Rajesh NaraIn and Another Vs. Ist Additional District Judge and Others - Court Judgment

Excerpt:
civil - transposition of plaintiff to defendant - order 1 rule 10 and order 7 rule 11 of code of civil procedure, 1908 - co-plaintiff who executed sale deed transposed as defendant in a suit for cancellation - allegation regarding right of transferor to execute deed - such order of transposition of transferor not to render cause of action exhausted - no need to return plaint - existing plaintiffs capable to proceed with suit. - motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary 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 tax payable thereupon must be deducted.d.k. seth, j.1. the opposite parties filed a suit against the petitioners as defendants for cancellation of a sale deed executed by one rama nand who was a co-plaintiff. subsequently by an order dated 23.11.96, the said rama nand was transposed as defendant. against the said order passed by learned civil judge (junior division), karvi in suit no. 159 of 1990, civil revision no. 20 of 1996 was preferred. by an order dated 19.4.99 passed by addl. district judge 1st court, chitrakoot, the said revision was dismissed. it is this order which has since been challenged. mr. rajendra kumar, learned counsel for the petitioners contends that on the transposition of rama nand, the executor of the document, the suit became not maintainable before the civil court and as such, the plaint should have been returned under order vii, rule 11 of the c.p.c. thus, the suit cannot proceed. in such circumstances, he has contended that by reason for the said order passed in revision the plaint should have been returned. the question cannot be gone into in this court and in view of transposition by virtue of order 1. rule 10 of the c.p.c. the question whether any cause of action survives or not and whether the plaint should be returned or not should be determined separately. the consideration of thecase for transposition within the meaning of order 1, rule 10 of the c.p.c. does not postulate a decision under order vii, rule 11 c.p.c. or the question of maintainability of the suit as the case may be, and that too without framing issues.2. be that as it may, in the suit it was claimed that the property was allotted by virtue of having a settlement in favour of the plaintiffs and that the said rama nand did not have right to transfer the suit property in its entirety. thus, by reason of transposition of rama nand, it cannot be said that there was no title left to the remaining plaintiff for which the suit cannot be proceeded with. it is contended by the counsel for the petitioner that the suit cannot be proceeded with by the civil court. since on such transposition. the plaintiffs become bhumidhari and the cancellation of sale deed in such case is maintainable before the revenue court and as such, the plaint should have been returned. but the said question is dependent upon the question of the maintainability of the suit, in asmuch as when a document is void and can be ignored, a suit before the revenue court would be maintainable but when the document is voidable, the civil court may have jurisdiction. but these are questions which require determination. such questions could not have been determined within the scope and ambit of transposition under order 1, rule 10 of the c.p.c. such questions are questions on merit which can be decided only after issues are framed.3. apart from it, the petitioner has challenged the order dated 19.4.99 passed in revision affirming the order of learned civil judge (junior division). regarding order of transposition, the defendant cannot claim any right to oppose the transposition.4. as such, in the facts and circumstances of the case, i am not inclined to interfere in the impugned order. the writ petition, therefore, falls and is accordingly dismissed. no cost.5. it would be open to the petitioner to raise such question of maintainability or otherwise as have been asked before this court in course of proceeding on which issues may be framed and decided in accordance with law.