Shri Rajbir Singh Sharma Etc. vs Shri Siri Ram Etc.
2004 Latest Caselaw 865 Del

JUDGMENT

O.P. Dwivedi J.

1. This is a petition under section 115 CPC read with article 227 of the Constitution of India directed against the order dated 9.3.2000 passed by the learned Additional District Judge thereby rejecting the petitioner's application under O. 22 Rule 3 read with section 151 CPC for bringing on record the LRs of the deceased Ram Richpal Sharma.

2. Briefly stated facts leading to this case are that on 21.12.96, Ram Richpal Sharma, since deceased, his wife Shanti Devi, his son Mukesh and one Smt. Kanti Devi, widow of Mahabir Prasad filed a suit for recovery of Rs.5 lakh on account of damages for various tortious/criminal acts allegedly committed by the defendants on 21.5.82. It was alleged in the plaint that Ram Richpal Sharma, plaintiff No. 1, since deceased, along with his brother Netra Ram were owner of the property No. 641-D/1 and 641-D/2, built on khasra No. 2891/ 104, Village Chandrawali, Ram Nagar, Loni Road, Delhi Shahdara. It was alleged that defendant No. 1 and 2 wanted to forcibly dispossess the plaintiff No.1 from the suit property. Defendant Nos. 3 to 5 are police officials. In furtherance of their conspiracy they attacked the plaintiff on 21.5.82, at 10 a.m. It was alleged that defendant No.3 to 5 broke the main door from the out side of the property 641-D/1. They also fired shots in the air. Thereafter, defendant No. 3 to 5 allegedly gave merciless beatings to Mahabir Prasad and to Smt. Bahali Devi, mother of the plaintiff No.1. It is further alleged that defendants committed dacoity and took away golden ornaments and cash besides household articles all worth Rs. 57,000/-.

3. Further at the instance of defendant No. 1 and 2, police officials wrongfully arrested the plaintiff beside Mahabir Prasad, husband of plaintiff No.3, Bahali Devi, mother of plaintiff No.1 and illegally detained them and maliciously prosecuted them under section 452/ 506/ 147/ 148/ 149/ 186 and 34 IPC. The possession of 641-D1, Ram Nagar, Delhi Shahdara was wrongfully handed over to the defendant No.1 who had no right, title or interest in the said property. Ultimately proceedings under section 145 Cr.P.C were drawn before SDM and vide order dated 16.12.1983 possession was restored to the plaintiff No.1. The plaintiffs were maliciously prosecuted in the case of trespass from 1982-1996. Mahabir Prasad, husband of plaintiff No.3 and Bahali Devi, mother of the plaintiff No.1, both died because of the mental torture suffered by them. During such prolonged malicious prosecution, plaintiffs were ultimately acquitted on 7.2.1996. On these pleadings the plaintiff filed suit for recovery of Rs.5 lakh as damages under the following heads:-

1. Rs. 50,000/- for torture.

2. Rs. 1 lakh for wrongful arrest, wrongful detention, illegal dispossession and defamation.

3. Rs. 2.50 lakh for false and malicious prosecution and dacoity.

4. Rs.1 lakh for mental shocks and death of Mahabir Prasad and Smt. Bahali Devi.

4. Suit was contested by the defendants-respondents. During the pendency of the suit Ram Richpal Sharma expired on 22.6.99. Therefore, an application under O.22 Rule 3 CPC was filed. In the said application it was pleaded that deceased plaintiff left behind six legal heirs viz. Widow Shanti Devi, two sons Rajiv S. Sharma and Mukesh Sharma, three daughters Raj Kumari, Kamla and Indra who were cited as legal heirs. Out of these Shanti Devi and Mukesh are already imp leaded as plaintiff No. 2 and 4. Remaining 4 LRs were sought to be brought on record through this application. Learned Additional District Judge, however, rejected the application by impugned order being of the view that claim was based on personal injury, physical or mental, therefore, cause of action does not survive. Feeling aggrieved, petitioner preferred this petition.

