A.Ganesan vs Javeed Hussain (Died)
2022 Latest Caselaw 5757 Mad

                                                                                            S.A.No.1383 of 2013

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 22.03.2022

                                                             CORAM :

                                  THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                              Second Appeal No.1383 of 2013
                                                  and M.P.No.1 of 2013

                 A.Ganesan                                                      ...    Appellant

                                                              -Vs-

                 1.Javeed Hussain (died)
                 2.The Commissioner
                   Vellore Municipality
                   Officers Line, Vellore-1.
                 3.Sharifunnisa
                 4.Showkathullah
                 5.Najmunissa
                   (R3 to R5 impleaded vide order
                    in CMP Nos.9157, 9158 and 9160
                    of 2021 dated 12.01.2022 by TKRJ)                           ...    Respondents



                 Prayer : Second Appeal under Section 100 of C.P.C., against the judgment and decree
                 dated 22.11.2013 made in A.S.No.14 of 2012 on the file of Subordinate Judge, Vellore
                 confirming the judgment and decree dated 22.12.2011 made in O.S.No.763 of 2000 on
                 the file of Principal District Munsif, Vellore.


                                  For Appellant       :   Mr.C.P.Sivamohan
                                  For Respondents     :   Mr.D.Gopal for R2
                                                          Mr.Jaseem Mudassar Ali – for RR 3 to 5




                 Page 1 of 9

https://www.mhc.tn.gov.in/judis
                                                                                             S.A.No.1383 of 2013

                                                         JUDGMENT

The plaintiff is the appellant in this Second Appeal.

The case of the plaintiff is that the first defendant was given the licence by the

second defendant Municipality to run a flower shop. The plaintiff seems to have entered

into an agreement with the second defendant on 17.02.1996, marked as Ex.A.1. As per

this agreement, the plaintiff claims to have been put in possession of the shop and he

had paid the consideration of nearly Rs.1,00,000/-. The further case of the plaintiff is

that the defendant agreed to effect the change of name for the shop by making an

application to the second defendant Municipality, in the name of the plaintiff. Till this

process is completed, the plaintiff had agreed to pay the monthly rent to the second

defendant Municipality in the name of the first defendant.

2. The grievance of the plaintiff is that the first defendant acted against the

agreement and attempted to interfere with the possession and enjoyment of the suit

property. Left with no other alternative, the suit came to be filed seeking for the relief of

permanent injunction against the first defendant.

3. The first defendant filed a written statement and took a stand that the suit

property belongs to the second defendant Municipality and the so called agreement

marked as Ex.A.1 was a created document. The first defendant virtually questioned the

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very right of the plaintiff to seek for the relief of permanent injunction and accordingly

he sought for the dismissal of the suit.

4. Both the Courts below, on considering the facts and circumstances of the case

and on appreciation of oral and documentary evidence, concurrently held against the

plaintiff and dismissed the suit. Aggrieved by the same, the plaintiff has filed this

Second Appeal before this Court.

5. One important development that had taken place during the pendency of this

Second Appeal is that the first defendant who was the first respondent in the Second

Appeal died and in his place his legal representatives have been impleaded as

respondents 3 to 5.

6. Heard Mr.C.P.Sivamohan, learned counsel for the appellant, Mr.D.Gopal,

learned counsel for the second respondent and Mr.Jaseem Mudassar Ali, learned counsel

for the respondents 3 to 5. This Court also carefully perused the materials available on

record and the findings of both the Courts below.

7. Both the Courts below concurrently held that the shop was allotted in favour of

the first defendant by the second defendant Municipality and whatever documents were

filed and relied upon by the plaintiff stood in the name of the first defendant. Both the

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Courts also found that Ex.A.1 agreement cannot be acted upon and there was absolutely

no proof to show that the plaintiff is in possession and enjoyment of the suit property.

The Courts below also took into consideration the evidence of P.W.1 and questioned the

manner in which the possession was taken over by the plaintiff. On a cumulative

consideration of the oral and documentary evidence, both the Courts held that the

plaintiff did not establish legal possession in the suit property and that he will not be

entitled for possession when the shop was allotted in the name of the first defendant by

the second defendant Municipality. The Courts below also found that the plaintiff was

claiming for possession in a property which admittedly belongs to the second respondent

Municipality.

