V.P. Gupta, J.
1. This is a defendants' appeal against the judgment and decree dated 11-9-1978 passed by the Additional District Judge, Mandi, by which the plaintiffs' (respondents' suit for declaration and injunction was decreed and the judgment and decree dated 30-10-1975 passed by the Senior Sub Judge, Mandi was set aside.
2. The plaintiffs filed a suit on tine allegations that they were employees of the Himachal Government Transport, which is a commercial concern and is doing the business of running and operating road transport service. Prior to 18/19-9-1959 they were working in different capacities with Himachal Government Transport.They were absorbed in the service of Mandi Kulu Road Transport Corporation (defendant No. 2) on the formation of the said Corporation from 18/19-9-1959. Previously the transport services were operated by Himachal Government Transport and Mandi Kulu Valley Company, but in the year 1959 the routes along with the services were taken over by the aforesaid Corporation (defendant No. 2) along with the assets and the employees.
3. The plaintiffs allege that they were serving the Corporation (defendant No. 2) but are employees of the Himacnal Government Transport, being on foreign service with the Corporation. The plaintiffs also claim a Hen over the post which they were holding in the Himachal Government Transport prior to their, absorption in the Corporation (defendant No. 2). On these allegations the plaintiffs have filed (he present suit for declaration and injunction claiming that they are holding a lien on their substantive permanent posts in the Himacha! Government Transport and are entitled to all the rights, privileges etc. In the alternative it is claimed that the plaintiffs are entitled to the same conditions of service with regard to pay, promotions and other benefits etc. as were admissible to them as employees of the Himachal Government Transport with a mandatory injunction for the enforcement of the above reliefs against defendant No. 2.
4. This suit was filed in the Court of Senior Sub Judge, Mandi on 16-12-1963.
5. The defendants did not admit the plaintiff's claim and raised several preliminary objections. On merits the claim of the plaintiffs was denied and it was alleged that the plaintiffs were no longer in the service of the Himachal Pradesh. Government Transport and by exercising their option of their own free will they had joined the service of the Corporation (defendant No. 2) and ceased to be the employees of the defendant No. 1. It was alleged that the existing conditions of service of the plaintiffs were protected by the Corporation, ft was denied that the plaintiffs were on 'foreign service' or that they had any lien in the Himachal Government Transport. The plea of estoppel was also raised.
6. On the pleadings of the parties, the following preliminary issues were framed on 20-10-1964 :--
1. Whether the suit in the present form is not maintainable because the plaint isvague and indefinite as to necessary particulars? If so, its effect? OPDs.
2. Whether the present suit as framed is not maintainable for declaration or. for injunction or both? OPDs.
3. Whether the plaint is properly valued for the purposes of Court-fee and jurisdiction? OPP.
4. Whether the plaint does not disclose any cause of action If so, its effect ?OPDs.
5. Whether the plaint is bad for multi-fariousness OPDs.
6. Whether the plaintiffs are estopped from filing the present suit dtie to their conduct? OPDs.
7. Whether Shri Devinder Kumar plaintiff No. 1 has resigned and therefore his name is liable to be struck off from the record? OPDs.
8. Whether the rights claimed by the plaintiffs against the defendants are not justiciable? OPDs,
7. The Senior Sub Judge, Mandi vide his order dated 14-9-1965 decided issues Nos. 1, 2, 4 and 5 against the defendants. Issue No. 7 was decided in favour of the defendants and issue No. 3 was decided in favour of the plaintiffs. No decision was given on issues Nos. 6 and 8 which were left open for decision on merits.
8. On merits, the following Issues were framed on 17-11-1965:--
9. Whether the plaintiffs were transferred to the foreign service with, defendant No. 2 as set out in para No. 2 of the plaint and what is the effect of plaintiffs opting for the service of defendant No. 2 OPP.
10. Whether it was agreed that the plaintiffs would be governed with service conditions which may have prevailed in H.G.T. department from time to time? OPP.
11. Whether the plaintiffs bad retained a lien on their respective posts in, H.G.T. after their transfer as set out in para No. 3 of the plaint? OPP.
