A single judge bench of the Madras High Court comprising of Justice V. Bhavani Subbaroyan upheld the trial court judgment where the respondents originally filed objections to the memo for furnishing legal heir particulars of the demised 3rd respondent, which was rejected by the Learned Sub Judge at Mettupalayam.
The court held that the present suit against the 3rd respondent was entirely based on torts and thus the suit abated on the death of the 3rd defendant. Further, 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.
Brief Facts:
The 1st petitioner herein namely R. Badrammal and her husband N. Rangasamy (deceased) had filed a suit in O.S.No.55 of 2018 against the respondents for direction to direct the respondents / defendants to pay a sum of Rs.1,50,000/- as damages to the plaintiffs jointly or severally and to reconstruct the wrongful demolition of the building structure inside the suit properties. The suit was also for restraining the defendants 4 to 8 from releasing the retirement monitory benefits of the 1st defendant worth about Rs.1,50,000/- till the disposal of the suit.
During the pendency of the above suit, the said Rangasamy and the 3rd respondent herein had died and therefore, the petitioners who are the legal heirs of deceased Rangasamy filed a memo for furnishing legal heir particulars of the demised 3rd respondent. The respondents/defendants had filed objections to the said memo, and on the contentions raised in the said objection memo, the Learned Sub Judge at Mettupalayam had passed an order by rejecting the plea of furnishing legal heir particulars of the 3rd defendant.
Challenging the order of rejection, the petitioners filed I.A.No.4 of 2020 under Section 114 and Order 47 of CPC read with Section 151 of CPC, to review the order in memo filed by the petitioners. The said application was dismissed by the Learned Sub Judge at Mettupalayam. Hence, this C.R.P has been filed.
Contentions of the Petitioner:
The learned counsel for the petitioner submitted that the Trial Court has failed to appreciate the fact that the demolition of the petitioners' house by the respondents was done without notice being issued to the petitioners according to law, thereby proving that the act of the respondents was done with malice and violating the due process of law. He also submitted that the Trial Court has failed to take into consideration the fact that a private complaint in C.C.No.461/2015 is pending adjudication before the Judicial Magistrate of Mettupalayam against the respondents which was taken on file considering the illegal demolition done by the respondents.
Further, the Trial Court has failed to ascertain that the petitioners have a legal right to sue the legal heirs of the deceased 3rd respondent and that the legal heirs of the deceased 3rd respondent are liable to pay compensation to the petitioners. Moreover, he submitted that the Trial Court has prematurely decided in passing an order that the act of the respondent would come under official capacity without conducting detailed trial to decide upon the same.
Contentions of the Respondent:
The Learned Government Advocate appearing for the respondents submitted that the petitioners without following the procedures under Order 22 Rule 4 of CPC filed a memo for impleading the legal heirs of the 3rd defendant, which is not acceptable neither in law nor the facts of the case. Further, he submitted that the 3rd defendant died in the year 2017. After the lapse of 2 years, the petitioners filed this memo for impleading legal heirs of the 3rd defendant without filing a necessary petition for condoning the delay in filing the above impleading legal heirs petition under Article 120 of the Limitation Act.
Observations of the Court:
The court observed that the present suit against the 3rd respondent was entirely based on torts and thus the suit abated on the death of the 3rd defendant. In this context, the court relied on the judgment of the Hon'ble Apex Court in M. Veerappa vs Evelyn Sequeira & Ors, [AIR 1988 SC 506], wherein, it is held 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.
On perusal of the records, the court acknowledged that the respondents are government officials and they have done their official duty only, as revenue authorities and there is no malafide action on the part of them, as stated by the petitioners. Admittedly, the suit was already abated as against the 3rd respondent. Since the alleged act of respondents 1 to 3 was done in the official capacity, the court held that the petitioners cannot be permitted to sue against the legal heirs of the 3rd respondent.
Decision of the Court:
The court upheld the order of the trial court and dismissed the civil revision petition.
Case Title: R. Badrammal and others vs R. Krishnaswamy and others
Coram: Mrs. Justice V. Bhavani Subbaroyan
Case No.: C.R.P.No.2049 of 2021 and C.M.P.No.15589 of 2021
Advocate for the Petitioner: Mr. C.P. Sivamohan
Advocate for the Respondents: Mr. C. Jayaprakash
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