P.Murugesan vs C.Kadarkarai (Died)
2021 Latest Caselaw 767 Mad

                                                                                S.A.No.1243 of 1999

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            DATED : 11.01.2021

                                                   CORAM

                           THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                            S.A.No.1243 of 1999

                P.Murugesan                                       : Appellant

                                                     Vs.

                1.C.Kadarkarai (Died)
                2.A.Kadiresan
                3.K.Balamurugan (Died)
                4.K.Vijayakumar
                5.K.Selvakumar
                6.K.Senthilkumar
                7.B.Sujatha
                8.M.Abirama Sundari                                : Respondents

                (R3 to R6 were brought on record as legal representatives of the deceased first
                respondent, vide order of this Court dated 11.11.2011 in C.M.P.Nos.14616 and
                14617 of 1999.
                R7 and R8 were brought on record as legal representatives of the deceased third
                respondent, vide order of this Court, dated 25.02.2012 in M.P.(MD)Nos.1 to 3
                of 2012.)

                PRAYER:- Second Appeal filed under Section 100 of Code of Civil Procedure,
                to set aside the judgment and decree in A.S.No.154 of 1996 on the file of the
                Additional District Court cum Chief Judicial Magistrate Court, Virudhunagar at
                Srivilliputhur, dated 09.10.1997 confirming the judgment and decree in O.S.No.
                123 of 1990 on the file of the Additional Subordinate Court, Srivilliputhur,
                dated 09.07.1996.


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                          For Appellant                   :Mr.A.Sivaji
                          R1 and R3                       :Died
                          For R2                          :No Appearance
                          For R4 to R8                    :Mr.N.Dilip Kumar
                                                          ****

                                                      JUDGMENT

Aggrieved over the concurrent findings of the Courts below, the plaintiff

has filed the present second appeal. The suit in O.S.No.123 of 1990 was filed

claiming damages for defamation.

2.The parties are arrived at their own ranking, as before the Trial Court.

3.The brief facts leading to the filing of the present appeal are as follows:

3.1.The plaintiff hails from a respectful family and was working as

Central Excise Inspector in the Office of the Central Excise Department,

Rajapalayam. The plaintiff has also earned very good reputation in his Office.

The first defendant has carried on a business in the name and style of “Lally

Offset Printers”. The second defendant is one of the partners in “Vasantha

Offset Printers”. Both the first and second defendants are close business

friends. The plaintiff during his tenure at Sivakasi, had registered several cases

against the defendants in respect of their illegal importation of certain goods in

connection with their business. The plaintiff as well as the defendants also

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S.A.No.1243 of 1999

belong to Nadar community.

3.2.As the plaintiff had taken action against the community of the

defendants and causing nuisance to his own community people, the defendants

gave a false statement, dated 16.01.1986 before the Superintendent of Central

Excises Department, Madurai, implicating the plaintiff along with three other

Inspectors for the alleged threat, which culminated into departmental

proceedings against the plaintiff. Pursuant to the same, charges were framed

against the plaintiff. In the enquiry, the defendants have reiterated their

statements before the Enquiry Officer. Though the plaintiff was exonerated

from the charges by the Enquiry Officer, the Deputy Commissioner, Central

Excise Department, has imposed the punishment of withholding one increment.

In the appeal, the same was set aside. Hence, it is the contention of the plaintiff

that the statement of the defendants is false, which has been made deliberately

and due to which, the plaintiff suffered mental agony and hence, he prayed for

damages.

3.3.The defendants have filed their written statement disputed the

allegations made in the plaint. In the written statement, the defendants have

stated that they had never given a false statement with an intention to take

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S.A.No.1243 of 1999

vengeance against the plaintiff. The allegation that the false complaint has been

given by the defendants has also been denied.

3.4.Based on the above, the following issues were framed by the trial

Court for consideration:

“(1)Whether the defendants have given a false statement against the Central Excise Inspectors on 16.01.1986?

