ANDHRA PRADESH HIGH COURT
( Before : I. Venkatanarayana, J )
SUBHADRAMMA AND OTHERS — Appellant
M. RAMACHANDRA REDDY — Respondent
C.R.P. No. 418 of 1997
Decided on : 30-06-2000
Civil Procedure Code, 1908 (CPC) – Order 22 Rule 11, Order 22 Rule 3
Constitution of India, 1950 – Article 21
Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair, (1986) ACJ 440 : AIR 1986 SC 411 : (1985) 2 SCALE 1098 : (1986) 1 SCC 118 : (1985) 3 SCR 805 Supp : (1986) 1 UJ 131
Counsel for Appearing Parties
M. Chandrasekhar Reddy, for the Appellant; K.V. Reddy, for the Respondent
I. Venkatanarayana, J.—Revision petitioners are the legal representatives of late M.S. Narayana Reddy, who was the defendant in O.S. 291/1985 on the file of the Principal District Munsif, Punganur. The trial Court decreed the suit filed by the plaintiff for damages against late Narayana Reddy.
2. Aggrieved by the judgment and decree of the trial Court, late Narayana Reddy filed A.S.No. 74/1994 on the file of the Additional District Judge, Madanapalle. During the pendency of the appeal, the appellant Narayana Reddy died. Legal representatives of Narayana Reddy filed a petition in I.A.No. 45/1996 under Order 22 Rule 3 of the CPC seeking to come on record as the legal representatives of the deceased-sole defendant. The petitioners contended that their father was the appellant in A.S. 74/1994 and he died on 22-9-1995 leaving behind the proposed legal heirs. It is their contention that they succeeded to the properties of the deceased and that they are necessary and proper parties to prosecute the appeal as the legal heirs of the deceased appellant-Narayana Reddy.
3. The respondent resisted the petition and contended that the suit was filed for damages against the deceased appellant in his personal capacity and a decree was obtained in the lower Court. In view of the death of the appellant, the appeal abated and the cause of action does not survive. The lower appellate Court relied on the maxim ‘Actio personalis moritur cum persona’ and held that the right to sue does not survive and dismissed the petition.
4. Aggrieved by the order of the lower appellate Court, the legal representatives of the deceased Narayana Reddy filed the present revision petition.
5. Shri M. Chandrasekhar Reddy, learned Counsel for the petitioners contended that the lower appellate Court ignored the crucial fact that the appellant Narayana Reddy died after filing the appeal and that his legal representatives have a right to come on record and prosecute the appeal to prove that their father was not guilty of malicious prosecution. Mr. K.V. Reddy, learned Counsel for the respondent supported the order of the trial Court contending that the cause of action does not survive and submitted that late Narayana Reddy deposited the decretal amount also and hence the petition to come on record is not maintainable.
6. The short question that falls for consideration of this Court is whether the right to sue survives and, if so, whether the petitioners can maintain the petition under Order 22 Rule 3 CPC?.
7. Order 22 Rule 3 CPC reads as under:
“Rule 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff – (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub- rule (1), the suit shall abate so far as the deceased plaintiff is concerned and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”
8. It is pertinent to note that the defendant-judgment-debtor died after instituting the appeal. Since he died during the pendency of the appeal, it has to be examined whether the right to sue survives.
9. The Apex Court had an occasion to consider this question under Order 22 Rules 1 and 11 of the CPC in Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair, and held that where the appeal is pending, the legal representatives are entitled to come on record and prosecute the proceedings. In Para 7 of the decision, the Supreme Court has held as follows:
“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 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 question of benefit or detriment to the estate of the plaintiff-respondent which his legal representative is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff.”
10. The next aspect which I would like to deal with is the right of the petitioners-legal representatives to prosecute the appeal to establish that their late father was not guilty of malicious prosecution. The right to dignity and fair treatment with the citizen under Article 21 of the Constitution of India is well recognised. Such a right is available both for living as well as dead persons. Any false imputation amounts to defamation whether the concerned person is alive or dead. To defame a dead person is not a tort, but if such statement though expressly referring to the deceased reflects upon the dead person and affects his reputation, the legal representatives can maintain the action. (See: AIADMK, Madras v. K. Govindan Kutty (1996 (2) ALD 139).
11. The petitioners-legal representatives in this case have a right to prosecute the appeal for the purpose of establishing that their father was not guilty of malicious prosecution. Even in that view of the matter, I hold that they are entitled to maintain the petition under Order 22 Rules 3 and 11 CPC.
12. For the aforementioned reasons, the order of the learned Additional District Judge, Madanapalle, in I.A.No. 45/1996 in A.S.No. 74/1994, dated 24-7-1996 is set aside and I.A. 45/1996 is allowed. The learned Additional District Judge, Madanapalle is directed to dispose of the appeal A.S. 74/1994 within six months from the date of receipt of this Order. The revision petition is allowed. No order as to costs.
(2000) 6 ALT 779 : (2001) 2 CivCC 37 : (2001) 4 RCR(Civil) 150
Categories: Defamation Suit