Andhra HC (Pre-Telangana)
P.V. Sarma And Ors. vs Chairman, Committee Of Management The ... on 31 March, 1977
Equivalent citations: AIR 1977 ANDHRA PRADESH 319
JUDGMENT Kuppuswami, J.
1. This is an application under O. 22 R. 3 C.P.C. by the petitioners to bring them on record as the legal representatives of the deceased writ petitioner in Writ Petition 1571 of 1976.
2. The deceased writ petitioner was working in the South Central Railway Employees, Co-operative Credit Society Limited, Secunderabad, as its Secretary. Certain charges were framed against him on 30th March, 1973. Pending the investigation and enquiry into those charges he was placed under suspension from 11-1-1973. Ultimately the charges were held to be proved and by an order dated 29-3-1976, he was removed from service. The petitioner thereupon filed the writ petition praying for the issue of a writ of certiorari quashing the order of removal.
3. During the pendency of the writ petition of the petitioner died on 12-11-1976. This petition has been filed by his wife and children praying that they may be brought on record as his legal representatives and allowed to continue the writ petition. In the counter affidavit filed by the Respondent-Society through its Secretary it is contended that the right to sue or to continue the writ petition does not survive to the petitioner's legal representatives and hence the writ petition has to be dismissed as having abate.
4. Under the Rules framed under Art. 226 of the Constitution it is provided that except in so far as express provision is made by the rules, all other rules relating to causes and matters coming before the appellate side of the High Court will apply to the writ petitions in so far as they are not inconsistent with these rules (Vide R. 20 of the Rules framed under Art. 226). Hence the provisions of O. 22 R. 3 C.P.C. would apply to a petition to bring on record the legal representatives of a deceased petitioner. Order 22 R. 3 provides that where one of the two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. It is therefore seen that a legal representative of a deceased plaintiff would be entitled to proceed with the suit only if the right to sue survives on the death of the plaintiff. It is well settled that where the right is purely personal, the right to sue does not survive, actio personalis moritur cum persona. In this case the grievance of the petitioner is that his removal from service is illegal. There can be no doubt that this is a purely personal action and hence the right to sue in such a case does not survive. It is however, argued by Shri Venugopal Reddy, the learned counsel for the petitioner, that if the petitioner succeeds in the writ petition, he will be entitled to be reinstated in service and as a consequence he will be entitled to receive the salary from the date he was placed under suspension until he is reinstated. The writ petition must therefore be deemed to be also in respect of the recovery of salary and other emoluments attached to the office. Such a right would devolve upon the petitioner's heirs if the petitioner dies during the pendency of the writ petition and hence they must be permitted to continue the proceedings even though the relief of reinstatement to the office cannot certainly be granted in favour of the legal representatives.
5. In our view this question is concluded by the decision of a Division Bench, of this Court in T.N. Venkatanathachari v. State of A.P., (1969) 1 Andh WR 1. In that case the writ petitioner challenged an order imposing the punishment of compulsory retirement. When he died during the pendency of the writ petition, his legal representatives sought to come on record to continue the proceedings. It was held that the relief sought by the petitioner was purely personal to him it involved his continuance in service and could not survive to the legal representatives.
6. Shri Venugopal Reddy, the learned Counsel for the petitioner, while admitting that this decision directly applies to the facts of this case tried to persuade us to have a second look at the decision. He brought to our notice the decisions reported in Ibrahim Bhai v. State , , and Manmohan Anand v. State of Punjab, 1972 Serv LR 852 (Punj) which had taken a contrary view and contended that the decision reported in T.N. Venkatanathachari v. State of A.P. , (1969) 1 Andh WR 1 (supra) is not correct.
7.The two former decisions were no doubt not referred to in the decision of this Court referred to above but the learned Judges referred to the decisions reported in U. Vridachalam v. State of Madras, and Jagdish Prasad Mathur v. United Provinces Government, . In U. Vridachalam v. State of Madras, (supra) a Police Head constable, who was dismissed from service, filed a writ of certiorari to quash the order of dismissal. When he died during the pendency of the writ petition, a question arose whether the right survived to his legal representatives. It was held that the relief sought was purely personal to the delinquent officer as it involved the continuance in service or otherwise of the petitioner and did not survive to the legal representatives. It was observed that if the writ petition was proceeded with and was even allowed, the State will be placed in a somewhat anomalous position in not being able to continue the proceedings against the delinquent officer. In Jagdish Prasad Mathur v. United Provinces Government , , a suit was filed by a dismissed Government Official praying for a declaration that his order of dismissal was wrongful and for consequential reliefs such as arrears of pay with damages as well as future pay and interest. The suit was dismissed by the trial Court and the plaintiff preferred an appeal and during the pendency of that appeal he died. The appellant's legal representative was allowed to come on record and to continue the appeal. This case was distinguished in T.N. Venkatanathachari v. State of A.P. (1969) 1 Andh WR 1, on the ground that the subject-matter of the suit was not merely the legality or otherwise of the order of dismissal of the plaintiff but also the money due to him as arrears of pay or otherwise. The learned Judges considered that the distinction was properly made between the two reliefs by the Allahabad High Court. In this writ petition the prayer is only for quashing the order of dismissal. This cannot be equated to a suit for recovery of arrears of salary or for damages on the ground of wrongful dismissal. The possibility that if the writ petition is allowed and the order of dismissal is set aside, a further enquiry would have to be held and in that enquiry it may be found that the charges are not proved and thereupon the petitioner would not only be reinstated into service but will be entitled to the arrears of salary- is too remote and far fetched in our view to regard the writ petition as equivalent to a suit for recovery of salary or damages on the ground of wrongful dismissal.