(2)Whether the plaintiff has suffered mental agony and has got defamed ?

(3)Whether the suit is maintainable?

(4)Whether the plaintiff is entitled to claim for damages?”

3.5.On the side of the plaintiff, PW-1 to PW-4 were examined and Ex-A1

to Ex-A10 were marked. On the side of the defendants, DW-1 and DW-2 were

examined and Ex-B1 to Ex-B19 were marked.

3.6.The trial Court, after appreciation of entire evidence on record, found

that the plaintiff is not entitled to get any claim for damage and dismissed the

suit. Aggrieved by the judgment and decree of the trial Court, the plaintiff

preferred an appeal in A.S.No.154 of 1996 before the Additional District-cum-

Chief Judicial Magistrate Court, Srivilliputhur. The first appellate Court has

also confirmed the findings of the trial Court. Aggrieved by the same, the http://www.judis.nic.in

S.A.No.1243 of 1999

present second appeal is filed.

4.While admitting the second appeal, the following substantial question

of law was framed:

“Whether the respondents 4 to 8, the legal representatives of

deceased first respondent, are liable and if so what extent?”

5.During pendency of this appeal, the first defendant died and therefore,

his legal representatives were brought on record as respondents 3 to 8.

6.The learned Counsel for the appellant would submit that though the

first defendant died and his legal representatives were brought on record, the

second respondent/second defendant is still alive. It is his further contention

that the entire evidence would clearly indicate that the statements have been

given falsely by the defendants. The learned Counsel for the appellant would

also submit that such a false statement lead to initiation of disciplinary

proceedings, which, in fact, brought the reputation of the plaintiff down in the

eye of public. Therefore, the learned Counsel for the appellant would submit

that the appellant is entitled to claim damages. The learned Counsel for the

appellant would also submit that the petition to bring on record the legal

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S.A.No.1243 of 1999

representatives of the deceased first defendant has also been allowed by this

Court, which has not been challenged by the defendants. Hence, the learned

Counsel for the appellant would submit that it cannot be stated by the

respondents that the cause of action died with the first respondent/first

defendant himself. Hence, he would submit that the respondents are entitled to

pay damages.

7.Whereas, the learned Counsel for respondents 4 to 8 would submit that

the claim of damages are personal in nature and the plaintiff is claiming

damages against the first defendant, who already died and that his legal

representatives cannot be brought on record. It is his further contention that

even though they are brought on record, they are not liable to pay any damages.

The learned Counsel would further submit that the entire evidence adduced on

the side of the plaintiff would clearly indicate that the suit is liable to be

dismissed. He would also submit that the Courts below have rightly concluded

that the plaintiff is not entitled to claim damages. Hence, he prays for dismissal

of this appeal.

8.In continuation of the substantial question of law framed already, the

following substantial question of law is also framed for consideration:

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S.A.No.1243 of 1999

“Whether initiation of disciplinary proceedings on the basis of the complaint given by the defendants, is sufficient to claim damages?”

9.On perusal of the entire evidence on record, it is seen that the suit is one

for claiming damages merely on the ground that the defendants, being traders,

had given a false statement against him for conducting search in the business

premises of the defendants, while the plaintiff was working as Central Excise

Inspector at Srivilliputhur. It is the prime contention of the plaintiff that in view

of the false statement given by the defendants against the plaintiff and three

others before the higher officials of the plaintiff, on 16.01.1986, departmental

proceedings were initiated against the plaintiff, however, he was exonerated

from the charges by the Enquiry Officer, and therefore, he is entitled for

compensation.