12. If issue No. 10 proved in the affirmative whether defendant No. 2 had not guaranteed to the plaintiffs the same conditions of service as would have obtained to them if they had been employees of defendant No. 1 as set out in para No. 4 of the plaint? OPP.
13. If issue No. 11 is found in the affirmative whether defendant No. 1 has not recognised the lien of the plaintiffs not their right of reversion to such posts as set out in para No. 9 of the plaint? OPP.
14. Whether the plaintiffs have not resigned from the service of defendant No. 1nor transferred to foreign service of defendant No. 2 by way of punishment as set out in para No. 7 of the plaint? OPP.
15. Whether the plaintiffs are entitled to the relief of declaration and injunction against defendant No. 2 as set out in para No. 9 of the plaint if they are not found entitled to relief of declaration and injunction against defendant No. 1 OPP.
16. Whether the plaintiffs are to be governed with regard to their service conditions under the provisions of the Road Transport Corporation Act, 1950 and Rules framed thereunder and according to the provisions of other labour laws? OPD-2.
17. If issue No. 10 is found in affirmative whether the agreement with regard to the service condition is void. as set out -in para No. 9 of the written statement? OPD.(Objected to)
9. The Senior Sub Judge, Mandi vide his judgment and decree dated 31-10-1967 decreed the plaintiff's suit for declaration, to the effect that they were employees of the Himachal Government Transport department presently serving with defendant No. 2 (Corporation) and were entitled to all the benefits including their, rights to revert to their parent department and were also entitled to have counted their service with the Corporation, for the matter of promotion in the parent department.
10. The defendants feeling aggrieved from this judgment and decr.ee filed an appeal. The Additional District Judge, Mandi vide his judgment dated 29-7-1970 accepted the appeal and remanded the case to the Court of Senior Sub Judge, Mandi for a fresh decision on the grounds that the judgment was not written in accordance with the provisions of O. 20, C. P. C. and some documents were not admitted in evidence in accordance with the provisions of O. 13, C. P. C.
11. After remand the Senior Sub Judge, Mandi, dismissed the plaintiffs suit vide his judgment and decree dated 30-10-1975. The Senior Sub Judge, decided issues Nos. 9, 10, 12, 14 and 15 against the plaintiffs. Issue No. 7 was decided in favour of tine plaintiffs and issues Nos. 6 and 16 were decided against the defendant. No decision was given on issues Nos. 13 and 17 which had become redundant in view of the findings on other issues.
12. Aggrieved from this judgment and decree, the plaintiffs filed an appeal. The Additional District Judge, Mandi, acceptedthe appeal vide his judgment and decree dated 11-9-1978 by setting aside the judgment and decree of the Senior Sub Judge, Mandi dated 30-10-1975, The Additional District Judge granted a decree in favour 61 the plaintiffs to the effect that they were government servants under the Himachal Pradesh Govt. Transport Deptt. and were entitled to ail benefits of government employees. The Corporation was restrained from making any change in the service conditions of the plaintiffs.
13. I have heard Shri D.K. Khanna for the defendants-appellants and Shri M.L. Sharma for the plaintiffs-respondents at considerable length and have also gone through the records of the case.
14. A preliminary objection was raised by the respondents' counsel to the effect that some of the respondents/plaintiffs died during the pendency of this appeal and their legal representatives were not brought on record, therefore, this appeal should be dismissed as abated. It was contended that this appeal could not proceed in the absence of the legal representatives of the deceased plaintiffs-respondents because there could be a likelihood of two contradictory decrees.
15. The learned counsel for the appellant contended that the plaintiffs suit was in their individual capacity on personal matters and rights and, therefore, there was no question of bringing their legal representatives on record. It was contended that every plaintiff could file a separate suit and for this reason too the appeal did not abate as a whole.
16. The learned counsel contended that some of the plaintiffs did not file the appeal before the District Judge for the simple reason that every plaintiff had an individual right and the decree passed by the Additional District Judge was not indivisible.
