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IN THE HIGH COURT OF DELHI
C. Hari Shankar, J.
M-Power Energy India (P.) Ltd. - Appellant
Versus
Sumana Mazumdar - Respondent
CM(M) 866 of 2022, CM 37262 of 2022 (stay) & CM 37263 of 2022 (exemption)
Decided On : 07-10-2022
The right to sue survives if the claim is founded partly on contract, allowing a legal representative to continue an employment dispute upon the original plaintiff's death.
Headnote:(A) Constitution of India - Article 227 - Code of Civil Procedure, 1908 - Order XXII Rule 1 and 3(1) - Employment termination - A legal representative may be substituted in place of a deceased plaintiff if the right to sue survives. The court upheld the impleadment of the plaintiff's sister because the original claim was based partly on contract, allowing the suit to continue following the principles in M. Veerappa. (Paras 10, 11, 25, 27)
(B) The court clarified that claims based on both tort and contract may allow for survival of the right to sue. (Paras 20, 28)
Facts of the case:
The original plaintiff filed suit challenging wrongful termination of employment and seeking damages. Upon her death, her sister sought to continue the case. The trial court allowed the substitution, which was contested by the defendants.
Findings of Court:
The right to sue survived based on the nature of the claims being partly on contract. The learned ADJ's order was upheld.
Issues: Whether the right to sue survives after the death of one party; whether the suit was founded solely on tort or partly on contract.
Ratio Decidendi: The court determined that the nature of the claim was not solely tort but partly based on contract, indicating that legal representatives can pursue such claims.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. claim initiated against termination of service. (Para 1 , 2 , 3 , 4) |
| 2. legal heir entitled to continue suit. (Para 5 , 6 , 8) |
| 3. cpc provisions on substitution of parties. (Para 7 , 9 , 10) |
| 4. distinction between tort and contract in claims. (Para 20 , 21 , 22) |
| 5. right to sue survives partly on tort, partly on contract. (Para 25 , 26 , 28) |
| 6. petition dismissed, no merit found. (Para 36 , 37 , 38) |
JUDGMENT (Oral)
1. This petition under Article 227 of the Constitution of India emanates from CS 10886/2016, instituted by the original plaintiff Sumana Mazumdar (since deceased and sought to be represented by her sister and sole surviving legal heir Sadhana Mazumdar) against the petitioners and other defendants.
2. Given the nature of the controversy in this petition, it is necessary to distil, in brief, the claim of Sumana Mazumdar in the suit instituted by her.
3. Sumana Mazumdar joined the services of Petitioner 1 on 26th November 2002 as Senior Manager, Business Development. She was promoted as Assistant General Manager, Business Development on 1st April 2006 and, further, as Head, Business Development on 1st April 2008. She continued, except for a brief stint when she was transferred to another office, in the service of Petitioner 1 till 8th July 2014, when her services were terminated. CS 10886/2016, instituted by Sumana Mazumdar, assails the said termination on various grounds and seeks (i) a declaration that the termination of her services on 8th July 2014 was illegal, wrongful, mala fide and arbitrary and (ii) damages to the tune of Rs.1.5 crores alongwith interest @ 18% per annum, along with costs.
4. Sumana Mazumdar expired during the pendency of the aforesaid suit instituted by her. Her sister Sadhana Mazumdar moved an application under Order XXII Rule 3(1) of the Code of Civil Procedure, 1908 (CPC), seeking to be impleaded as plaintiff in place of Sumana Mazumdar.
5. The impugned order dated 24th May 2022 has come to be passed on the said application. The learned Additional District Judge ("the learned ADJ") has allowed the application. Aggrieved, the petitioners, as Defendants 1 and 6 in CS 10886/2016, have approached this Court, invoking the writ jurisdiction vested in it by Article 227 of the Constitution of India.
6. Sadhana Mazumdar, who is Respondent 1 in the present petition, contended that she was the sole surviving legal heir of Sumana Mazumdar, the original plaintiff and was, therefore, entitled to continue the suit and being impleaded in her place. That Sadhana Mazumdar is, in fact, the sole surviving legal heir of Sumana Mazumdar, has not been disputed.
7. Rules (1) and 3(1) of Order XXII of the CPC read thus:
"ORDER XXII
DEATH, MARRIAGE AND INSOLVENCY OF PARTIES
1. No abatement by party's death if right to sue survives.-The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
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3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.--
(1) Where one of 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..
8. The learned ADJ held that, as the right to sue survived in favour of Sadhana Mazumdar, she was entitled to continue the suit initially instituted by her sister Sumana Mazumdar, by being substituted as plaintiff in her place.
9. The application under Order XXII Rule 3(1) of the CPC was seriously contested by the petitioners before the learned ADJ and is contested, equally seriously, before this Court.
10. The petitioners seek to contend that, as the claim of Sumana Mazumdar in the suit was founded on tort, the right to sue the suit did not survive, and perished with her death. For this purpose,
