Vijay Kisan Shelar vs State Of Maharashtra And Ors.
2002 Latest Caselaw 556 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard Advocates for the parties. Also perused the record.

2. The applicant challenges the order, dated 20-1-1996, passed in Misc. Application No. 116 of 1993, by the Civil Judge, Senior Division, Pune. By the impugned order, the trial Court has dismissed the application filed or amendment of the decree which was passed in Regular Civil Suit No. 1513 of 1985 and confirmed in Appeal No. 628 of 1989. It was the contention of the applicant that pursuant to the observations in para 25 of the judgment of the trial Court in R.C. Suit No. 1513 of 1985, the applicant ought to have been granted back wages with effect from 20-7-1985 to 25-9-1985 to the tune of Rs. 1,24,540.75 ps., which has been by mistake omitted by the trial Court while passing the operative portion of the judgment and decree and, therefore, the decree needs to be amended. The trial Court as well as the lower Appellate Court after going through the records have rejected the said application by the impugned order. Hence the present revision application.

3. Undisputedly, the suit was filed for a declaration and injunction. The relief sought for in the suit was for the declaration that the order bearing No. Asthapana-1457 dated 19th July, 1985 of the second defendant in the suit directing transfer of the plaintiff to Ahmednagar being illegal and void and not binding on the plaintiff and that the plaintiff was entitled to continue his work as a linen-keeper in the office of the second defendant, and for the order of injunction restraining the defendants from giving effect to the said order. Considering the nature of the dispute in the suit, the trial Court had framed the issues, firstly as to whether the order dated 18-7-1985 of transfer of the plaintiff to Ahmednagar as Linen Keeper was mala fide, capricious and discriminatory, secondly whether the order of transfer was made to victimise the plaintiff, and thirdly whether the suit was not maintainable in the absence of notice under section 80 of C.P.C. or in the absence of getting permission to file the suit without such notice. The first two issues were answered in the affirmative and the third one in the negative. Accordingly, the suit was decreed declaring that the transfer order of the plaintiff from Pune to Ahmednagar passed by the defendant No. 3 bearing No. B-3/Asthapana/18332-34 dated 18th July, 1985 was illegal and void and hence not binding upon the plaintiff, and the defendants were restrained from giving effect to the said transfer order. Further the defendant Nos. 1 to 5 were directed to pay costs to the plaintiff. The appeal filed against the said judgment by the respondents being Civil Appeal No. 628 of 1989 was dismissed. The second appeal against the same being Second Appeal No. 629 of 1991 was also rejected by this Court.

4. The nature of the controversy between the parties was apparently in relation to the order of transfer issued against the applicant on 18-7-1985 and the issue in that regard was answered in favour of the applicant. However, it is pertinent to note that though the applicant had approached the Court with the grievance about the illegality of the order of transfer and had sought the declaration to that effect along with the relief of injunction to restrain the respondents from giving effect to the said order, the applicant had not prayed for any arrears of salary as such or back wages. Undisputedly, no Court fee in that regard was also paid by the applicant in the suit.

5. Much stress is sought to be laid on the following observation by the trial Court in its judgment while decreeing the suit, "That he requested the defendant No. 2 for allotment of any duty. He was idle for two months without any work--- though the plaintiff was on duty for two months, he was not given any kind of work as his duty continued." The claim for amendment of the decree by including the order for payment of back wages is sought to be justified on the basis of the said observation. Undoubtedly, there was neither any issue as regards the back wages involved in the suit nor any specific claim was made by the applicant. Hence, there was no occasion for the trial Court to grant any relief in that regard. A mere observation in the judgment that the applicant was not allotted any work and was kept idle for two months without any work, by itself, would not lead to the conclusion that the trial Court had intended to grant the relief in relation to back wages and that too without any claim by the applicant in that respect and without any issue being adjudicated in relation to the said point. Besides, if the trial Court was inclined to mould the relief in that respect and to grant back wages to the applicant, certainly the trial Court would also have taken into consideration that grant of such a relief to the applicant would render the applicant liable to pay Court fee and, therefore, would have issued specific direction in that regard in the judgment itself. The judgment of the trial Court is totally silent about any such intention on the part of the trial Court. Mere observation regarding keeping the applicant idle for two months without any work being allotted cannot lead to the conclusion that the trial Court had adjudicated the issue regarding payment of back wages to the applicant or that it was intended to be granted and it was accidentally omitted so as to warrant the amendment of the decree in that regard.

6. The trial Court while rejecting the application has clearly observed in the impugned order that neither there was any prayer by the applicant for back wages nor there was a prayer to that effect even in the appeal against the decree. It has also been observed that neither the pleadings nor the evidence on record disclose that the applicant had claimed back wages though the applicant had submitted that he was ready to work for the period for which no work was stated to have been allotted to him.

7. Placing reliance upon the decision of the Madhya Pradesh High Court in the case of Pannalal Tayal v. State of M.P., and that of the Apex Court in the case of Vemareddi Ramaraghava Reddy & others v. Konduru Seshu Reddy & others, , it was sought to be argued that in a suit for a declaration in regard to service matters, there is no need to seek consequential relief and being so, it was not necessary for the applicant to seek specific relief in relation to back wages. Added to this, the trial Court was very much alive to the issue in relation to back wages and that its apparent from the judgment of the trial Court wherein it was observed that the applicant was sought to be transferred to Ahmednagar inspite of the fact that the post at Ahmednagar was exclusively meant for woman and that the applicant was kept idle for two months as he was not given any kind of work. It was further submitted that the application filed by the applicant was not to be considered under section 152 but ought to have been dealt with under section 151 of Code of Civil Procedure, 1908 (for short, "C.P.C.")

