Daljit Singh And Anr. vs Yogeshwar Prasad
2006 Latest Caselaw 684 Del

JUDGMENT

Sanjiv Khanna, J.

1. By this Order, I propose to dispose of the application under Order XXII Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code, for short) filed by the appellant for bringing on record the legal representatives of the respondent.

2. The legal representatives of the respondent have opposed the said application on the ground that the right to sue does not survive after death of the respondent. An injunction, it was stated, does not run with the land but acts only in personam or against a person. Reliance in this regard was placed on Shankara Lingappa v. Nanje Gowda reported in AIR 1981 Kar 78 and Tej Kumar Jain v. Purshottam . It was further submitted that the original suit as filed was not based upon a contract between the appellant and the respondent but based upon ?torts? and on the death of the respondent the said suit, thereafter made subject matter of an appeal abated. Reliance in this regard was placed upon the commentaries of Winfield and Zolowicz on ?torts?, Ratanlal and Dhirajlal on ?Law of torts? and judgments in M. Veerappa v. Evelyn Sequeira and Ors. , E.I. Ltd and Anr. v. Klaus Mittelbachert (deceased) through LRs , Union of India v. Sat Pal Dharma Vir reported in AIR 1969 J and K 128, S.P. Chengalvaraya Naidu (dead) by LRs v. Jagannath (dead) by LRs , Attorney General v. Birmingham, Tame and read Drainage Board reported in 1881 (17) Chancery Division 685, Jamsetji Manekji Kotval v. Hari Dayal reported in 2nd XXXIL (Bombay Series) 181 and Amritlal Vadilal v. Kantilal Lalbhaj reported in AIR 1931 Bom 280.

3. Learned counsel for the appellants, on the other hand, had drawn my attention to the judgment dated 25th February, 1983 passed by the Civil Judge and the issue No. 1 decided therein. He submitted that the suit for injunction was not a suit on ?torts? as it was not based on an action for un-liquidated damages. It was argued that the right to sue survives and the appeal had not abated. Reliance was placed upon the judgments of the Supreme Court in Puran Singh and Ors. v. State of Punjab , Yallawwa v. Shantavva , H.A. Malvari (dead) by LRs v. Nasiruddin Pirmohd and Ors. and Manovikas Kendra Rehabilitation and Research Institute v. Prem Prakash Lodha reported in (2005) 7 SCC 224.

4. The appellants herein, had in 1973 filed a suit for injunction against the respondent praying for the following reliefs:-

(i) The plaintiffs respectfully pray that a Decree be passed in favor of the plaintiffs and against the Defendant and the Defendant be permanently restrained from interfering with and/or interrupting or in any way meddling with the rights and titles and interests and possession and ownership of the plaintiffs over the land involved herein and situated on the southern side of 91, Friends Colony, which is triangular in shape and is located in Khasra No. 1202/1194 measuring 1 bigha 3 biswas shown in brown squares in Annexure ?A?.

(ii) Any other relief deemed fit and proper together with the costs hereof be also awarded to the plaintiffs.

5. The appellants? claimed/claim ownership rights in respect of a triangular plot on the basis of a registered sale deed dated 30th October, 1954 executed in their favor by Mrs. Bishan Dei. The respondent also claimed ownership in respect of the same triangular plot. The legal representatives of the respondent also claim ownership on the same piece of triangular plot as having inherited their right and title from the respondent on his death.

6. On the basis of the pleadings of the parties, learned Trial Court framed two issues. The first issue was whether the appellant was the owner and in possession of the property in the suit and the second issue was whether the appellant was entitled to any relief.

7. By judgment dated 25th February, 1983 after examining the evidence produced by the parties, learned Trial Court came to the conclusion that the appellants were not the owners of the said triangular plot and hence, cannot make any claim in respect thereof. The suit was accordingly dismissed.

8. The appellants filed an appeal against the said judgment and decree before the learned Additional District Judge. The said appeal was dismissed in default and an application for restoration was moved. The Appellate Court, however, dismissed the said application by Order dated 7th July, 2001. It is this Order dated 7th July, 2001 which has been impugned in the FAO. No. 470/2001, in that the present application for bringing on record legal representatives of the respondent has been filed.