8. The demise of the first respondent / first defendant in the Second Appeal has a

lot of significance in the present case. A careful reading of the pleadings shows that the

entire allegation about the attempt being made to interfere with the possession and

enjoyment of the suit property has been made against the first defendant in his

individual capacity. The relief of permanent injunction sought for with a specific

allegation made against a particular person who is shown as the defendant in the suit,

must confine to that person. It is under these circumstances, the legal maxim Actio

personalis moritur cum persona comes into play. The Hon'ble Supreme Court had

an occasion to deal with this issue in Prabhakara Adiga vs Gowri And Others

reported in (2017) 2 CTC Page 208. While dealing with this issue, the Hon'ble

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Supreme Court held that the Actio personalis moritur cum persona principle will

apply when the decree relates to a class of action which is individual centric and the

relief is focussed upon the wrong committed by that person. This principle will not apply

where the decree relates to a property or a right which is heritable by the legal

representatives and which is partible and it would bind the legal representatives also.

The relevant portions in the judgment are extracted hereunder.

“14. Normally personal action dies with person but this principle has application to limited kinds of causes of actions. In Girijanandini Devi v. Bijendra Narain Choudhary AIR 1967 SC 1124, this Court while considering the question whether the decree for account can be passed against the estates, also considered the maxim actio personalis moritur cum persona and observed that the postulation that personal action dies with the person, has a limited application. It operates in a limited class of actions, such as actions for damages, assault or other personal injuries not causing the death of the party and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. Death of the person liable to render the account for property received by him does not therefore affect the liability of his estate.

......

.....

26. In our considered opinion the right which had been adjudicated in the suit in the present matter and the findings which have been

https://www.mhc.tn.gov.in/judis S.A.No.1383 of 2013

recorded as basis for grant of injunction as to the disputed property which is heritable and partible would enure not only to the benefit of the legal heir of decree-holders but also would bind the legal representatives of the judgment-debtor. It is apparent from section 50 CPC that when a judgment- debtor dies before the decree has been satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular kind of decree. Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. The maxim actio personalis moritur cum persona is limited to certain class of cases as indicated by this Court in Girijanandini Devi v. Bijendra Narain Choudhary (supra) and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by LRs. of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment- debtor when the cause and injunction survives. No doubt, it is true that a decree for injunction normally does not run with the land. In the absence of statutory provisions it cannot be enforced. However, in view of the specific provisions contained in section 50 CPC, such a decree can be executed against legal representatives.”

9. In the present case, the licence was granted by the second respondent

Municipality specifically in the name of the first defendant to run the flower business in a

shop. Such a licence comes to an end on the death of the allottee and it is not a

heritable right for the legal representatives to inherit such a right of licence immediately

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on the death of the first defendant. In such circumstances, the allegation that was

made by the plaintiff should confine itself to the first defendant and on the death of the

first defendant, the cause of action also automatically dies and thereafter there is

nothing much that could be decided in the case. This will apply mostly in cases where

relief of permanent injunction is involved and it is relatable to the individual acts of a

person, which gave rise to the filing of the suit.

10. In view of the above discussion, this Court finds that the cause of action that

was pleaded in the suit as against the first defendant came to an end on the death of the

first defendant applying of the Actio personalis moritur cum persona principle.

Thereafter, it will depend upon the action taken by the second defendant Municipality for

allotment of the shop. If during this process, relief is granted in favour of the plaintiff, it

will virtually amount to injuncting the Municipality to proceed further with the allotment

of the shop. This is more so since the legal representatives of the first defendant do not

have any automatic right of being granted licence by the second defendant Municipality.

In such peculiar circumstances, this Court does not want to deal with the findings of

both the Courts below. This Second Appeal can be disposed of merely on the ground

that the cause of action no longer survives. In any event, this Court does not find any

substantial substantial question of law involved in this Second Appeal.

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11. In the result, the Second Appeal is disposed of in the above terms. However,

considering the facts and circumstances of the case, there shall be no order as to costs.

Consequently, connected miscellaneous petition is closed.

22.03.2022

Index : Yes Internet : Yes KST

To

1. The Subordinate Judge, Vellore.

2. The Principal District Munsif, Vellore.

https://www.mhc.tn.gov.in/judis S.A.No.1383 of 2013

N.ANAND VENKATESH, J.

KST

S.A.No.1383 of 2013

22.03.2022

https://www.mhc.tn.gov.in/judis