8. As regards the contention that in a suit for a declaration in service matters there need not be any consequential relief specifically claimed for by the plaintiff, reliance is sought to be placed on the above referred decision of the Madhya Pradesh High Court and that of the Apex Court. The learned Single Judge of the Madhya Pradesh High Court in Pannalal Tayal's case (supra), while considering the scope of section 34 of the Specific Relief Act and placing reliance upon the decision of the Apex Court in Vemareddi Ramaraghava Reddy's case (supra) observed thus :

"It is, therefore, clear that the power of Court to grant a declaratory decree is not confined to section 34 of the Act. No doubt, where the matter falls within the purview of the said section, declaration can only be made in accordance with the provisions thereof, but declaration claimed is in respect of a matter not falling strictly within the purview of section 42, the Court has power to grant a declaratory decree independently of the requirements of the section."

In the case before the Madhya Pradesh High Court, the plaintiff had not sought any declaration regarding his legal character or status or any right to property. There was no dispute that he was absorbed as an accountant and as such it was not necessary for him to obtain any declaration regarding his position in that capacity. All that was claimed by him was that since he was absorbed as an accountant, he was entitled to a particular scale of pay. The Madhya Pradesh High Court, therefore, held that such a declaration was not falling strictly within the purview of section 34 and as such the proviso to section 34 was not attracted in the said case. Apparently, the decision in relation to the objection sought to be raised by the respondent Government in the said case that the plaintiff was not entitled to seek any relief as he had filed the suit for a bare declaration without claiming any consequential relief, and therefore the said decision was given in the peculiar facts of the said case. The main relief in the matter before the Madhya Pradesh High Court was regarding the scale of pay itself. Being so, once the Court was required to adjudicate regarding the scale of pay and if it was to be found that the plaintiff had been paid with the scale of pay lower than what he was entitled to, nothing could prevent the Court even in terms of Order 7, Rule 7 of C.P.C. to grant relief in that regard irrespective of what is stated in the proviso to section 34 of the Specific Relief Act. However, that is not the case in the matter in hand. It was a case pertaining to the legality in relation to the order of transfer issued to the applicant. There was no grievance made in the pleadings regarding failure on the part of the respondents to pay any wages as such nor any claim in that regard was made in the suit. Being so, the decision of the Madhya Pradesh High Court is of no assistance to the case in hand.

9. The Apex Court in Vemareddi Ramaraghava Reddy's case (supra), while dealing with the scope of section 42 of the Specific Relief Act, 1877, has held that the said section was not exhaustive and the Court could grant declaratory decree independently of the said section. The matter before the Apex Court was pertaining to a suit by the plaintiff for a declaration that the compromise decree was not binding on the deity and the dispute was whether such a suit was maintainable as falling outside the purview of section 42 of the Specific Relief Act, or not. It was ruled by the Apex Court that a declaration of that character i.e. the compromise decree is not binding upon the deity is itself a substantial relief and has immediate coercive effect and it falls outside the purview of section 42 of the Act and would be governed by section 9 or Order 7, Rule 7 of the C.P.C. Apparently, the decision was in relation to a totally different issue, unconnected with the matter in hand.

10. Relying upon the decision of the Apex Court in the case of Parimal Chandra Raha & others v. Life Insurance Corporation of India & others, , it was sought to be contended that the Apex Court therein having approved grant of declaration which was not sought for, similar principle ought to have been adopted by the Court below while considering the application filed by the applicant. The submission is totally devoid of substance. The decision in Parimal Chandra Raha's case has no application to the matter in issue.

11. The application was for amendment of the decree. Such an application has to be dealt with in terms of the provisions contained in section 152 of C.P.C. Perhaps, invocation of powers under section 151 of C.P.C. may arise in rarest of rare case and certainly the present case cannot be said to be one of those cases. Besides, there can be no room for application of the inherent powers when there is an express provision in the Code dealing with the procedure to be followed in relation to the matter brought before the Court. It is well established that the powers under section 151 of C.P.C. can be invoked only when there is no other provision in the Code for exercise of such powers. In any case, it is not permissible to amend the decree by granting a relief which was not granted while disposing of the suit, being not within the scope of the adjudication before the Court and the judgment apparently disclosing absence of intention on the part of the trial Court to grant any such relief. Besides, undisputedly, the respondent had preferred appeal against the said judgment and the same was disposed of after hearing the parties. Certainly nothing prevented the applicant from bringing to the notice of the Appellate Court, the point in relation to back wages, if at all, it was intended to be claimed but was not granted and the lower Appellate Court could have granted necessary relief in terms of Order 41, Rule 33 of C.P.C. while disposing of the appeal filed by the respondents against the decree.

12. In the facts and circumstances, therefore, I do not find any illegality or impropriety on the part of the trial Court in rejecting the application filed by the applicant for amendment of the decree and hence no interference is called for in revisional jurisdiction. The revision application, therefore, fails and is dismissed. Rule is discharged with no order as to costs.