Q: My father was an employee working in a private company. Before he had reached the retirement age, his service was suddenly terminated and he was given a notice of superannuation. My father filed a suit before the district court challenging the illegal termination by seeking a declaration that the notice issued was illegal. He also asked for damages. Nearly a year ago, while the suit was pending my father died. I am the executor of my father’s will. Can I continue the suit against the employer of my deceased father challenging the order of his removal? Can the employer stop me from doing so?

Kalpana Kar, Calcutta

A:The death of a plaintiff in a civil suit does not automatically cause the suit to abate. The plaintiff’s heirs and / or legal representatives are entitled to apply to the court to be made a party and proceed with the suit within the time limited by law if the right to sue survives. Thus, there are two aspects of the matter that require consideration in your case. First, whether the laws of limitation bar you from making an application for substituting yourself in place of your father and second, on merits, whether your father’s right to sue his employer survives after his death. Normally unless one makes the application within 90 days of the plaintiff’s death, the suit abates and stands dismissed against the defendant. The Code of Civil Procedure however provides that the heirs can even thereafter make an application for setting aside the abatement within a further 60 days. In your case however the time prescribed under law has obviously passed long ago. However, you may still be able to apply under the provisions of Section 5 of the Limitation Act, 1963, for condoning the delay and allowing you to contest the suit if you can show and establish that you were prevented by “sufficient cause” from making the application earlier. This relief is of course discretionary.

Once you cross the hurdle of limitation, the defendant may possibly seek to rely upon an old latin maxim actio personalis moritur cum persona that “an action in personam dies with the person” and as such your father’s right in respect of his job cannot be pursued by his heir. However, our courts have held that this principle of law is not applicable in India except to the extent where it is specifically recognised by our statutes. In fact in one decision, the court has strongly (and eloquently) criticised this maxim and observed that it is “an unjust maxim, obscure in its origin, inaccurate in its expression and uncertain in its application and often causes grave injustice”. After all, unless barred by statute, the heirs ought not be deprived of the fruits of litigation initiated by their predecessor.

In any event, you are likely to succeed in getting yourself substituted because Section 306 of the Indian Succession Act, 1925, provides, inter alia, all rights to prosecute any proceeding in favour of a person at the time of his death survives to his executors or administrators except in specific cases for defamation and in cases of personal injury (not resulting in death) or in certain other cases where the relief if granted cannot be enjoyed and would be nugatory. Since your father’s suit does not fall within any of the exceptions mentioned in the said section, there can be no doubt that you, as the executor or even as the heir of your father’s estate, can continue the action and that the suit in so far as it concerns damages for breach of contract survives to the heirs / legal representatives of the deceased plaintiff. However, your “locus” or standing to carry on with the suit would be limited only to obtaining monetary benefits which would have accrued within the lifetime of the deceased employee and not for any sums accruing beyond that period.