BISHWANATH SINGH Vs. ADHOC MANAGING COMMITTEE

JUDGEMENT

(1.) DURING the pendency of the appeal, the appellant who was the plaintiff in the suit has died and application has been filed by the legal heirs of the appellant for their substitution. The question for consideration is whether in the facts and circumstances the right to sue survives to enable the applicants to be substituted. The deceased appellant filed a suit for declaration that he was legally appointed as Principal of Dayanand Vidyalaya Mithapur. Therefore, the order of dismissal dated 31.7.1972 passed by the Adhoc Managing Committee was ultra vires and without jurisdiction. The Additional Subordinate Judge decreed the suit in terms of the relief claimed in the plaint. It is to be noticed the plaintiff had not claimed any consequential relief for compensation or re -instatement. It was merely a declaratory decree. The defendants preferred an appeal before the District Judge. The Additional District Judge by an exhaustive judgment set aside the decree of the Subordinate Judge. The plaintiff preferred this appeal.

(2.) MR . Dinu Kumar, learned counsel appearing on behalf of the proposed heirs of the legal representatives submitted that the applicants are entitled to be substituted as right to sue survives to them. Learned counsel has placed reliance on Indian Oil Corporation & ors. Vs. Md. Sohail & ors. reported in 1993(2) PLJR 666. In this decision, it was held by the learned Judge, if the plaintiff dies after passing of decree in his favour, there is no question for non -survival of right to sue as the cause of action merges in the decree, and the benefits arising out of it passed to the legal representative and they are entitled to be substituted in place of deceased plaintiff.

(3.) IN Girijanandini Devi and ors. vs. Bijendra Narain Choudhary reported in AIR 1967 (S.C.) 1124, Hon'ble Supreme Court held as follows : -