Committee of Management, Rama Devi Balika Inter College Vs. Mohd. Iqbal Khan and ors. - Court Judgment

Excerpt:

.....terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of..........plaintiff has failed to move this formal application it will not amount abating the suit- in the present view of the matter the application (79-c) moved by the petitioner had absolutely no merit and it has rightly been rejected by the courts below.6. as regards formal amendment in the plaint by way of substitution of the deceased plaintiff it is definitely a must. it has to be recorded and for that purpose a formal application which may not amount to be application under order xxii rule 3 c.p.c. has to be moved and this can be done at any stage subsequent to the disposal of the earlier revision which was pending before the district judge. therefore, in case the respondent-plaintiff has not yet moved the trail court for incorporating this formal amendment, he would move it as early as possible.7. with these observations, this writ petition is disposed of.

Judgment:

ORDER

Umeshwar Pandey, J.

1. Heard Sri Ravi Kant, learned Senior Advocate assisted by Sri Vishal Agarwal.

2. This petition under Article 226 of the Constitution of India has been moved challenging the order dated 26-11-2005 passed by the District Judge in Civil Revision No. 674 of 2005 rejecting the revision of the petitioner.

3. In a suit for permanent injunction the plaintiff had died. When a matter in revision arising out of the same suit was pending before the District Judge, the substitution application of the deceased plaintiff was moved before the revisional court, which was allowed and subsequent amendments were incorporated in the memo of revision. Thereafter, the revision was decided and the record was sent to the trial court where the petitioner-defendant moved application (79-C) for abating the suit for not recording substitution in the plaint. The trial court rejected this application on the ground that substitution had already been recorded in the proceedings of revision before the District Judge. It is against that order that the petitioner preferred the aforesaid civil revision in which the impugned order has been passed

4. Sri Ravi Kant, the learned Senior Advocate submits that even though the substitution of the deceased plaintiff was receded in the revisional proceedings yet it was incumbent upon the plaintiff to have moved the trial court also for such substitution and in case he had failed the consequences should follow.

5. It is true that a formal substitution application is required to be given in the trial court also for the purpose of incorporating amendment in the array of the parties in the plaint. But in case the plaintiff has failed to move this formal application it will not amount abating the suit- In the present view of the matter the application (79-C) moved by the petitioner had absolutely no merit and it has rightly been rejected by the courts below.

6. As regards formal amendment in the plaint by way of substitution of the deceased plaintiff it is definitely a must. It has to be recorded and for that purpose a formal application which may not amount to be application under Order XXII Rule 3 C.P.C. has to be moved and this can be done at any stage subsequent to the disposal of the earlier revision which was pending before the District judge. Therefore, in case the respondent-plaintiff has not yet moved the trail court for incorporating this formal amendment, he would move it as early as possible.

7. With these observations, this writ petition is disposed of.