5. I have learned counsel for the parties and perused the record.

6. Learned counsel for the parties cited various decisions on the point as to what kinds of cause of action survive in case of personal injury. In the case of Mahtab Singh V. Hub Lal and another , it was held that right to sue for damages for malicious prosecution does not survive to the LR s of the person wronged. It was further held that Section 89 of the Probate and Administration Act and Act 12 of 1855 are designed to protect suits for wrongs done to the property of a deceased person, but do not extend that protection to compensation for personal injury, the right to which dies with the death of the person injured. The right to sue for legal expenses or other losses caused to a person due to a malicious prosecution instituted against him is a personal right and it does not survive to the legal representative of such person. In the case of Ratanlal Bhannalal Mahajan v. Baboolal Hajarilal Jain and Ors-, it was held that the expression 'personal injuries in Section 306 of Succession Act is not confined to physical injuries but would include mental injuries as well. Therefore, a claim for compensation for loss of reputation or mental agony would not survive to the legal representative after the death of the party injured. Similar view was taken in the case of C.P. Kandaswamy and Others V. Mariappa Stores and Others-. In the case of Official Liquidator, Supreme Bank Ltd. V. P.A. Tendolkar (dead) by LR s and Others-, the applicability of the maxim 'actio personalis cum moritur persona' was examined in relation to the liability of the Directors of the Bank who were accused of fraud and embezzlement. It was held that this doctrine would not be applicable to actions based on contract or where a tort feaser's estate had benefited from the wrong done. Its application was generally confined to action for damages for defamation, seduction etc. It was further observed by the apex Court that as a general principle the maxim 'actio personalis cum moritur persona' cannot be extended to the cases involving breach of fiduciary duties. The liability incurred by the deceased Director must necessarily be confined to the assets or estate left by the deceased in the hands of the successors. Law on the point has been exhaustively considered by the apex Court in the case of M. Veerappa V. Evelyn Sequeira and Others- . In that case facts were that plaintiff had engaged appellant M. Veerappa, a practicing Advocate in the Supreme Court as his counsel for filing SLP against an order of the High Court of Karnataka confirming an order of eviction passed against him. SLP was, however, dismissed as withdrawn whereupon the plaintiff filed a suit against the said counsel for damages and compensation due to loss of business and on other counts. During the pendency of the suit the plaintiff died and his LR s filed application for being brought on record which was opposed on the ground that the suit was for damages for personal injuries alleged to have been caused to the plaintiff and therefore the suit abated on his death. The application was dismissed by the District Munsif. In the revision High Court reversed the order. In appeal before Supreme Court, the Supreme Court took note of various decisions of different High Courts in the light of section 89 of the Probate and Administration Act 1881 or Section 306 of the Indian Succession Act 1925. It was held that the words 'other personal injuries not causing the death of the parties' occurring in Section 306 of the Succession Act had to be read ejusdem generis, not merely with the last preceding word 'assault' but with the two preceding words 'defamation' and 'assault'. It was held that in all cases of personal injuries be it physical or mental, doctrine of 'actio personalis cum moritur persona' shall apply but the said maxim is not applicable to those cases where injuries caused to the persons tangibly affect the estate of the deceased injured person or cause an accretion to the estate of the wrong doers. It was further observed that 'Section 306 speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also'. The apex Court then considered the question whether claim was entirely based on the torts or on contract. The apex Court left the matter open for the trial Court to decide whether the suit is founded entirely on torts or on contract or partly on torts and partly on contract and deal with the matter according to law. If the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other par would survive. If the suit claim is founded entirely on contract then the suit has to proceed to trial in its entirety and be adjudicated upon. As already observed, the apex Court held that ' actio personalis cum moritur persona' is not applicable to those cases where injuries caused to the persons tangibly affect the estate of the deceased injured person or cause an accretion to the estate of the wrong-doer. In the present case, besides claiming damages for torture, wrongful arrest, malicious prosecution, defamation which are in the nature of the personal injuries to the deceased, there was also a claim for compensatory damages on account of dacoity. This claim certainly related to the loss to the estate of the deceased and therefore, at least for this part of the claim, the request of the legal heirs to be brought on record to pursue the case could not have been disallowed. At this stage, the Court was only concerned with the question of legal heirs to be brought on record to continue the suit.

7. The question as to which part of the claim related to the injuries caused personally to the deceased and which part related to the loss to the estate of the deceased could be considered precisely at a later stage after framing appropriate issues on the point. Suffice it to say that the claim of the plaintiff in question was based partly on loss caused to the estate also and therefore as observed by the apex Court in the case of M. Veerappa (supra) maxim of actio personalis cum moritur personal' will have no application where the injuries caused to the persons tangibly affect the estate of the deceased/injured person or cause an accretion to the estate of the deceased wrong-doer.

8. In the result this petition is accepted and the impugned order is set aside. The application under O. 22 Rule 3 CPC to bring on record LRs of the deceased plaintiff No.1 is allowed. Petitioner will file amended memo of parties within a week and the learned trial Court will proceed with the case according to law.

9. Parties are directed to appear before learned trial Court on 20th September 2004

10. It will be open to the learned trial Court to decide the question as to which part of claim relates to personal injuries caused to the deceased and which part related to the loss of estate of deceased who was injured in this incident, after framing appropriate issues in this regard. Cause of action in respect of claim for personal injuries, physical or mental, will not survive whereas the cause of action in respect of claim for loss of estate of deceased plaintiff will survive.