court."

14. The trial court had framed ten issues on basis of pleadings of the parties, in which issue
no.-10 was as to 'whether the suit is time barred; and if so, its effect'.

15. Te trial court had appreciated the facts of the case and then found that it is important to
determine that when cause of action first arose to plaintiff. After this trial court had found that
cause of action first arose to plaintiff on 01.07.1977, but the plaintiff had not filed suit within three
years' of period of limitation, therefore it is barred by limitation. The judgment of trial court, on
this point was based on proper appreciation and discussion of law and case laws, which is found
correct.

16. But the first appellate Court had held that is not convinced with this findings of trial
court, because in plaint the plaintiff has also mentioned the later date of cause of action, which is
30.7.1982, the date of the refusal to pay the salary and other emoluments of service and also when
he was denied his salary and other benefits. The lower appellate Court had found that cause of
action of '30.7.82' has been added later on, but held that in such type of causes the cause of action
should not be restricted on a particular date, but the cause of action becomes recurring having
regard to the provisions of section-22 of the Limitation Act. First appellate Court had held that even
after 1.7.1977 the cause of action still arise on every day and as such it was not default on the part
of the plaintiff but it was default on the part of the defendant to pay the salary to the plaintiff and as
such the case of the plaintiff is covered under section-22 of the Limitation Act and he will get the
benefit of the same and his suit shall be treated within time.

17. The section 22 of the Limitation Act is as under:
5 All. State Of U.P. & Anr. Vs Jhinkan Chaudhary & Anr.

1177
"22. Effect of substituting or adding new plaintiff or de fendant.-Where, after
the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards
him, be deemed to have been instituted when he was so made a par ty.

(2) Nothing in sub-section (1) shall apply to a case where a par ty is added or
substituted owing to an assignment or devolution of any interest during the pendency of a suit or
where a plaintiff is made a defendant or a defendant is made a plaintiff."

18. In the present matter the original suit was instituted by sole plaintiff against two
defendants (the College and the District Inspector of Schools) in year 1977, thereafter the third
defendant (the State of U.P.) was made party in the suit. The cause of action for the suit arose to
plaintiff-respondent was in fact never changed, because the defendant no.-2, the District Inspector
of schools was already representing the defendant no.-3 from the very beginning, had already filed
written-statement with pleading that plaintiff was never appointed as teacher, and his alleged
appointment letter was forged document having no legal sanctity. In plaint it was already
mentioned that cause of action for the suit arose to plaintiff 'when plaintiff was denied his salary
and other benefits' from year 1977. There appears no connection of section-22 of Limitation Act
with the cause of action of this suit. It is explicitly clear that the lower appellate Court had neither
considered the pleading of the plaint nor the findings of the trial Court. The lower appellate Court
had not properly understood the provisions of Limitation Act yet it gave an erroneous and infirm
finding which is totally perverse.

19. The relevant provisions of Limitation Act, 1963 are sections 3 and 9, which are as
under:

"3. Dismissal of suits, etc., instituted, etc., after period of limitation.-Subject to
the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and
application made, after the period of limitation prescribed therefor by the first schedule shall be
dismissed, although limitation has not been set up as a defence.

Explanation.-A suit is instituted, in ordinary cases, when the plaint is presented to
the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is
made; and, in the case of a claim against a company which is being wound up by the Court, when
the claimant first sends in his claim to the official liquidator."

"9. Continuous running of time.-Where once time has begun to run, no
subsequent disability or inability to institute a suit or make an application stop it:

 Provided that, where letters of administration to the estate of a creditor have been
granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be
suspended while the administration continues."
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
20. The admitted case of the plaintiff-respondent in plaint was that the cause of action
arose on o10.7.1977 and on every day when plaintiff was denied his salary and other benefits.
There was no change in that cause of action which arose to plaintiff at the time of institution of the
original suit. The otherwise finding of the lower appellate Court is against the provisions of law and
is baseless.