8. Shri Venugopal Reddy relied upon the decision reported in Ibrahim Bhai v. State, . In that case a writ petition was filed to quash the order of reversion, but the petitioner died during the pendency of the writ petition and his legal representatives were brought on record. The decision in U. Vridachalam v. State of Madras, , was distinguished on the ground that in the said case an order was passed dismissing the delinquent officer from service whereas in the case before them there was only an order of reversion. With great respect we are unable to see any distinction between a case where an order of dismissal is challenged and the order of reversion is challenged so far as the point with which we are concerned viz., whether the right to sue survives or not.
9. In Manmohan Anand v. State of Punjab, 1972 Serv LR 852 (Punj), while observing that there was no material distinction between the Madras case and the Gujarat case in so far as the point for determination before them was concerned, the learned Judges observed that they were unable to agree with the proposition that the relief by way of declaration that the order of dismissal was null and void was personal to the deceased and did not survive to his legal representative. It was conceded in writing before the learned Judges that the legal representatives of the original petitioner would have been entitled from the date of his purported removal till the date of his death. Once this is granted the learned Judges observed that no such claim can be decreed unless it is first held that the purported order of removal of the petitioner was illegal and ineffective. That was the basic relief that was claimed in the petition. To that extent therefore the right to sue survives to his legal representatives. If the original petitioner had claimed declaration that he continues in service or had asked for a mandamus to reinstate him they would have held that the right to claim such relief was personal to the deceased and died with him and that the right to sue in respect of those reliefs did not survive to the legal representatives. But so far as the declaration that the order of removal is illegal is concerned the legal representatives were entitled to the finding that the dismissal of the deceased petitioner was wrongful and would further be entitled to the consequences that could flow from such a finding. The learned Judges relied upon the decision reported in Jagdish Prasad Mathur v. United Provinces Government, . With great respect we are unable to agree with their view. In order to decide whether a particular right of action survives to the legal representatives or not the correct approach in our view is to consider what the right claimed in the proceeding is. If the right is purely a personal one then the fact that there is a possibility of the petitioner obtaining further reliefs in case he succeeds in establishing the right which he claims in the particular proceeding cannot be taken into account in determining whether the right to sue survives or not.
10. A similar question arises where the plaintiff seeks to establish a right to a personal office and also claims a relief by way of recovery of possession of properties attached to that office. It has been held in such cases that the relief of possession of the properties in only ancillary to the claim to the office which is personal in nature and as the right to sue in respect of the office does not survive the suit cannot be continued even in respect of the prayer for possession of the properties. In Ramasarup Das v. Rameshwar Dass, , a suit was filed for a declaration of title and for recovery of possession of the properties as a Shebait. The suit was decreed and defendant preferred an appeal and during the pendency of that appeal the plaintiff died. It was argued that on the date of the death the suit abated. It was observed that the answer to the question would depend upon the nature of the suit. If, the plaintiff's suit is primarily to establish his personal right to an office which would entitle him to possession of the property in question, on his death, either during the pendency of the suit or during the pendency of the appeal, the right to sue would not survive and the suit would therefore abate. The same view was taken in Sham Chand Giri v. Bhayaram Pandey, (1894) ILR 22 Cal 92. Applying the principles in these two decisions one of us (Alladi Kuppuswami, J.), held in Sthirapattadhikari v. A.C. Basavayya, (1970) 1 Andh WR 414, that where a person filed a suit for a declaration that he was the Sthirapattadhikari of a particular Mutt and for recovery of possession of properties of the Mutt, the right to sue did not survive on the death of the plaintiff even in regard to the prayer for possession. It was held that the plaintiff would be entitled to recover possession only if he established his right to the office of Sthirapattadhikari contained in the first relief. The contention that the suit abated only in regard to the prayer for declaration and could be continued with reference to the prayer for recovery of possession was rejected. The claim to the properties was only ancillary to the main relief of declaration as the right to possession of the property would only follow the declaration. If the right to the first relief abated, it cannot be said that the Court would be entitled to give the second relief.
11. We are of the view that on the death of the petitioner the right to sue or to continue the writ petition abated. We are not persuaded to take a view different from that taken in T.N. Venkatanathachari v. State of Andhra Pradesh, (1969) 1 Andh WR 1. We therefore hold that the writ petition has abated has to be dismissed as abated, W.P.M.P. No. 6631/76 is dismissed; No costs.
12. In this view it is unnecessary to consider the further contention raised by the respondent that a writ petition does not lie against a Co-operative Society.
13. Petition dismissed.