17. I have considered the contentions of 'the learned counsel for the parties.
18. Respondent No. 11 (Dodu Ram Carpenter son of Kannu, plaintiff No. 17) respondent No. 15 (Govind Singh driver S/o Bhagat Singh, plaintiff No. 21) and respondent No. 24 (Dalip Singh driver S/o. Ghaniya Lal plaintiff No. 34) died during the pendency of this appeal. The names of respondents Nos. 11 and 15 (Dodu Ram and Govind Singh) were deleted vide order dated 24-7-1979. In the application (C.M.P. (M) No. 33 of 1981) it is stated that Dodu Ram and Govind Singh died on 1-3-1979 and 15-4-1979 respectively and that Dalip Singh respondent No. 24 died on 19-2-1981. The appellant filed a reply and admitted that Dodu Ram died on 1-3-1979 while in service, and the other respondents also died after their retirement. The exact date of death was not admitted due to want of knowledge. from these facts it is proved that respondents Nos. 11, 15 and 24 died during the pendency of the appeal. They were plaintiffs in the original suit and were appellants Nos. 11, 15 and 24 before the Additional District Judge. The suit of those plaintiffs along with other plaintiffs was dismissed by the Senior Sub Judge, but the appeal of these respondents along with some other respondents was accepted by the Additional District Judge. Thus a decree was passed in favour of these three deceased plaintiffs along with other plaintiffs by the Additional District Judge.
19. Shri D.K. Khanna contended that all the plaintiffs did not join in appeal before the District Judge. This contention is correct, because originally there were 48 plaintiffs in the suit. The name of plaintiff No. I (Devinder Kumar) was deleted and only 47 persons remained plaintiffs in the suit. The suit of all these 47 plaintiffs was dismissed by the Senior Sub Judge. The plaintiffs, other than plaintiffs Nos. 2 to 5, 14, 28 to 30, 36, 40, 42 to 45, filed an appeal-Plaintiff No. 26 also did not pursue the appeal and his name was struck off from the array of the appellants on 6-5-1977. His appeal stood dismissed. Before the District Judge two persons Mangat Ram (respondent No. 31) and Jagdish store-keeper (respondent No. 34) also filed an appeal although they were not plaintiffs in the original suit. These two persons also secured a decree in their favour from the Additional District Judge.
20. For the present controversy these facts are not relevant because the present respondents including the three deceased respondents were successful in getting a decree in. their favour from the Court of Additional District Judge on 11-9-1978. If it is found that the decree passed by the Additional District Judge against the respondents is joint and indivisible or if the decision or the success of this appeal in the absence of the deceased respondents, in whose favour the decree has become final, is likely to lead to contradictory decrees, then in that case the present appeal cannot proceed. On the other hand, if it is held that the decree is divisible and there is no likelihood of any contradictory decrees being passed, then the appeal can proceed in the absence of deceased respondents.
21. The decree of the Additional District Judge against the deceased respondents is final and binding and the appeal has abated qua these respondents (plaintiffs). They have secured a successful decree against the defendant (appellant) with respect to their rights or status. The respondents, who are alive, may get this status of employment or not and this point requires adjudication on merits in this appeal. It is possible that they may be allowed the same status as has been allowed to the deceased respondents or they may not get this status and their suit is dismissed by acceptance of the appeal.
