Full Judgment Text
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PETITIONER:
RAMESHWARLAL
Vs.
RESPONDENT:
MUNICIPAL COUNCIL, TONK & ORS.
DATE OF JUDGMENT: 27/08/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
MAJMUDAR S.B. (J)
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The petitioner claims that he has been denied the
salary for period from September 10, 1987 to August 18,
1988. He claims to have worked in the office of the
Municipal Council, Tonk. He filed writ petition in the High
Court in February 1990. The learned single Judge held that
since it is a claim recoverable in a civil action, the
discretionary power under Article 226 of the Constitution is
not exercisable. Accordingly, he dismissed the writ
petition. The same came to be confirmed in the impugned
order of the Division Bench made on May 6, 1996 in Special
Appeal No.218/96. Thus, this special leave petition.
It is not necessary for us to go into the question of
the legality of the order of the High Court in refusing to
grant the relief. It is axiomatic that the exercise of the
power under Article 226 being discretionary, the learned
single Judge as well as the Division Bench Have not
exercised the same to direct the respondent to pay the
alleged arrears of salary alleged to be due and payable to
the petitioner. Under these circumstances, the only remedy
open to the petitioner is to avail the action in the suit.
Since the limitation has run out to file a civil suit by
now, which was not so on the date of the filing of the writ
petition, the civil Court is required to exclude, under
Section 14 of the Limitation Act, 1963, the entire time
taken by the High Court in disposing of the matter from the
date of the institution of the writ petition.
Normally for application of Section 14, the Court
dealing with the matter in the first instance, which is the
subject of the issue in the later case, must be found to
have lack of jurisdiction or other cause of like nature to
entertain the matter. However, since the High Court
expressly declined to grant relief relegating the petitioner
to a suit in civil Court, the petitioner cannot be left
remedyless. Accordingly, the time taken in prosecuting the
proceedings before the High Court and this Court obviously
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pursued diligently and bona fide, needs to be excluded. The
petitioner is permitted to issue notice to the Municipality
within four weeks from today. After expiry thereof, he could
fine suit within two months thereafter. The trial Court
would consider and dispose of the matter in accordance with
law on merits.
The special leave petition is disposed of accordingly.