21. In Popat and Kotech Property v. State Bank of India Staff Association(2005) 7
SCC 510, the Hon'ble Apex Court had held as under:-

"7. The period of limitation is founded on public policy, its aim being to secure the
quiet of the community, to suppress fraud and perjury, to quicken writ diligence and to prevent
oppression. The statute i.e. the Limitation Act is founded on the most salutary principle of general
and public policy and incorporates a principle of great benefit to the community. It has, with great
propriety, been termed a statute of repose, peace and justice. The statute bar discourages litigation
by burying in one common receptacle all the accumulations of past times which are unexplained
and have not from lapse of time become inexplicable. - - -

9.Rules of limitation are not meant to destroy the rights of parties. They are meant
to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of
providing a legal remedy is to repair the damage caused by reason of legal injury. The law of
limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time
is precious and wasted time would never revisit. During the efflux of time, newer causes would
sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a
lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to
unending uncertainty and consequential anarchy. The law of limitation is thus founded on public
policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is general welfare that
a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively
fixed period of time. - - -"

22. In K.M. Sharma v. ITO, (2002) 4 SCC 339 the Hon'ble Apex Court had held as
under:-

"Law of limitation is intended to give certainty and finality to legal proceedings
and to avoid exposure to risk of litigation to a litigant for an indefinite period on future unforeseen
events. Proceedings, which have attained finality under existing law due to bar of limitation cannot
be held to be open for revival unless the amended provision is clearly given retrospective operation
so as to allow upsetting of proceedings, which had already been concluded and attained finality."

23. This legal position is explicitly clear that the principles underlying provisions of
limitation are based on public policy aiming that justice should be furnished to all the parties and
hardship or injustice may be relevant consideration in applying the discretion for condoning the
delay. But such hardships of both the parties should be considered. In condoning the delay in filing
suit beyond period of limitation as provided by the statute, there must be cogent and satisfactory
5 All. Har Narain Vs Lala Hemant Pat Singhania

1179
reasons. Such reasons are lacking in present matter. It is admitted legal position that an Asst. Teacher cannot
get appointment without the approval of district Inspector of schools (defendant no.-2 in present suit), who
had denied any appointment of plaintiff respondent, and is specifically pleaded that his appointment letter is a
forged document. No approval of defendant no.-2 was found by trial Court in this case, and those findings
were not specifically reversed by the lower appellate Court, and after referring a few letters issued after the
cause of action, the first appellate court had erroneously held that cause of action arose as mentioned in
amended form of paragraph-11 of the plaint as above.

24. There is period prescribed for initiation of every legal proceedings in Limitation Act, and such
period may be extended in accordance with mandatory provisions of the Act. The principles underlying the
provisions the Act, which are based on public policy alongwith hardship and injustice to other party should
also be considered. In the present matter, every consideration leads to inference against plaintiff respondent.
In recognized educational institutions the salary is paid by the government from public exchequer, which is
public money earned by taxpayers of the country. The disbursement of such money without appropriate
reason cannot be justified. This is the hardship to appellant State, who is custodian of this money. Illegal
disbursement of such money, against the provisions of law, is hardship to the appellant State and the public,
which cannot be permitted.

26. The limitation for original suit was three years from the date of cause of action arose.
Admittedly, as mentioned in plaint, the cause of action for the first time arose on 01.07.1977. So the
limitation of three years for instituting the suit, ended on 01.07.1980. But it was filed on 11.08.1983. So it is
held that suit was instituted much beyond period of limitation, and there appears no justification. The finding
of trial court in this regard is found correct, which is confirmed.

27. In view of the above, the substantial question of law as above is decided in affirmative, in favour
of appellants and against the plaintiff respondent. Accordingly, this 2nd appeal is allowed, the impugned
judgment dated 17.07.1999 of the first appellate Court is set aside, the judgement of trial Court is confirmed,
and the first appeal is dismissed.

28. Interim order, if any, is hereby vacated.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 1450 Of 2002

Har Narain ...Appellant
Versus
Lala Hemant Pat Singhania ...Respondent