Dr. Ramkrishna Pandey vs Hari Bhoomi Daily News ...
2022 Latest Caselaw 3897 Chatt

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                                                                NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                         FA No. 212 of 2011
    Dr. Ramkrishna Pandey S/o Pt. Leela Prasad Pandey, R/o Near
     Shiv Mandir, New Shanti Nagar, Raipur (C.G.)
                                                        ---- Appellant
                                Versus
   1. Hari Bhoomi Daily News Paperandanr. Hari Bhoomi Daily News
      Paper Hari Bhoomi Premises, Dhamtari Road, Tikrapara, Raipur
      (C.G.)
   2. Editor, Hari Bhoomi (Daily News Paper), Hari Bhoomi Premises,
      Dhamtari Road, Tikarapara, Raipur (C.G.)
                                                    ---- Respondents

For Appellant : Shri Arham Siddiqui on behalf of Ms. Hamida Siddiqui, Advocate For Respondent : Shri Raja Sharma, Advocate

Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

21.06.2022

1. The appeal has been filed by the appellant against judgment and decree passed by the learned Fifth Additional District Judge, Raipur passed in Civil Suit No. 18-B/2011 by which the plaintiff has filed suit for defamation against the defendants claiming Rs. 1,00,000/- which has been dismissed on 07.09.2022 by the Fifth Additional District Judge, Raipur.

2. During the pendency of the appeal, the appellant who was practicing advocate has expired on 20.01.2022. Learned counsel for the respondents has also filed intimation letter by bar association, Raipur addressed to the District Judge, Raipur with regard to proposal made by the bar association, Raipur for condolence and would submit that since the appellant has expired, the appeal stands abated. He would refer to the judgment of the Hon'ble Supreme Court in case of Melepurath

Sankunni Ezhuthassan vs. Thekittil Geopalankutty Nair 1 wherein Hon'ble Supreme Court has examined the issue and has held as under :-

6. So far as this country is concerned, which causes of action survive and which abate is laid down in section 306 of the Indian Succession Act, 1925, which provides as follows :

"306. Demands and rights of action of or against deceased survive to and against executor or administrator. - All demands whatsoever and all rights to prosecute or defend any action or special processing existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.

Section 306 speaks of an action and not of an appeal. Reading section 306 along with Rules 1 and 11 of Order XXII of the Code of Civil Procedure, 1908, it is, however, clear that a cause of action for defamation does not survive the death of the appellant.

7. Where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal is his right to sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the appellant dies during the pendency of the appeal. The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged in the decree and the decretal debt forms part of his estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff- respondent which his legal representatives is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff.

9. The position, therefore, is that had the Appellant died during the pendency of his suit, the suit would have abated. Had he died during the pendency of the appeal filed by him in the District Court, the appeal would have equally abated because his suit had been dismissed by the Trial Court. Had he, however, died during the pendency of the second appeal filed by the respondent in 1 (1986) 1 SCC 118

the High Court, the appeal would not have abated because he had succeeded in the first appeal and his suit had been decreed. As, however, the High Court allowed the second appeal and dismissed the suit, the present Appeal by Special Leave must abate because what the Appellant was seeking in this Appeal was to enforce his right to sue for damages for defamation. This right did not survive his death and accordingly the Appeal abated automatically on his death and his legal representatives acquired no right in law to be brought on the record in his place and stead."

3. Learned counsel for the respondent would further refer judgment of the Hon'ble Supreme Court in case of Subramanian Swamy vs Union of India, Ministry of Law and Others 2 wherein Hon'ble Supreme Court has held as under :- "172. In Melepurath Sankuni Ezhuthassan v. Thekittil Geopalankutty Nair, a suit for damages was dismissed by the trial court but on an appeal being preferred, the same was allowed. In second appeal, the High Court reversed the decree of the appellate court and dismissed the cross objections of the respondent therein. The appellant preferred an appeal by special leave before this Court and during the pendency before this Court, he died. His surviving legal heirs came to be brought on record to prosecute the appeal. The issue that arose before this Court was whether the appeal should abate. The Court posed the question whether in a defamation action, the right to sue survives if the plaintiff dies. The Court referred to the Common Law principle and the maxim action personalis moritur cum persona (a personal action dies with the person) and thereafter referred to Section 306 of the Indian Succession Act, 1925 as to which causes of action survive and which shall abate. The Court in that context opined thus:-

"7. Where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal is his right to sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the appellant dies during the pendency of the appeal. The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged in the decree and the decretal debt forms part of his estate and the appeal from the decree by the defendant becomes a question of

2 (2016) 7 SCC 221

benefit or detriment to the estate of the plaintiff respondent which his legal representative is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent plaintiff".

4. Learned counsel for the appellant would not object the legal submission made by the learned counsel for the respondents and would submit that it is a defamation suit which is personal in nature and it has been dismissed by the trial Court, therfore, the legal representative of the deceased cannot be brought on record to continue with the suit/appeal for defamation of the appellant, therefore, the appeal may be dismissed as abated.

5. Accordingly, in the light of the above submission and abovestated well settled legal position, the appeal is dismissed as abated.

6. No order as to costs.

Sd-

(Narendra Kumar Vyas) Judge kishore