9. In the case of Shankara Lingappa (supra) and Tej Kr. Jain (supra), Karnataka and Madras High Courts have held that an injunction order acts only in personam or against a person and does not run with land. Bombay High Court in Amritlal Vadilal (supra) has also taken a similar view and held that a decree for injunction does not run with the land. However, Bombay High Court had noticed that where there was a statutory provision to the contrary, a decree for injunction could be enforced against the legal representatives. Two such provisions, namely, Section 50 of the Code and Section 52 of the Transfer of Property Act, 1882 were noticed by the Bombay High Court. Karnataka High Court in its judgment in Shankara Lingappa (supra), while holding that a suit for injunction was not a judgment in rem but binds only the parties to the suit, noticed that privies could be of different types. Reference was made to Whaton?s Law Lexicon, which makes reference to six different types of privies. However, the Karnataka High Court held that broadly privies were of three kinds : privies in blood, privies in estate and privies in law. Thereafter, the court noticed that decree of permanent injunction does not prevent the party adversely affected from instituting a suit for declaration of its title and for recovery of possession. It was further held that decree of permanent injunction obviously does not bind other persons and/or the legally representatives and also ignores the factual changes that take place. It was also held that it was difficult to hold that a decree of injunction in that case would operate as res judicata to bind third parties or the transferee had any privy in the estate.

10. The position in the present case is entirely different. The appeal in question arises out of the appellate proceedings against the judgment dated 25th February, 1983 by which the learned Trial Court had specifically decided and gone into the question of ownership of the triangular piece of plot that was the subject matter of controversy, unlike the case of Shankara Lingappa (supra) wherein Karnataka High Court noticed the distinction between ownership and possession and noticed in that matter that the question did not relate to ownership. As noticed by the Supreme Court in Yallawwa V/s Shantavva, proceeding for divorce abates on death of a party as long as a decree for divorce is not passed, but the position may be different once a decree of divorce is passed. Each case therefore is required to be examined on its own facts.

11. It may also be appropriate here to refer to the distinction that has been drawn by the courts between litigations based on a document of title and on an agreement to sell. In the present case subject matter of the suit/appeal and the judgment and decree passed is based upon right, title and interest of the appellants on the basis of a sale deed in their favor. In Halsbury?s Law of England it has been held as under:-

An agreement to sell, or, as it is often stated, an executory contract of sale, is a contract pure and simple, whereas a sale, or, as it is called for distinction, an executed contract of sale, is a contract plus a conveyance. Thus, by an agreement to sell a mere jus in personam is created, by a sale a jus in rem is transferred. Where goods have been sold, and the buyer makes default in payment, the seller may sue for the contract price, but where an agreement to buy is broken, usually the seller?s only remedy is an action for unliquidated damages. Similarly, if an agreement to sell be broken by the seller, the buyer has only a personal remedy against the seller. The goods are the property of the seller and he can dispose of them.

12. In the case of R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid , the Supreme Court has held as under:-

17. The Roman lawyers recognised a right either as a jus in rem or a jus in personam. According to its literal meaning ?jus in rem? is a right in respect of a thing, a ?jus in personam? is a right against or in respect of a person. In modern legal terminology a right in rem, postulates a duty to recognise the right imposed upon all persons generally, a right in personam postulates a duty imposed upon a determinate person or class of persons. A right in rem is therefore protected against the world at large; a right in personam against determinate individuals or persons. An action to enforce a jus in personam was originally regarded as an action in personam and an action to enforce a jus in rem was regarded as an action in rem. But in course of time, actions in rem and actions in personam acquired different content. When in an action the rights and interest of the parties themselves in the subject-matter are sought to be determined, the action is in personam. The effect of such an action is therefore merely to bind the parties thereto. Where the intervention of the Court is sought for the adjudication of a right or title to property, not merely as between the parties but against all persons generally, the action is in rem. Such an action is one brought in the Admiralty Division of the High Court possessing Admiralty jurisdiction by service of process against a ship or cargo within jurisdiction. There is another sense in which an action in rem is understood. A proceeding in relation to personal status is also treated as a proceeding in rem, for the judgment of the proper court within the jurisdiction of which the parties are domiciled is by comity of nations admitted to recognition by other courts. As observed by Cheshire in his Private International Law, 6th Edn. at p. 109, ?In Roman law an action in rem was one brought in order to vindicate a jus in rem i.e. a right such as ownership available against all persons, but the only action in rem known to English law is that which lies in an Admiralty court against a particular res, namely, a ship or some other res, such as cargo, associated with the ship?: Dealing with judgments in rem and judgments in personam. Cheshire observed at p. 653, ?It (judgment in rem) has been defined as ?a judgment of a court of competent jurisdiction determining the status of a person or thing (as distinct from the particular interest in it of a party to the litigation); and such a judgment is conclusive evidence for and against all persons whether parties, privies or strangers of the matter actually decided.... A judgment in rem settles the destiny of the res itself ?and binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence?; a judgment in personam, although it may concern a res, merely determines the rights of the litigants inter se to the res. The former looks beyond the individual rights of the parties, the latter is directed solely to those rights....

13. Similarly in the case of S.M.D. Kiran Pasha v. Govt. of A.P. :

19. Analytical positivist concept of right has been differently analysed. Hohfeld writing on fundamental legal concepts as applied in judicial reasoning analyses four ideas. One of those is that a right may be a claim-right. P has a right to do X, it means to indicate that Q or everyone else has a duty to let P do X. The existence of such a duty gives P some sort of claim against Q. Claim- rights may be either in personam or in rem. A claim-right in personam co-relates to a duty of a person, while claim-rights in rem co-relate to duties in principle incumbent on everyone. A right enjoyed by one thus co-relates to a duty on the part of others.

14. By an Agreement to Sell, a jus in personam is created. However, by document of sale a jus in rem is also transferred. Therefore, on the basis of Agreement to Sell only personal remedies are available to a buyer against the seller. On the other hand, in case of a concluded contract, there is a contract plus conveyance and the purchaser not only has personal remedies but also the usual proprietory remedies. Observations of the Supreme Court, in the case of Installment Supply Ltd. v. S.T.O. relating to sale of goods which will equally apply to the present case. The Supreme Court noticed the distinction between executory contract for sale and the sale itself.

15. Under the Roman law, a distinction was made between claims based upon a dominiom and an obligation. A claim based upon an obligation of the other side was described as ?chose in action? or ?a thing in action?, a proprietory right in personam. Other claims based upon proprietory rights were described as ?choses in possession?. The origin of a ?chose in possession? was a thing or a right that was accompanied by possession. However, this distinction between ?chose in possession? and ?chose in action? has got blurred with the complex and intricate commercial transactions. For example, originally shares and equities were classified as ?choses in possession? but are now regarded as ?choses in action?. Similarly, land and chattels are now ?choses in possession? even if the owner is not in actual physical possession of the said chattel or land. Similarly, earlier a distinction was made between real and personal property. This distinction between real and personal property was based upon ?actions in rem? and ?actions in personam?. This distinction between real and personal property no longer finds favor and is regarded as arbitrary and based upon no scientific or logically distinction.

16. I may here refer to the judgment of the Supreme Court in the case of M. Veerappa (supra) wherein after examining the maxim ?actio personalis cum moritur persona? it was held that in such cases where the plaintiff dies during the pendency of the suit or an appeal, the plaintiff stands relegated to his original position before the Trial Court. However, it was held that this doctrine would not apply where injury caused to the deceased person had tangibly affected his estate or had caused an accretion to the estate of the wrongdoer. In this regard the Supreme Court approved of the observations made by the Madras High Court and the Madhya Pradesh High Court in Rustomji Devabji v. W.H. Nurse reported in AIR 1921 Mad 1 and Ratanlal v. Baboolal .

17. The maxim ?actio personalis cum moritur persona? has not been accepted in India as one of universal application. It operates in a limited class of actions ex delicto and not every action where on death of a party relief cannot be claimed or granting the same would be futile. There are also exceptions to the said maxim even in cases of personal injuries (See Section 37 of the Contract Act, 1872, Section 52 of the Transfer of Property Act, 1882 and Section 50 of the Code). Care must be taken not to extend this maxim beyond what is specified in Section 306 of the Indian Succession Act, 1923 to actions founded on an obligation, contract, debt, covenant or any other duty to be performed.

18. Section 306 of the Indian Succession Act, 1923 provides that all rights to prosecute or defend any action in favor of or against a person shall survive inspite of death of any of the parties except where cause of action are for defamation, assault or other personal injuries not causing death of a party or cases where after the death of a party, relief cannot be enjoyed or granting it would be negatory. The term ?personal injury? has been construed as adjusdem generis and therefore takes its colour and meaning from the earlier two words : 'defamation and assault'. In Margarida v. Neckintu , Section 306 of the Indian Succession Act, 1923 was examined and it was held that the term 'other personal injuries' must be construed with reference to the preceding words, namely, defamation and assault. However, it may be clarified that the term 'personal injury' need not refer only to physical injuries but also mental injuries as it happens in the case of defamation (See Mahajan v. Baboolal reported in AIR 1960 MP 666). In the case of Margarida (supra) the Bombay High Court that the legal representatives of a plaintiff are entitled to continue with a suit filed for compensation of damage caused to goods as it was a case of damage caused to the estate and not merely a personal right that perished and corroded with the death of the original plaintiff.

19. Calcutta High Court in the case of Macneill Magor Ltd v. Mouhsen Ali and Anr. has held that a suit filed that directly affected the possession and control of land would be a suit for land. While holding so, the Division Bench of Calcutta High Court relied upon Moolji Jaitha v. Khandesh Spinning and Weaving Mills Ltd. Reported in AIR 1950 FC 83, Maharaja Probinendra Mohan Tagore v. State of Maharashtra and Bhakti Kusum Sarman v. Mayapore Sreechaitanya Math . Reference may also be made to the decision of the Allahabad High Court in Krishna Behari Goyel v. Raj Mangal Pershad and Ors. . In this case, a suit for injunction was filed to restrain the defendant from interfering with possession. During the pendency of the suit the plaintiff died and application was made for bringing on record his legal representatives. It was held that the suit was not of personal nature, as the plaintiff had not claimed any personal right. The injunction sought was in respect of property and the said action did not abate on the death of the plaintiff and survived to the legal representatives who came into possession of the property upon the death. This decision of Allahabad High Court was cited before the Karnataka High Court in the case of Somnath Honappa Bennalkar v. Bhimrao Subarao Patil reported in 1974 2nd Kar 1506. The learned Judge noticed this decision and held as under:

Shri Albal placed reliance on Goel v. Raj Mangal Pershad and Ors.. In that case, it was held that on the death of the plaintiffs in a suit brought for permanent injunction, the suit does not abate on the ground that the cause of action survived to his legal representatives who came in possession of the property in dispute. The question as to whether an assignee of a compromise decree for permanent injunction is competent to execute the decree did not come up for consideration in that case. The said decision, therefore, does not assist the contention urged by Shri Albal.

20. Reference in this regard can also be made to the general principles of res judicata and Section 11 of the Code. Learned counsel for the legal representatives of the respondent was repeatedly asked to state whether the judgment dated 25th February, 1983 would operate as res judicata and bind the appellants and the legal representatives of the respondent specially in view of the decision of the Supreme Court in M. Veerappa (supra). Ld. Counsel for the legal representatives avoided a candid and straight answer and said ?yes? and ?no? in the same breath.

21. The question can also be looked into from another angle in the light of the judgment in M. Veerappa (supra). The question of title has been decided in the judgment dated 25th February, 1983 and there is an adverse finding against the appellant and in favor of the respondent. The legal representatives of the respondent are bound to take advantage of the said judgment and even claim bar on the basis of the principles of res judicata and Section 11 of the Code if the appellants file new/subsequent suit against them. The appellants do not stand relegated to their original position before they filed the suit.

22. Keeping in view the ratio of the above decisions, it is apparent that the decision of the learned Trial Court has adversely affected and has caused accretion to the estate of the respondent and therefore covered by the exception to the maxim ?actio personalis cum moritur persona?. Further the impugned judgment, subject matter of the appeal, has decided the question of title and ownership of both the appellant and the respondent under the respective sale deeds. These questions cannot be strictly called questions or dispute relating to in personam. Even if these are disputes in personam, they relate to privy of estate and therefore the right to sue survives.

23. I also do not find any merit in the contention raised by the learned Counsel appearing for the legal representatives of the respondent that the suit filed by the appellant for injunction now subject matter of appeal was/is a suit under ?torts?. What distinguishes a claim based on ?torts? from other branches of law is that the breach is normally redressible by an action for unliquidated damages. The essential remedy for torts is action for damages, though a plaintiff may claim injunction in addition to damages in cases of certain wrongs. The appellant had/has based his suit/appeal upon a sale deed and his legal rights based upon the sale deed. He had not claimed damages and was essentially interested in seeking protection of his title and ownership rights. The decision of the trial court is also based upon the title of the appellants to the triangular plot. I do not think the suit out of which the appeal arises could be categorised as one for action for recovery of unliquidated damages arising out of tortuous liability.

24. Obligation in law can arise out of a contract, delictal, quasi contracts or may be even innominate. In Salmond on Jurisprudence, 12th addition at page 453 while dealing with obligations termed as delictal, the author has examined species of civil wrongs known in legal parlance as ?law of torts?. learned author while dealing with essential elements of torts was careful to point out that four kinds of wrongs are excluded from the sphere of torts. They being, (i) crimes or criminal acts cannot be tort though the same action may be a tort or a criminal wrong; (ii) an action exclusively based upon breach of contract though a civil wrong will not be a tort though in some cases an act may be both tort and a breach of contract; (iii) breach of trust or obligations are strictly not torts in traditional sense and the principal liability in cases of breach of trust are different and (iv) lastly, the fourth exclusion has been described by Salmond on Jurisprudence as under:-

Even a civil wrong is not a tort, unless the appropriate remedy for it is an action for damages. There are several other forms of civil remedy besides this; for example, injunctions, specific restitution of property, and the payment of liquidated sums of money by way of penalty or otherwise. Any civil injury which gives rise exclusively to one of these other forms of remedy stands outside the class of torts. The obstruction of a public highway, for example, is to be classed as a civil injury, inasmuch as it may give rise to civil proceedings instituted by the Attorney General for an injunction; but although a civil injury, it is not a tort, save in those exceptional instances in which, by reason of special damage suffered by an individual, it gives rise to an action for damages at his suit.

25. There is also difference in tort affecting land and tort caused from personal injury. In case of personal injury, the action dies with the person. The remedy ceases upon the death of the doer or the sufferor. Therefore, it is to be examined whether in a given case the claims made, pleadings and the findings of the court relate to injuries suffered by a person alone and/or whether the claims, pleadings or the decisions would have any affect on property of any kind. This aspect I need not examine in view of my findings and reasons given above.

26. It is accordingly held that the right to sue survives in the present case and accordingly the application for bringing on record the legal representatives of the respondent is allowed and the legal representatives are brought on record. Application is disposed of.

FAO No. 470/2001

27. This is an appeal under Order 41 Rule 1(T) of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code, for short).

28. The appellants herein had filed an appeal before the learned Additional District Judge against the judgment and decree dated 25th February, 1983. By the said judgment and decree, the suit filed by the appellants for decree of permanent injunction was dismissed.

29. Appeal filed by the appellants before the learned Additional District Judge was dismissed in default on 18th August, 1986.