22. In AIR 1962 SC 89, State of Punjab v. Nathu Ram, certain land belonging to two brothers jointly was acquired for military purposes. The Collector offered compensation but these joint owners refused to accept the compensation and the matter, was referred to arbitrator. The arbitrator passed a joint award granting higher, compensation. The State appealed against the award but during the pendency of the appeal one of the brothers died and his legal representatives were not brought on record. The question arose as to whether, the appeal had abated against the other brother or not. It was held that the appeal could not proceed in the absence of the legal representatives of the deceased brother because the subject matter for which the compensation was awarded was one and the same land and the assessment of compensation So far as the deceased was concerned had become final. There could not be different assessments of compensation for the same parcel of land and the mere fact that specific shares of the two brothers were recorded in the revenue records was not guarantee of their correctness. The following propositions of law emerge from this judgment as have been noticed in AIR 1969 Punj 216, Swaran Singh v. Ramditta Badhawa:
'(I) On the death of a respondent, an appeal abates only against the deceased, but not against the other surviving respondents;
(II) In certain circumstances, an appeal on its abatement against the deceased respondent, cannot proceed even against the surviving respondents and in those cases the appellate Court is bound to refuse to proceed further With the appeal and must; therefore, dismiss it;
(III) The question whether a Court can Seal with such matters or not will depend on the facts and circumstances of each case and no exhaustive statement can be made about those circumstances;
(IV) Some of the circumstances in which the Court would refuse to proceed further with the appeal against the surviving respondents on the abatement of the appeal against; a deceased respondent are these:
(a) if the appeal between the appellantsand the respondents other than me deceasedcan bet said to be properly constituted or canbe said to have all the necessary parties forthe decision of the controversy before theCourt, the Court will proceed with the appeal except-
(i) When the success of the appeal maylead to the Court's coming to a decisionwhich will be in conflict with the decisionbetween the appellants and the deceased respondent and would, therefore, lead to theCourt's passing a decree which will be contradictory to the decree which had becomefinal with respect to the same subject-matterbetween the appellants and the deceased respondent;
(ii) when the appellants would not havebrought the action for the (necessary reliefagainst those respondents alone who are stillbefore the Court; and
(iii) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say it could not be successfully executed;
(b) If the decree under appeal is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent;
(V) The view taken by the Courts in some cases previously to the effect that the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents may be suitably dealt with by the appellate Court is incorrect. The specification of shares or. of interest of the deceased respondent does not: affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour;
(VI) The abatement of an. appeal means not only that the decree between the appellant and the deceased respondent has become final but also as a necessary corollary that the appellate Court cannot in any way modify that decree directly or indirectly.'
23. In AIR 1966 SC 1427, Sri Chand v. Jagdish Pershad Kishan Chand, thefacts were as follows: The plaintiff filed a suit against the defendant and three persons stood sureties for the satisfaction of the decree to be passed in the suit by executing an unregistered bond. . The decree was sought to be executed against the surety by enforcing the surety bond. The sureties raised various objections. These objections were rejected by the executing Court and the order was upheld by the High Court. The sureties filed an appeal with the Supreme Court but one of the sureties died and his legal representatives were not brought on record within limitation. The question arose as to whether the appeal had abated or not. It was held that the High Court had made ad order holding that the sureties were liable to satisfy the claim and this order of the High Court had become final so far as the deceased surety was concerned. It was further held that there was a possibility of two inconsistent orders coming into existence, if the appeal was to be decided by the Supreme Court and in view of this proposition the appeal was dismissed as having abated. The Hon'ble Judges of the Supreme Court observed that the mere fact that the obligation arising under a covenant may be enforced severally against all the covenantors does not make the liability of each covenantor distinct. It is true that in enforcement of the claim of the decree holder the properties belonging to the sureties individually may be sold separately. But that is because the properties are separately owned and not because the liability arises under distinct transactions. It is further observed in para 7 of the judgment that the three tests suggested in Nathu Ram's case (AIR 1962 SC 89) (supra) are not cumulative tests. Even if one of them is satisfied, the Court may,having regard to a11 the circumstances, hold that the appeal has abated in its entirety.
24. In Swaran Singh Puran Singh, (AIR 1969 Punj 216) (supra) a 'suit was brought for possession by the plaintiffs (sister's sons)against collaterals on the ground that theywere the preferential heirs of their deceased maternal uncles. This suit was dismissed by the trial Court and the decree was affirmed by the first appellate Court. A second appeal was filed in the High Court by the plaintiffs. During the pendency of the appeal one of the respondents (collaterals) died. No legal representative of the deceased was brought on record. It was held that the plaintiffs could not in the circumstances of the case argue that they could have filed separate suits against all the defendants-respondents and even if they could do so the fact remains 'hat they filed one suit for possession against all defendants and having done so they could not now argue that the suit should be deemed to be for separate decrees for possession of undivided specified shares in the property in question for the purposes of deciding the question of abatement. It was held that me appeal having abated against one of the collaterals became Incompetent and could not be. proceeded with against even the surviving respondents.
