The maxim of actio personalis cum moritur persona has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong doer.
PUNJAB AND HARYANA HIGH COURT
( Before : Hemant Gupta, J. )
STATE OF HARYANA AND OTHERS – PETITIONERS
GURCHARAN SINGH BHUTANI – RESPONDENT
C.R. No. 3967 of 2001
Decided on : 02-12-2010
Succession Act, 1925 – Section 306
Hemant Gupta, J.(Oral) – Challenge in the present revision petition is to an order passed by the learned trial Court on 08.05.2001, whereby the legal representatives of the deceased plaintiff were ordered to be impleaded to continue with the suit.
2. The plaintiff-respondent filed a suit for declaration claiming damages during the period of his service and for mandatory injunction to make the payment of the said damages. The plaintiff died on 13.12.1999 during the pendency of the suit. His legal representatives filed an application for being impleaded to continue with the suit. The petitioners relied upon a judgment of the Hon’ble Supreme Court reported as Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, AIR 1986 Supreme Court 411, to contend that the cause of action does not survive after the death of the plaintiff, but the learned trial Court allowed the application on the ground that it is not a suit for defamation, but suit for damages.
3. The distinction drawn by the learned trial Court is not tenable in law. In a suit for defamation, the relief claimed is for damages alone. In the said judgment, relying upon Section 306 of the Succession Act, 1925, the Court found that the cause of action does not survive after the death of plaintiff. In the said case, the trial Court and the first Appellate Court granted damages, but the High Court accepted the appeal and dismissed the suit. It was during the pendency of the appeal before the Hon’ble Supreme Court, the plaintiff died and it was held that on account of suit being dismissed by the High Court, the legal representatives cannot continue with the suit.
4. In M. Veerappa v. Evelyn Sequeira and others AIR 1988 Supreme Court 506, the matter has been examined elaborately and after considering the various judgments, it was held to the following effect :
“10. The maxim ‘actio personalis cum moritur persona’ has been applied not only to those cases were a plaintiff dies during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff dies during the pendency of an appeal to the Appellate Court, be it the First Appellate Court or the Second Appellate Court against the dismissal of the suit by the Trial Court and/or the First Appellate Court as the case may be. This is on the footing that by reason of the dismissal of the suit by the Trial Court or the First Appellate Court as the case may be, the plaintiff stands relegated to his original position before the Trial Court. Vide the decisions in Punjab Singh v. Ramautar Singh, (AIR 1920 Patna 841), Irulappa v. Madhava (AIR 1951 Madras 733), Maniramlala v. Mt. Chattibai, ( AIR 1937 Nagpur 216), Baboolal v. Ram Lal ( AIR 1952 Nagpur 408) and Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, AIR 1986 Supreme Court 411. In Palanjappa Chettiar v. Rajah of Ramnad (AIR 1926 Madras 243), and Motilal v. Harnarayan, AIR 1923 Bombay 408, it was held that a suit or an action which has abated cannot be continued thereafter even for the limited purpose of recovering the costs suffered by the injured party. The maxim of actio personalis cum moritur persona has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong doer vide Rustomji Dorabji v. W.H. Nurse (AIR 1921 Madras 1) and Ratanlal v. Baboolal ( AIR 1960 Madhya Pradesh 200) as well as in those cases where a suit for damages for defamation, assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff because in such a case the cause of action becomes merged in the decree and the decretal debt forms part of the plaintiff’s estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend (vide Gopal v. Ramchandra (1902) ILR 26 Bombay 597) and Melepurath Sankunni v. Thekittil (supra).”
5. Following the aforesaid judgment, this Court in a judgment reported as H.S.Gambhir and others v. Vam Dev Sharda and others 1990 (2) PLR 436 and a Division Bench of Delhi High Court in a judgment reported as E.I.Ltd. and another v. Klaus Mittelbachert (deceased) through LRs., AIR 2002 Delhi 124, dismissed the suit filed by the plaintiff for damages.
6. In view of the above, the order passed by the learned trial Court is not sustainable. The same is set aside. The suit is dismissed as abated on account of death of the plaintiff.
(2011) 1 LandLR 181 : (2011) 1 LawHerald 88 : (2010) 24 RCR(Civil) 50
Baboolal Vs. Ram Lal, (1952) AIR (Bom) 408
Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair, (1986) AIR (SC) 411
H.S. Gambhir and others Vs. Vam Dev Sharda and others, (1990) 2 PLR 436
Rustomji Dorabji Vs. W.H. Nurse, (1921) AIR (Mad) 1
Ratanlal Vs. Baboolal, (1960) AIR (MP) 200
Punjab Singh Vs. Ramautar Singh, (1920) AIR (Patna) 841
Palanjappa Chettiar Vs. Rajah of Ramnad, (1926) AIR (Mad) 243
Motilal Vs. Harnarayan, (1923) AIR (Bom) 408
M. Veerappa Vs. Evelyn Sequeira and others, (1988) AIR (SC) 506
Irulappa Vs. Madhava, (1951) AIR (Mad) 733
Gopal Vs. Ramchandra, (1902) ILR 26 Bombay 597
E.I.Ltd. and another Vs. Klaus Mittelbachert deceased through LRs., (2002) AIR (Delhi) 124
Maniramlala Vs. Mt. Chattibai, (1937) AIR (Bom) 216
Counsel for Appearing Parties
Mr. Aman Chaudhary, Additional Advocate General, Haryana, for the Petitioner; Mr. H.N. Mehtani, Advocate, for the Respondent