Delhi High Court
Natho Devi & Ors vs Nand Kishore on 30 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th August, 2012
+ CM (M) 1070/2011
NATHO DEVI & ORS ..... Petitioner
Through: Mr. K.R. Chawla, Adv.
versus
NAND KISHORE ..... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. None appears on behalf of the Respondent despite pass over.
2. A suit for damages (for Rs.10 lacs) for malicious prosecution was filed by
the Respondent (before the District Judge) against Yad Ram (his
deceased father-in-law), on the ground that a false case under Section 302
IPC was got registered by him (Yad Ram) against the Respondent.
3. Respondent No.1 expired on 08.11.2010. An Application under Order
XXII Rule 1 & 4 read with Section 151 CPC of the Code of Civil
Procedure (the Code) was moved by the Respondent. Without issuing its
notice to the proposed LRs, the application was allowed and thereafter a
notice was ordered to be issued to the LRs by an order dated 16.07.2011.
4. On 10.08.2011, the legal representatives of the deceased (Yad Ram)
through their counsel wanted to file a reply to the Application under
Order XXII Rule 4 of the Code. The said prayer was rejected on the
ground that the application had already been disposed of.
5. Thus, apart from the procedural illegality committed by the learned
Additional District Judge (ADJ) the law is well settled that the legal heirs
would be entitled to be substituted in place of the deceased Plaintiff or
Defendant only when the right to sue survives. It is well settled that in
personal action, that is, in suits for defamation, assault, etc. the right to
sue does not survive and thus the legal heirs have no right or liability of
substitution.
6. In RM P. KP. AR. Arunachalam Chettiar v. V.S. @ S.V.V. Subramanian
Chettiar (dead) & Anr. AIR 1958 Mad. 142, a Division Bench of Madras
High Court held that in a suit for malicious prosecution the right to sue
did not survive. Para 2 of the report is extracted hereunder:-
"(2) It is now well established that the maxim action personalis
moritur cum persona is part of the law of this country except in so
far as it has been modified by statute. In Rustomji Dorabji v.
Narse, ILR 44 Mad 357 : (AIR 1921 Mad 1) (A), a Full Bench of
this Court ruled that in a suit for malicious prosecution, when a
defendant dies, the right to sue does not survive. The principle of
this Full Bench ruling will certainly apply to the present case as it
is a suit for damages for malicious arrest. So far as we are award,
this decision of our Full Bench has never been doubted in this
Court; nor has Mr. Kesava Aiyanagar, learned counsel for the
appellant, been able to cite any decision of any other High Court
or of a higher Court in which doubt has been expressed as to the
applicability of this doctrine to India. Page C.J., who was
apparently personally inclined to an opposite view said in D.K.
Cassim and Sons v. Sara Bibi, ILR 13 Rang 385; (AIR 1936 Rang
17 (B)."
7. In Puran Singh & Ors. v. State of Punjab, (1996) 2 SCC 205, the
Supreme Court held that a personal action such as action for damages for
defamation, assault or personal injuries not causing the death of the party,
and other action the death of the party the granting of the relief would be
nugatory dies with the death of the person. Para 4 of the report is
extracted hereunder:-
"4. A personal action dies with the death of the person on the
maxim actio personalis moritur cum persona. But this operates
only in a limited class of actions ex delicto, such as action for
damages for defamation, assault or other personal injuries not
causing the death of the party, and in other actions where after the
death of the party the granting of the relief would be nugatory.
(Girja Nandini Devi v. Bijendra Narain Choudhury AIR 1967 SC
1124). But there are other cases where the right to sue survives in
spite of the death of the person against whom the proceeding had
been initiated and such right continues to exist against the legal
representative of the deceased who was a party to the proceeding.
Order 22 of the Code deals with this aspect of the matter. Rule 1 of
Order 22 says that the death of a plaintiff or defendant shall not
cause the suit to abate if the right to sue survives. That is why
whenever a party to a suit dies, the first question which is to be
decided is as to whether the right to sue survives or not. If the right
is held to be a personal right which is extinguished with the death
of the person concerned and does not devolve on the legal
representatives or successors, then it is an end of the suit. Such
suit, therefore, cannot be continued. But if the right to sue survives
against the legal representative of the original defendant, then
procedures have been prescribed in Order 22 to bring the legal
representative on record within the time prescribed. In view of
Rule 4 of Order 22 where one of two or more defendants dies and
the right to sue does not survive against the surviving defendant or
defendants alone, or a sole defendant dies and the right to sue
survives, the Court, on an application being made in that behalf,
shall cause the legal representatives of the deceased defendant to
be made a party and shall proceed with the suit. If within the time
prescribed by Article 120 of the Limitation Act, 1963 no
application is made under sub-rule (1) of Rule 4, the suit shall
abate as against the deceased defendant. This rule is based not
only on the sound principle that a suit cannot proceed against a
dead person, but also on the principle of natural justice that if the
original defendant is dead, then no decree can be passed against
him so as to bind his legal representative without affording an
opportunity to them to contest the claim of the plaintiff. Rule 9 of
Order 22 of the Code prescribes the procedure for setting aside
abatement."
8. In M. Veerappa vs Evelyn Sequeira & Ors, AIR 1988 SC 506, the
Supreme Court laid down that in any action for damages if the claim is
found entirely on torts, the suit would abate and it would survive only if
the claim is based entirely on contract.
9. In the instant case, the action is based only on torts. In Melepurath
Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, AIR 1986 SC 411,
the Supreme Court made a distinction where a decree is passed in a suit
for damages on account of defamation and where an Appeal is filed
where a suit is dismissed. It was held that if the Plaintiff on dismissal of
the suit files Appeal and the Respondent/defendant dies, the Appeal
would abate on the death of the Plaintiff. But where a suit had been
decreed and a party dies during pendency of the Appeal the right to sue
would survive.
10. Thus, it stands settled that the right to sue does not survive against the
Petitioners herein.
11. The learned ADJ committed illegality in ordering substitution of the
Petitioners in place of deceased Yad Ram and that too even without
issuing notice to them.
12. The impugned order dated 16.07.2011 is set aside. The Petition is
allowed and the Suit stands dismissed.
(G.P. MITTAL)
JUDGE
AUGUST 30, 2012/vk
