Holding

The appeal is not maintainable because the dismissal gave rise to a new cause of action and the amendment of the plaint at such a late stage is impermissible.

Summary

The appellant, a research officer, was charged with submitting a false bill and later with disobeying an order, leading to his dismissal from service. He filed a suit for declaration and injunction to restrain his dismissal, which was dismissed by the Subordinate Judge on the ground that his remedy lay in damages. Subsequent appeals were dismissed, and during the pendency of the second appeal the appellant sought to amend his plaint to include a relief declaring the dismissal order invalid. The Supreme Court held that once the dismissal order was passed, a new cause of action arose, and the original suit could not be continued on the earlier cause of action. The Court also rejected the amendment application as it was filed for the first time after many years, without showing why it should be allowed or that the claim was within the limitation period. Consequently, the appeal was dismissed as not maintainable.

Issues considered

Whether the appeal is maintainable after the appellant has been dismissed and a new cause of action has arisen.
Whether the plaint can be amended at a late stage to include relief against the order of dismissal.
Whether the order of dismissal was effectively served, thereby creating a new cause of action.
Whether the limitation period bars a suit challenging the dismissal order.

Legislation cited

Societies Registration Act, 1860

Subjects

Civil Procedure Codeamendment of plaintcause of actionlimitation perioddismissal from servicedeclaration suitinjunctionmaintainability of appeal

Judgment

S. KUMAR
-A
v.
THE INSTITUTE OF CONSTITUTIONAL AND
I
PARLIAMENTARY STUDIES.AND OTHERS

September 29, 1983 B

[Y. V. CHANDRACHUi>, C. J., R. 'S. PATHAK AND
. SABYASACHI MUKHARJI, JJ.] .

Civil Procedure-Proceedings co1nmenced-Change in cause of action-
Whether prOceedings can be maintained on the ~riginal cause of action. C
Civil Procedure-Amendment ofplalnt-When to b~ done.

The appellant who was found guilty of a charge in an enquiry was
served with a notice to show cause why he ~hould not be dismissed from
service. A second charge was also framed against the appellant. The
appellant filed a suit for declaration and an injunction and obtained an!exparte D
order restraining the respondent and its officers from dismissing him. The
Subordio3;te Judge dismissed the sUit is not maintainable. The appellant filed
an appeal before the Senior Subordinate Judge. In reply to the stay appli-
cation it was stated that the stay application had become infructuous as the
appellant had been dismlssed fro~ 'service. The Senior Subordinate Judge
dismissed the appeal. The appellant -filed a second appeal in the High Coi.Irt
and during the pendency n1oved an application. for amendment of the·plaint.
E
The High Court rejected the amendment application and dismissed the appeal.
Jn this appeal the appellant urged that among' the reliefs claimed in his amend~
ment application filed in the High Court he had included the relief for
declaring the order o_f dismissal invalid. The appellant filed an applicatiOn
praying for amendment of the plaint by the inclusion of such a•relief.
F
Dismsssing the appeal,

HELD: The appeal is not maintainable.

Once an order of dismissal was passed against him, a different cause of.
action arose and it was not possiblC for the app~llant (o .maintain the pro- G
ceedings on the original cause of action. The original reliefs claimed in "the
suit consisted. of a decree of declaration that the proceedings taken against
the appellant upto the framing of the second charge on October 15/16, 1975
were invalid, and a decree for perpc!tual injunction restraining the respondents
from dismissing the appellant. At no stage upto the dismissal of his second
appeal did the appellant attempt to include a relief in his. plaint against the H
order of dismissal. On the contrary, the reliefs sought to be included through
the amendment application filed -in the High Court proceeded en the
l assumption that the appellant was stiJl continuing in service. (156 E-F; B-C}
\ '
SUPREME COURT REPoRTS it9a4! i s.c.a.
The Court is constrained to reject the applicatio~ praying for )eave to
A amend the plaint inasmuch as it is for the first time throughout this protracted,
proceeding commencing with the institution of the suit in 1975 that the -
appellant is now seeking to include thC relief aithough he had come to know
several years ago that he had been dismissed. No circumstance has been
shown explaining why the appellant should be permitted at this late stage to
amend the plaint. It has also not been established by the appellant that if a
suit is a filed now against the order of disinissal it would be within the period
B of limitation. [156; H 157 A:BJ

c Appeal by Special leave from the Judgme,nt and Order dated
the 18th April, 1980 of the Delhi High Court in Regular Second
Appeal No. 33 of 1977.
'
Petitioner in Person.

D Anand Prakash, C.S. Vaidyan,athan, Probir Chowdhry Ms. Laxmt ..
Anand and Samir Prakash for the Respondent.

The Judgment of the Court was delivered by
'
E PATHAK, J. · This appeal by special leave is directed against
a judgment of the High Court of Delhi dismissing the appellant's
second appeal.

The appellant was appointed in 1968 to the -post of Research
Officer of the Institute of Constitutional and Parliamentary Studies,
F New Delhi, as a society registered under the Societies Registration
· Act, 1860, and was later designated as Assistant Director. Sub·
sequently, he was given additional charge of the Library of the
Institute. In March, 1_974 the appellant submitted a bill of Rs. ·350
to the Institute claiming reimbursement of medical expenses incurred
G by him in the delivery of a child to his wife during the previous
mont]j. The Institute, however, framed a .charge on November 5,
1974 against the petitioner; alleging that-he was attempting to draw
the sum by tendering a false bill.. A member of the Executive
Council of the Institute was appointed to euquire into the charge
H and the appellant participated in the enquiry proceedings. During
the pendency of the proceedings the appellant appealed to the Execu·
tive Council of the Institute to change the Enquiry Officer but, it is
alleged by the appella~t, while the appeal was pending consideration
§. kuMAR v. 1.c.P.s. (Pathak, J.)

