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Judgment
Paresh Upadhyay, J
This Appeal is filed by the original defendant - State Authorities and is directed by the concurrent findings of both the Courts below. The respondent plaintiff challenged the action of the defendant State Authorities of terminating his service w.e.f. 30. 07.1985 by filing Regular Civil Suit No. 953 of 1988, which came to be renumbered as Special Civil Suit No. 223 of 1991. The said suit was decreed by the 3rd Joint Civil Judge (S.D.), Rajkot vide judgment and decree dated 07.08.1991, which is confirmed by the judgment and decree dated 09.01.2017 passed by the Additional District Judge, Rajkot in Regular Civil Appeal No. 122 of 2015.
Mr. Swapneshwar Goutam, learned Assistant Government Pleader for the appellant authorities has submitted that the suit was barred by limitation. It is vehemently submitted that this contention was taken before both the Courts below and even issue to the effect was framed however, while answering the said issue/point for determination both the Courts fell in error. It is submitted that the same being substantial question of law, it be considered by this Court. Reliance is placed on the decision of the Supreme Court of India in the case of State of Punjab and others Vs. Gurdev Singh and Ashok Kumar reported in (1991) 4 SCC 1.
3 . On the other hand, Mr. Vaibhav Vyas, learned advocate for the respondent - original plaintiff has submitted that none of the Courts below has committed any error and no interference be made by this Court. It is submitted that no question of law arises for consideration of this Court. It is also pointed out that, after the judgment of the Appellate Court below, and even after notice was issued by this Court on the application for condonation of delay in filing this Second Appeal, the original plaintiff died and the legal heirs have come on record. It is submitted that this factual aspect be also considered by this Court. It is submitted that this Appeal be dismissed.
4 . Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.
4.1. The only point raised before this Court, as a substantial question of law is that the suit was barred by limitation and therefore no relief could have been granted to the plaintiff. It is noted that, the trial Court had framed specific issue (being issue No. 4B) in that regard. After considering the rival contentions and keeping in view the facts of the case, the Trial Court recorded its finding to the effect that the suit can not be said to be barred by limitation.
4.2. Specific contention was raised by the State Authorities in the Appeal before the District Court and the District Court had also, specifically framed the first point for determination, in that regard. It reads as under.
1] Whether the suit filed by the respondent - original plaintiff was barred by limitation?
4.3. The Appellate Court below, after taking note of the provisions of the law of Limitation and considering the decision of the Supreme Court of India, recorded its finding as under.
Thus, considering the aforesaid decisions of the Hon'ble Apex Court, the period of notice i.e. two months is not to be counted concurrently with the period of limitation for filing the suit if the notice under Sec. 80 is given within the period of limitation. In the case on hand, notice under Sec. 80 was issued upon the defendants by the plaintiff through his advocate on 22/06/1988 i.e. before expiry of limitation period. Thus, in the present case notice under Sec. 80 C.P.C. has been given within the period of limitation. Therefore, in the present case notice period of two months can not be counted concurrently with the limitation period for filing the suit. The limitation period for filing the suit got expired in the present case, on 29/07/1988 and if the period of notice i.e. two months is counted after expiry of limitation period, the limitation for filing the suit got expired on 28/09/1988. The suit has been filed on 13/09/1988. Thus, the suit was filed within the limitation period. Therefore, the contention raised on behalf of Learned G.P. Mr. Vora to the effect that suit was barred by law of limitation is not countenanced. Therefore, considering the aforesaid aspects, I hold that the suit was not barred by law of limitation. Hence, I answer the point No. 1 in negative.
4.4. This Court finds that both the Courts below have considered this aspect in detail and noted findings as noted above. This Court finds that none of the Courts below can be said to have committed any error in this regard.
4.5. So far the decision in the case of State of Punjab and others Vs. Gurdev Singh and Ashok Kumar reported in (1991) 4 SCC 1, as relied by the learned Assistant Government Pleader is concerned, this Court finds that there can not be any dispute with regard to preposition of law contained therein, however that judgment will not have any application in this case, since the exclusion of the notice period from the period of limitation as contemplated under Section 15(2) was not the point at issue before the Supreme Court of India in the said case. As against that the decisions referred to by the District Court specifically dealt with this aspect, which was the point for determination before it and therefore the said decision would not take the case of the Appellant State any further.
Considering the totality - the issues famed, reasons and findings recorded by the Courts below, this Court finds that, no question of law, much less any substantial question of law arises in this case worth being gone into by this Court in exercise of appellate jurisdiction under Section 100 of the Code of Civil Procedure, 1908. The findings of facts recorded by the Courts below do not suffer from any perversity, there is no non-reading or misreading of evidence on record. This Second Appeal therefore needs to be dismissed.
In view of above, the following order is passed.
6.1. This Appeal is dismissed.
6.2. The judgment and decree dated 07.08.1991 passed by the 3rd Joint Civil Judge (S.D.), Rajkot in Regular Civil Suit No. 953 of 1988 (Renumbered as Special Civil Suit No. 223 of 1991), which is confirmed by the judgment and decree dated 09.01.2017 passed by the Additional District Judge, Rajkot in Regular Civil Appeal No. 122 of 2015, stands confirmed.
6.3. It is noted that the plaintiff had, in the prayer clause, inter-alia prayed that his termination from service w.e.f. 30.07.1985 be declared as null and void and the plaintiff be treated to be in service, with all consequential benefits. The Trial Court has decreed the suit in toto, with cost. The decree therefore is to the effect that the plaintiff would be entitled to all consequential benefits. The same is confirmed by the Appellate Court below. Now when the plaintiff has died, it is the widow and other legal heirs who would be entitled to receive those consequential benefits. It is therefore directed that those benefits shall be accordingly calculated and paid to them.
6.4. With a view to see that, challenge if any to this order remains meaningful to the appellant - State authorities, it is directed that the benefits flowing from the decree shall be paid by the appellant State Authorities to the respondents, not later than 30.09.2019.
6.5. Civil Application (for Stay) would not survive and is disposed of accordingly.