25. In AIR 1974 Punj & Har 5, Bhagwan Singh v. Kulwinder Singh, in execution of a decree some property was put to auction and was sold. The sale was confirmed subsequently. 8 persons were entitled to the property which was the subject matter of the sale. Out of these 8 persons, four persons filed objections impleading the other four persons as respondents, alleging that the sale was void inasmuch as 75 per cent of the balance was not deposited within the prescribed time. This objection petition was dismissed by the executing Court An appeal was filed and during the pendency of the appeal two objectors died and their legal representatives were not brought on record. A single Judge of the High Court dismissed the appeal as having abated. An appeal was preferred against this order of the learned single Judge and it was contended that any one of the appellants objectors was entitled to independently challenge, the validity of the entire sale under Order 21, Rule 85 and, therefore, abatement of appeal in respect of some appellants did not affect the maintainability of the appeal by the remaining appellants. This contention was not accepted and it was held that the subject matter of the appeal was the validity of the sale which had become final against the deceased appellants. Therefore, the entire appeal abated since holding otherwise could result in contradictory decisions in respect of the same matter, that is, sale being valid in respect of deceased appellant and being invalid in respect of the remaining appellants and as a result of this finding, the appeal was dismissed.
26. In AIR 1963 SC 1901, Rameshwar Prasad v. Shambehari Lal Jagannath it was held that the appellate Court has no power to proceed with an appeal and vary the decree in favour of all the plaintiffs or defendants under Order 41, Rule 4, C. P. C. when the decree proceeds on a ground common to all the plaintiffs or defendants If all the plaintiffs or the defendants appeal from the decree and any one of them dies and the appeal abates so fat as he, is concerned
27. In AIR 1973 SC 204, Babu Sukhram Singh v. Ram Dular Singh, it has been held that where a joint claim was made against all the defendants and during the pendency of the appeal some of the defendants died and no separate claim was made against any of the defendants, the failure of the plaintiffs to bring on record their, legal representatives resulted in the abatement of the appeal in toto.
28. In the present case the plaintiffs filed a joint suit against the defendant-appellants for a declaration and injunction and in the aiternative they claimed that they were entitled to same conditions of service with regard to pay, promotion and other benefits etc. as were admissible to them as employees of the Himachal Pradesh Government. The defendants raised an objection that the suit was bad for misjoinder. of parties or causes of action but the plaintiffs in their rejoinder did not admit this plea of the defendant and alleged that the plaintiffs had a joint cause of action and that the common cause ofaction canvassed in the suit would not inany way embrace a joint trial. Issue No. 5 regarding multifarious-ness was framed and this issue was decidedagainst the defendants. It was held that there was a common cause of action of the plaintiffs against the Government. From tine facts, it is evident that all the plaintiffs wanted the same relief by claiming a declaration and injunction. A joint decree was passed in favour of the plaintiffs-respondents (including the deceased respondents). Now if the present appeal is allowed to proceed against the surviving respondents, then in that case this possibility cannot be ruled out that the appeal may be accepted and the suit of the surviving respondents may be dismissed. In such a case there is every possibility of two contradictory decisions with respect to the same subject matter and upon the same allegations. All the plaintiffs have raised similar pleadings and want the same relief on similar facts. This relief was rightly or wrongly allowed to the plaintiffs by the Additional District Judge. In case this appeal is allowed to proceed then on the same facts and on the same allegations the possibility of a contradictory decision cannot be ruled out. Hence according to he principles laid down in Nathu Ram's case (AIR 1962 SC 89) (supra) and Sri Chand (AIR 1966 SC 1427) (supra), this appeal cannot proceed in the absence of deceased respondents.
29. The learned counsel for the appellants placed reliance upon AIR 1975 Raj 163, Gulam Mohammad v. Kishan Lal and AIR 1976 Delhi 43, Municipal Corporation of Delhi v. Madan Mohan.