the appellant received a Memorandum dated July 17/18, 1975 from
the Executive Chairman of the Institute placing the appellant under A
suspension. The Enquiry Officer completed his report on August
9, 1975 holding that the charge of presenting a false bill was proved·
against the appellant. On October· 15/16, ·1975 a second charge
was framed against the appellant alleging that he was guilty of
disobeying an Officer Order requiring him to hand over charge of
the Library. The appellant was also served with a notice of the n
same date, along with a copy of the enquiry report, requiring him,
to show cause why he should not be dismissed from service. The
appellant then fieled a suit for . declaration and injunction in the
Court of the learned Subordinate Judge, Delhi on November 15, 1975
and obtained· an ex-parte order restraining the Institute and its
Officers from dismissing him. When the matter came on for final
c
disposal on August 24, 1976 the learned Subordinate Judge dismissed ·
the suit without trial on the ·preliminary point that it was not
maintainable. He expressed the 'view that the appellant's rem~dy
lay in damages and not in a suit for· declaration. The appellant
appealed, and during the pendency of the appeal .the learned Senior D,
Subordinate Judge passed an order dated August 28, .1976 declining
to grant an-ex-parte stay order. On September 3, 1976 the ,Institute
filed a reply stating that the stay application had become infrnctuous
, as the a p,Pellant had been dismissed from service. The appeal filed
by the appellant was dismissed by the learned Senior Subordinate
Judge on January 22, 1977, who endorsed the view of the trial court
E
that the remedy of the appellant lay in damages instead of by a suit
for declaration. The appellant filed a second appeal in the High
Court of Delhi. During the pendency of the appeal he moved an
application for amendment of the plaint. On April 18, 1980 the
High Court rejected the amendment application and also dismissed F
the second appeal. And now this appeal. '

The appellant attempted to place his case before us on its
merits, but strong objection was taken by the respondents to the
' maintainability of the appeal on the ground that the order dismissing
·the appellant had not been challenged by him, that the order had G
becomefinal and that the continued existence of the order consti•
tuted an impediment to the consideration of the reliefs claimed in
the snit. The appellant strenuously urged that the appeal continues

r to survive, '!nd he attempted to establish that among the reliefs
claimed in his amendment application filed in the High Court he had
included a relief for declaring the order of dismissal invalid and, he
said, the amendment had been wrongly refused. Shortly before
H

\
i56 roi>REMB couil.t l\EroR'l'S · 11984) i s.c.il:.
concluding his submissions in this Court, he filed an application in
A this appeal praying for amendment of the plaint by _the inclusion of
. such relief.

We have examined the record of the case ati.d we find that at
no stage upto the dismissal of his 'second appeal did the. appellant
attempt to. include a relief in his plaint against the order of dismiss~).
B
On the contrary, . the reliefs sought to be included throµgh the
amendment application filed in the High Court proceeded on · the
assumption that the appellant was still continuing in service, for
we find that one of the reliefs specifically mentioned in the amend-
ment application was: '
c
"(c) "A decree for perpetual injuction he granted
to the plaintiff against the defendants, restraining the
defendants from dismissing tl]e plaintiff from the post of
Assistant Director and Incharge of .the Library of the
Institute and taking any action on the basis of the
D enquiry report . or show-cause notice and holding any
second enquiry on the basis of the second charge-sheet
or taking any action whatsoever in these matters.."

Plainly, once an order of dismissal was passed against him, a
different cause of action arose and it was not possible for the
E appellant to maintain the proceeding on the origiaal cause of action.
The original reliefs claimed in the suit consisted of a decree of
declaration that the proceedings taken against the appellant upto the
framing of the second charge on October 15/16, 1975 were invalid,
and a decree for perpetual injunction . restraining the. respondents
from dismissing the appellant. ·
The appellant contended that the order of dismissal had not
been serve.d on him and, therefore, no occasion )lad arisen for
challenging the order. It was alleged that an unsigned copy of an
·-~
order of dismissal had been received by him and nothing .more. We
G cannot accept the contention, because we find ample evidence oil
the record indicating that the appellant treated the order served on
him a·s an effective order and·that otherwise also he was aware that
he had been dismissed. Indeed, he took proceedings in court
charging the respondents with contempt of couri for passing an
H order of dismissal while his suit was still pending.
As regards the application now filed before us ·praying for
·leave to amend the plaint, we are constrained to reject it inasmuch
s.. KUMAR v. J.C.P.!. (Pathak, J.) 157

as it is for the first time throughout this protracted proceeding
commencing ·with the institution of the suit in 1975 that the A
appellant is now seeking to include the relief although he had come
to know several years ago that he had been dismissed. No circum·
stance has been shown 'explaining why the appellant should be.
permitted .at this late stage to amend the plaint. It has also. not been
established by the appellant that if a suit is filed now against the B
order of dismissal it would be within the period of limitation.

Upon the aforesacid considerations, we are of opinion that the
present appeal is liable to be dismissed as not maintainable.

We find it unnecessary to enter into the question whether the
c
charge framed against the appellant, on the basis of which he has
been dismissed, stands proved. We express no opinion in the
matter.

While concluding, we may record that the appeliant claims . D
arrears of pay from the Institute. We believe it would be just and
proper that the Institute should examine the claim of the appellant,
and if it finds that any-amount js due to the appellant it should
make payment thereof with all reasonable expedition. It is hoped
thllt in this regard the Institute will not seek the advantage 6f- any
technical objection, including .the period of limitation. E

In !he result, the. appeal is dismissed as not maintainable.·
There is no order as to costs.

H.S.K. Appeal dismissed. F