HINDUSTAN SHIPYARD LIMITED Vs. P SAMUEL

JUDGEMENT

(1.) The defendant is the petitioner. One P. Samuel while working as Senior Engineer in the petitioner-company was sought to be retired on February 1, 1982. Assailing the legality thereof, he filed O.S.No. 139 of 1984 for declaration that his date of b rth is March 14, 1928 and not as was mentioned in the record of service and he also sought for permanent injunction directing the petitioner to continue him in the said post by reinstating and also to pay back-wages. The said suit was decreed on April 4, 1985 granting declaration that his correct date of birth is March 14, 1928 but negatived the other reliefs sought for. In the meanwhile, he retired from service. Assailing the legality thereof, the petitioner filed A.S. 3014 of 1985 which is now pending. The plaintiff Samuel filed another O.S.No. 239 of 1986 for a declaration that he is entitled to the damages of Rs. 1,67,920/- which was accrued to him on account of wrongful termination of his services and a consequential injunction directing the petitioner to pay the same. Pending the suit, he died on November 29, 1987. Thereafter, the respondents filed I.A.No.183 of 1988 to bring them on record as legal representatives to continue the suit. The petitioner resisted the same but the Court below by an order dated April 13, 1988 ordered the petition. Assailing the legality thereof this civil revision petition is filed.

(2.) The learned counsel for the petitioner Sri Kalyan Ram contends that the relief for declaration that the plaintiff is entitled to the damages of the specified amount, is personal in nature. On his death actio personalis moritur cum persona operates and therefore the relief sought for is abated. The cause of action does not survive on the respondents to pursue the proceedings. It is further contended that it is in the nature of a contract of service between the deceased employee, Samuel and the petitioner and on his death by operation of Order XXII Rule 2, it is not available to the respondents to continue the proceedings. It is also argued that the suit is in the nature of damages, personal to the plaintiff, to recompense the loss sufferred by him and on account of his death the suit for damages abates and therefore the respondents herein acquire no right to pursue the remedy as it is only an inchoate right, it is next contended that the relief of payment of the amount is consequential to the first relief and therefore it would not survive. In support thereof, the learned counsel placed reliance on decisions reported in Sthirapattadhikari vs. A.C. Basavayya (1). 1970 (1) An.W.R. 414 and P.V. Sarma vs. S.C.Rly. Employees Co-op. Socy. (2) A.I.R. 1977 A.P. 319. This was resisted by the learned counsel for the respondents to whom notice has been given before admission.

(3.) Therefore, the question for consideration is whether the suit as contended by the learned counsel for the petitioner is abated. Jt is undoubtedly true that Mr. P. Samuel, plaintiff in the suit had prematurely retired from service on the ground that he attained superannuation on the date mentioned by the petitioner-company and that he laid the suit for declaration that his correct date of birth is March 14, 1928. He also sought for permanent injunction directing the petitioner-company to continue him in service by reinstating him with backwages. The Court below declared that the date of birth of the plaintiff is March 14, 1928 and negatived his other reliefs. An appeal is now pending against the relief granted by the Court below at the instance of the petitioner-company in A.S. No. 3014 of 1985. As the Court below granted a relief to the plaintiff, he is entitled to the damages for wrong termination to the extent of Rs. l,67,920/-as claimed in the suit and as the plaintiff died the right to recover the amount, the estate of the deceased shall devolve on his legal representatives Section 306 of the Indian Succession Act speaks thus: