Delhi High Court
Joginder Kumar Seth vs Kuber Media Ltd. And Ors. on 14 September, 2006
Author: R Sharma
Bench: R Sharma
JUDGMENT
Rekha Sharma, J.
1. This is an application under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 by the widow of Shri Joginder Kumar Seth for being substituted as plaintiff in place of her husband who is originally the plaintiff in the suit. The said Shri Joginder Kumar Seth has died during the pendency of the suit and therefore the application for substitution. The suit by Shri Joginder Kumar is for damages claiming a sum of Rs.25 lacs on the allegation that defendants No.1 and 5 printed while defendants No. 2 to 4 wrote/ edited and published an article under the caption Apradhik chhavi wale ko rashtriya nagric samman. This article, it is alleged, was published at the instance of defendants No. 6 to 9 and contained false and defamatory imputations which not only damaged, injured and lowered the reputation of Shri Joginder Kumar Seth but also had the effect of causing heavy losses to him in the business.
2. The short question which arises for consideration is whether on the basis of the maxim' actio personalis cum moritur persona' the suit abates on the death of Joginder Kumar or does it survive inspite of his death. It was argued by learned Counsel for the defendants that right to sue does not survive to the widow of Shri Joginder Kumar and it was so contended on the strength of Section 306 of the Indian Succession Act which reads as under:
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 proceeding existing in favor 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, 1860 (45 of 1860) 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. There can be no dispute that where the claim for damages is based solely on personal defamation or personal injury caused to the deceased plaintiff the same would come to an end on his death but in a case where it is also alleged that the defamatory imputations had the effect of causing loss to his estate or the business it will not be right to hold that even that part of the cause of action would die with the claimant. Reference in this regard may be made to a judgment of this Court reported in Rajbir Singh Sharma etc. v. Siri Ram etc 2004 (77) DRJ 87 in which reliance has been placed upon a judgment of the Apex Court reported in AIR 1988 Supreme Court 506 in M. Veerappa v. Evelyn Sequeira and Ors. In the context of the present application it will be worthwhile to refer to the following passages of the judgment:
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 'assult' but with the two preceding words 'defamation' and 'assult'. 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.
...
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 wrong-doer.
3. In the present case Joginder Kumar Seth has alleged in paragraph 6 and 12 of the plaint that besides damage to his reputation, he also suffered substantial and heavy losses in business. No doubt the defendants in the written statement have denied that the plaintiff suffered any loss in the business, but then, that is a matter which will be gone into during trial. Of course, it goes without saying that the legal representatives will have to prove that Shri Joginder Kumar infact incurred losses in the business and the loss was a direct consequence of the defamatory article published against him. For what has been noticed above, I hold that the right to sue survives in relation to the allegation that Shri Joginder Kumar Seth suffered substantial and heavy losses in the business on account of the alleged defamatory article.
4. The application is therefore allowed.
5. It is stated in the application that Shri Joginder Kumar Seth has left behind a Will in favor of Smt.Madhu Seth who is his wife to the exclusion of other legal heirs. Hence, Smt.Madhu Seth is substituted in place of Shri Joginder Kumar Seth.
6. Put up for further directions on 18.10.2006.