10.The Courts below have analyzed the entire evidence adduced in this

regard and found that the plaintiff is not entitled to for any damages. It is

evident from the materials that based on the certain allegations levelled by the

defendants with regard to the conduct of the Central Excise Officers in entering

into the premises and seizing materials, departmental proceedings were initiated

against the plaintiff and other Central Excise Officers. It is also seen that the

departmental proceedings were initiated not only against the plaintiff, but, also http://www.judis.nic.in

S.A.No.1243 of 1999

against the three other Central Excise Inspectors. It is the contention of the

appellant that he was falsely implicated in the complaint given by the

defendants. It is seen from evidence that in the complaint given by the

defendants, not only the appellant, but, three other Central Excise officers were

also implicated. This Court is unable to find any merit in the contention of the

plaintiff that he was falsely implicated. Merely on the basis that the plaintiff

was exonerated from the charges, the same cannot be construed to mean that the

statement of the defendants has been given maliciously or deliberately.

11.When the persons are exonerated from the departmental proceedings,

merely because the names have been cited by the defendants as to the nature of

the misconduct of the Government servants, while conducting search in the

business premises, it cannot said that the such omissions or inconsistency in the

statement and the complaint, there is malicious prosecution. Though in the

enquiry, the plaintiff was exonerated from the charges, the disciplinary authority

has imposed the punishment of withholding the increment. Only in the appeal

filed by the plaintiff, the appeal was allowed. Therefore, merely on the basis of

the exoneration by the appellate authority, it cannot be concluded that the very

statement given by the defendants before the department is malicious in nature.

The departmental proceedings and its final decision is based on the probabilities

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S.A.No.1243 of 1999

and discretion of the higher officials. Merely because, the benefit of doubt was

given by the appellate authority in favour of the plaintiff, it cannot be stated that

the entire complaint has been given was malicious to tarnish the image of the

plaintiff. In such view of the matter, this Court is of the view that the Courts

below have rightly concluded that the plaintiff is not entitled to claim any

damages.

12.The Honourable Supreme Court in the case of Melepurath Sankunni

Ezhuthassan vs Thekittil Geopalankutty Nair, reported in (1986) SCC 118, has

held as follows:

“5.Under the common Law, the general rule was that death of either party extinguished any cause of action in tort by one against the other. This was expressed by the maxim Action personalis moritur cum persona" ( A personal action dies with the person ). However, by the Law Reform (Miscellaneous Provision) Act, 1934, all causes of action vested in a person survive for the benefit of his estate except causes of action for defamation or seduction which abate on the death of such person. As the Law Reform (Miscellaneous Provisions) Act, 1970, abolished the right of action for seduction of a spouse or a child from January 1, 1971, the only cause of action which would abate in England on the death of a person suing would be now a cause of action for defamation.”

13.It is also noted that the suit has been dismissed by the trial Court and

the first appellate Court has also dismissed the appeal preferred by the plaintiff

and the present second appeal has been filed against the concurrent findings of

the Courts below. During the pendency of the appeal, the first defendant died http://www.judis.nic.in

S.A.No.1243 of 1999

and his legal representatives were brought on record. It is to be noted that only

when the suit is decreed for damages for defamation and even after the said

decree, the plaintiff died, his legal representatives has to be brought on record

for execution of decree by the defendants. Similar situation would arise, if the

defendant died, his legal representatives can be brought on record to execute the

decree from the estate left by the defendant. Whereas, in this case, no decree

whatsoever is passed in favour of the plaintiff.

14.In view of the above, there is no merit in the instant Second Appeal.

Accordingly, the substantial questions of law are answered against the

appellant. The second appeal is dismissed and the judgment and decree of the

Courts below are confirmed. However, there shall be no order as to costs.

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                cmr

                To

1.The Additional District-cum-Chief Judicial Magistrate, Virudhunagar at Srivilliputhur.

2.The Additional Subordinate Judge, Srivilliputhur.

3.The Section Officer, Vernacular Record Section, Madurai Bench of Madras High Court, Madurai.

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S.A.No.1243 of 1999

N.SATHISH KUMAR J.

cmr

Judgment made in S.A.No.1243 of 1999

11.01.2021

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