Delhi High Court
Mr. Saifuddin Choudhary vs Bartaman Limited And Anr. on 27 August, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 764/2006
% 27th August, 2015
MR. SAIFUDDIN CHOUDHARY ..... Plaintiff
Through: Ms. Indira Unninayar, Advocate with
Mr. Narayan Krishan, Advocate
versus
BARTAMAN LIMITED AND ANR. ..... Defendants
Through: Mr. Vikas Sharma, Advocate with
Mr. Hunny Veer Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
CS(OS) No. 764/2006, I.A. No.148/2015 and I.A. No.12314/2015
1. This suit is a suit for defamation filed by one Mr. Saifuddin
Choudhary against two defendants. Defendant no.1 is the company which
owns the newspaper "Bartaman" which is alleged to have published a
defamatory article. Defendant no.2 is the Editor of the newspaper published
by the defendant no.1. By this suit plaintiff claims damages of Rs.20 lacs.
CS(OS) No. 764/2006 Page 1 of 5
2. In this suit, evidence of both the parties was complete when
unfortunately the plaintiff expired on 14.09.2014. The issue before this
Court is that whether on the death of a plaintiff in a suit for recovery of
damages alleged to have been caused on account of defamation, the suit
survives i.e whether the right to sue survives and the legal heirs can be
brought on record and can they continue the suit for damages filed by the
erstwhile plaintiff.
3. I need not labour on this aspect since the issue is fully covered
by the ratio of the judgment of the Supreme Court in the case of Melepurath
Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair, (1986) 1 SCC
118. In this judgment the Supreme Court has decided that the suits which are
filed for defamation can be divided in two categories. In the first category
are those class of suits where in the suits no decree has been passed
decreeing the suit for damages. The second class is of suits where decree of
damages is passed but the other side/defendant against whom the decree has
been passed has gone up in appeal. The Supreme Court has held in the first
class where in suits no decree has been passed, the right to sue does not
survive and the suit abates in view of Section 306 of the Indian Succession
Act, 1925. In the second class where a decree of damages is passed, the
CS(OS) No. 764/2006 Page 2 of 5
Supreme Court has observed that the decree becomes part of the estate of the
deceased plaintiff and therefore death of the plaintiff during the pendency of
an appeal filed by the defendant against whom the suit is decreed will not
result in abatement. The relevant paras of this judgment are paras 6 to 9 and
these paras read 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 proceeding 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 defalcation, 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 CPC,
1906, 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
CS(OS) No. 764/2006 Page 3 of 5
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.
8. Section 306 further 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.
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 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." (underlining added)
4. The first line of para 9 of the Supreme Court judgment in
Melepurath Sankunni Ezhuthassan's case (supra) leaves no manner of
doubt on the issue inasmuch as it is clearly held in this line that where a
plaintiff dies during the pendency of a suit, the suit will stand abated.
5. Learned counsel for the legal heirs of the plaintiff did valiantly
make an attempt to distinguish the judgment of the Supreme Court in the
CS(OS) No. 764/2006 Page 4 of 5
case of Melepurath Sankunni Ezhuthassan (supra) on the ground that the
present suit has continued for a long period of time and delay in disposal of
the suit should not result in an act of the court causing prejudice, however, in
my opinion, these arguments cannot be raised in view of the categorical ratio
of the judgment of the Supreme Court in Melepurath Sankunni
Ezhuthassan's case (supra).
6. In view of the above, the suit is dismissed, inasmuch as, on the
death of the plaintiff in this suit for defamation and which suit under the law
of tort, the right to sue does not survive. I.A for bringing on record the legal
heirs of the deceased plaintiff is hence dismissed and all the other pending
applications also stand dismissed. Parties are left to bear their own costs.
AUGUST 27, 2015 VALMIKI J. MEHTA, J.
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