30. An application for restoration of the appeal along with application under Section 5 of the Limitation Act, 1963 for condensation of delay in filing of the application were filed and the said applications have been dismissed by the impugned order dated 7th July, 2001. Learned Additional District Judge while dismissing the two applications held that the appellants were guilty of negligence and they had failed to prove sufficient cause for condensation of delay in filing the application for restoration.

31. I have heard the learned Counsel for the appellants and the legal representatives of the respondent in this appeal.

32. It is admitted case that the appellants had filed a suit for permanent injunction way back in the year 1976 and the said suit was dismissed on merits vide judgment dated 25th February, 1983. The appellants filed an appeal against the said judgment and decree on or about 22nd March, 1983 before the learned Additional District Judge. The said appeal was fixed for arguments on 8th May, 1986 and was adjourned to 18th August, 1986. On the said date it was dismissed in default.

33. The appellants have been able to show and establish that their advocate Mr. Ran Singh Dabas had suffered a double fracture in his leg and ribs on 8th May, 1986 and thereafter was not able to attend to his court work for period for some months. Even after he stated attending and appearing in court, Mr. Ran Singh Dabas was not in a position to effectively and properly discharge his duties as an advocate. The above facts cannot be controverter and denied.

34. It is also the case of the appellants that due to mistake made by the office of Mr. Ran Singh Dabas, Advocate, the file of the appeal got mixed up with files of disposed off cases and the next date of hearing was not entered into the daily maintained in offices of advocates. Later on the lapse was noticed and the application for setting aside of the dismissal order under Order 41 Rule 19 of the Code along with another application under Section 5 of the Limitation Act, 1963 was filed by the appellants for restoration of the appeal.

35. The application for restoration of the appeal and the application for condensation of delay were signed by Mr. Ran Singh Dabas, Advocate, himself. The said advocate has blame on himself and his office for default in appearance and thereafter for the delay in filing the application of restoration. The appellants had engaged an advocate to look after their case and attend to the proceedings. The case after initial filing had remained pending in the courts for more than a decade. It was therefore natural and normal that the appellants were not personally attending and appearing in the courts on the dates of hearing. They would have under the normal circumstances presumed that their advocate was taking care of their interest and looking after the case and would inform them whenever they were required to appear.

36. It may also be relevant to state that Mr. Ran Singh Dabas had a son who was also a practicing advocate and he would have attended to and appeared in the matter on behalf of his father. There is nothing on record and Mr. Ran Singh Dabas, advocate has not stated that he had informed the appellants about his ill-heath or dismissal of the appeal in default. He would not have taken the blame on himself had he informed the appellants.

37. Getting the appeal dismissed in default was not to the advantage and/or for benefit of the appellants. They had nothing to gain by getting the appeal dismissed in default and by getting the decree and judgment dismissing their suit for permanent injunction passed by the learned Trial Court, confirmed. No doubt true that the appellants did not get in touch with their advocate for some months but this fact alone to my mind is not sufficient to justify dismissal of the application for restoration of the appeal or the application for condensation of delay, as the case had remained pending for nearly 10 years. Such defaults and lapses in these circumstances are natural on the part of the litigants. The punishment and penalty in such cases should not be disproportionate and extreme. I feel payment of costs by the appellants to the respondent would be sufficient to the justice between parties. It may be relevant to state that one of the appellant is a Doctor by profession and he would have been busy attending to and looking after the patients. It has also come on record that the other appellant had retired in 1976 and on 1st April, 1986 shifted to Hyderabad and he remained there till 31st August, 1987.

38. In view of the above, I allow the present appeal and restore the appeal pending before the learned Additional District Judge being Appeal No. 25-A/1995 titled Dr. Daljit Singh and Anr. v. Yogeshwar Prasad and condone the delay in filing of the application under Order 41 Rule 19 of the Code subject to payment of cost of Rs. 7000/-. Parties will appear before the ld. Addl. District Judge on 9th May, 2006, when date will be fixed. Costs will also be paid by the appellants to the respondent on 9th May, 2006.

39. The Appeal is accordingly disposed of.