30. In Gulam Mohammad and another (supra) a suit for ejectment was filed by Kishan Lal plaintiff against Gulam Mohammad defendant No. 1. It was alleged that Gulam Mohammad defendant No. 1 had sublet the premises to Adarsh Loha Sahkari Samiti (defendant No. 2) without the permission of the plaintiff. It was also alleged that a portion of plot had been sublet to defendant No. 3, Chhotu, The plaintiff had also sought the ejectment on the ground of personal necessity.
31. The allegations of personal necessity as well as subletting were denied by Gulam Mohammad defendant No. 1 and it was alleged that defendant No. 1 carried on business in the name of the Samiti. The trial Court dismissed the plaintiff's suit and negatived the plaintiff's allegations regarding personal necessity as well as subletting.
32. An appeal was filed and the appellate Court upheld the findings of the trial Court on the question of personal necessity but reversed the judgment a.nd decree of the trial Court on the ground of subletting and as a result the plaintiff's suit for ejectment was decreed.
33. A second appeal was filed by defendant No. 1, Gulam Mohammad and the Samiti. Chhotu defendant No. 3, who was respondent No. 3 in the first appeal, died during the pendency of the appeal in the first appellate Court. The appellant's counsel in the second appeal contended that the decree of dismissal of the suit by the trial Court had become final qua Chhotu and there was a possibility of a conflicting decree being passed and was in fact passed by the first appellate Court by accepting the appeal and decreeing the plaintiff's suit. The learned single Judge held that the appeal had not abated due to the death of Chhotu and the reasonings for this decision are given in paras 8 and 9 of the aforesaid judgment. The learned single Judge held that the suit could proceed in the absence of Chhotu, defendant No. 3, as it was not a joint claim in which all the defendants were jointly interested and the Court could deal with the question, of subletting qua Gulam Mohammad and the Samiti, even in the absence of Chhotu. It was further held that sub-tenants were not necessary parties to the suit. As a consequence it was teld that non-impleading of the legal representatives of Chhotu did not result in the abatement of the appeal. Hence this judgment is distinguishable and is not applicable.
34. In Municipal Corporation of Delhi (AIR 1976 Delhi 43) (supra), these were the facts. An appeal had been preferred by three persons against the order of Assessor and Collector fixing the annual rental value of premises before the Additional District Judge. Appellants Madan Mohan and Jagat Narain described themselves as the managing landlords of the building while appellant No. 3 was the managing partner, that is, the lessee of the premises. During the pendency of the appeal, appellants Nos. 1 and 2 died. Many other owners were not parties to the appeal which was filed in a representative capacity. The Additional District Judge decided the appeal in the absence of the legal representatives of the deceased appellants Nos. 1 and 2 owners. The decision of the Additional District Judge was challenged by the Municipal Corporation by filing a writ petition under Articles 226/227 of the Constitution of India. It was contended that the appeal before the. Additional District Judge had abated as the legal representatives of the landlords appellants Madan Mohan and Jagat Narain had not been brought on record. This contention was not accepted foe the reason that the lessee, C.V. Desai, had an independent right of appeal. It was further held that the appeal filed by the two landlords was in a representative capacity and there was no question of abatement when an appeal or a suit was filed by some of the persons in a representative capacity on behalf of many persons. The learned single Judge further held that there was no question of abatement in the case where an appeal or a suit is filed in a representative capacity. This judgment is also not applicable to the facts of the present case.
35. As a result of the above discussion I am of the view that the present appeal (which has abated against the. three deceased respondents) cannot proceed against the other respondents also and the whole appeal should be dismissed as having abated. With these observations the present appeal is dismissed with no order as to costs.C M. P. No. 145 of 1980.
36. This application has been filed by one Rishi Raj under Order 41, Rule 20, Civil P.C. for being impleaded as a respondent, As the appeal has been dismissed as having abated, therefore, this application is being dismissed as having become infructuous.
C.M.P. (M) No. 33 of 1981.
37. The present application was filed by the respondents with a prayer that the appeal should be dismissed as having abated. The appeal has already been dismissed as having abated, therefore, this application is dismissed as having become infructuous.