RFA No.832/2010

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA No.832/2010

Date of Reserve : 1^st August, 2011

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Date of decision : 16^th September, 2011

MAYA

..... Appellant

Through : Mr. Gurbaksh Singh and

Ms. Meenakshi Sharma, Advs.

versus

S. SARASWATY AND ANOTHER ..... Respondents

Through : Respondent in person.

CORAM :-

THE HON'BLE MR. JUSTICE J.R. MIDHA

1.

Whether Reporters of Local papers may

be allowed to see the Judgment?

Not

2. To be referred to the Reporter or not?

Necessary

3. Whether the judgment should be

reported in the Digest?

JUDGMENT

J.R. MIDHA, J.

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1. The appellant has challenged the judgment and the

decree of the learned Trial Court whereby her suit for damages

was dismissed by the learned Trial Court as barred by

limitation as well as res judicata.

2. The appellant was appointed as a teacher with the

respondents in August 1994. The services of the appellant

were terminated by respondent No.1 on 4^th September, 1997.

The appellant challenged the termination by filing a suit for

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declaration and consequential relief before the Civil Judge

being Suit No.18 of 1998, which was dismissed on 23^rd

February, 2005 against which the appellant preferred an

appeal, which was also dismissed.

3. The learned Trial Court held the plaintiff’s suit to be

barred by principles of constructive res judicata on the ground

that the appellant could have sought the relief of damages in

the previously instituted suit. The learned Trial Court also held

the suit to be barred by Article 75 of the Schedule to the

Limitation Act, which provides for a limitation of one year for

claiming the damages. The appellant’s application under

Section 14 of the Limitation Act seeking exclusion of the period

during which she was prosecuting the earlier suit was also

rejected by the learned Trial Court.

4. The appellant has challenged the impugned judgment on

the ground that the earlier suit was dismissed with an

observation that the appellant’s remedy was to file a suit for

wrongful dismissal and damages, which implied that the

appellant was given liberty to file fresh suit and, therefore, the

principles of res judicata will not be applicable. It is further

submitted that the appellant is entitled to exclusion of the

period of limitation under Section 14 of the Limitation Act. It is

further submitted that the nature of both the suits are different

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and, therefore, Order II Rule 2 of the Code of Civil Procedure

shall not be applicable. The learned counsel has relied upon

the judgments of N.N. Seth v. Union of India, 1999 (78) DLT

203 and State of Maharahstra v. National Construction

Company, Bombay, (1996) 1 SCC 735.

5. The appellant’s suit is clearly barred by the principles of

constructive res judicata as the appellant could have sought

the relief of damages in the earlier suit. The limitation for filing

the suit for damages is one year under Article 75 of the

Schedule the Limitation Act and the suit having been filed after

the said period, is clearly barred by limitation. No case for

exclusion of the time period under Section 14 is made out. The

judgments cited by the appellant are not applicable to the

present case. There is no infirmity in the finding of the learned

Trial Court.

6. There is no merit or substance in this appeal. The appeal

is accordingly dismissed.

J.R. MIDHA, J

SEPTEMBER 16, 2011

Dev

2011:DHC:4792