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PETITIONER: MELEPURATH SANKUNNI EZHUTHASSAN

       Vs.

RESPONDENT: THEKITTIL GOPALANKUTTY NAIR

DATE OF JUDGMENT29/11/1985

BENCH: MADON, D.P. BENCH: MADON, D.P. OZA, G.L. (J)

CITATION:  1986 AIR  411            1985 SCR  Supl. (3) 805  1986 SCC  (1) 118        1985 SCALE  (2)1098  CITATOR INFO :  RF         1988 SC 506  (9TO12)

ACT:      Abatement of  Appeal - Maxim  Action Personalis Moritur cum persona"  (A personal  action  dies  with  the  person), applicability of  - Right  to sue/prosecute  appeal  whether survives on  the death of the appellant in an appeal arising out of  a defamation  case Right  to be represented by Legal Representatives, application  maintainability of  - Code  of Civil Procedure,  1908 order  XXII Rules  1 and 11 read with section 306  of the Indian Succession Act, 1925 and Order XV Rules 32 and 33 of the Supreme Court Rules, 1966.

HEADNOTE:      The  appellant  filed  a  suit  in  the  Court  of  the Subordinate  Judge,   Ottappalam  against   the   Respondent claiming a  sum of  Rs. 5500  as damages for defamation. The Trial Court  dismissed the  suit with costs. In First appeal preferred by  the appellant,  the District Judge allowed the appeal, decreed  the suit and awarded Rs. 500 as damages and proportionate costs both of the said appeal and suit. In the Second appeal  filed by  the Respondent,  the High  Court of Kerala  reversed  the  decree  of  the  District  Judge  and dismissed the  cross  objections  filed  by  the  appellant. Against  the  said  judgment  with  no  order  as  to  costs throughout Special Leave was granted by the Supreme Court in 1972 and  during the  pendency  of  the  Civil  Appeal,  the appellant died  leaving behind  him surviving  two grandsons and two  grand daughters.  On November  4, 1985 one grandson and one  grand-daughter moved  two applications-one to bring the  grand-sons  and  grand-daughters  on  record  as  Legal Representatives and the other to condone the delay in filing the said  application and  to set aside the abatement of the Appeal.      Dismissing the petitions and the appeal, the Court ^      HELD: 1.1 Reading section 306 along with Rules 1 and 11 of Order  XXII of  the Code  of Civil Procedure, 1908, it is clear that a cause of action for defamation does not survive the death of the appellant. [810 C-D] 806      1.2 Where  a suit  for defamation  is dismissed and the

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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  the 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. [810 D-F]      1.3 Though  section 306  speaks only  of executors  and administrators,  on   principle  the   same  position   must necessarily   prevail   in   the   case   of   other   legal representatives, for  such legal  representatives cannot  in law be  in better  or  worse  position  than  executors  and administrators   and   what   applies   to   executors   and administrators will  apply to  other  legal  representatives also. [810 G-H]      2.1 Rule 1 of Order XXII of the Code provides that "the death of  a plaintiff  or defendant shall not cause the suit to abate  if the  right to sue survives.  Thus, if the right to sue does not survive, the suit will abate on the death of the plaintiff.  Under Rule  3 of  Order XXII,  where a  sole plaintiff dies  and the  right to sue survives, the court on an application  made in  that behalf  will cause  the  legal representative of  the deceased plaintiff to be made a party and shall proceed with the suit. If, however, no application in that  behalf is  made within  the time prescribed by law, the suit  will abate.  Under Rule  9(2), the  court may  set aside the  abatement of  the suit  on the application of the person claiming  to  be  the  legal  representative  of  the deceased plaintiff  if the  proves that  he was prevented by any sufficient  cause from  continuing  the  suit.  Rule  11 further provides  the applicability of Order XXII to appeals as well  substituting the words "plaintiff",  defendant" and suit by  "appellant" "respondent" and "appeal" respectively. Thus, reading  Rule 1 and Rule 11 of Order XXII together, in the case  of an  appeal Rule  1 would  read "the death of an appellant or  respondent shall not cause the appeal to abate if the right to sue survives." Thus, where there is only one appellant and be 807 dies during  the pendency of the appeal, if his right to sue does not  survive, the  appeal  will  abate  and  his  legal representative   will have  no right  to be  brought on  the record to continue the appeal. [808 F-; 809 A-D]      2.2 In  the present  case, if  the Appellant’s right to sue had  survived on  his death,  his right to prosecute the present appeal  would also  survive, but if the right to sue would not have survived on his death, this appeal also would not have survived and would abate. [809 D-E]      2.3 The  position, therefore, is that had the appellant died during  the pendency  of his  suit, the suit would have abated. Had  be died during the pendency of the appeal filed by him  in the District Court, the appeal would have equally abated because  his suit  had been  dismissed by  the  Trial Court. Had  he, however,  died during  the pendency  of  the second appeal filed by the respondent in the High Court, the appeal would not have abated because he had succeeded in the

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first appeal  and his suit had been decreed. As however, the High Court allowed the second appeal and dismissed the suit, the present  appeal by Special Leave must abate because what the appellant  was seeking in this appeal was to enforce his right to  sue for damages for defamation. This right did not survive  his   death  and   accordingly  the  appeal  abated automatically on  his death  and his  legal  representatives acquired no  right in law to be brought on the record in his place and stead.[811 A-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No. 91 of 1972.      From the  Judgment and  Order dated  12.2.1971  of  the Kerala High Court in S.A. No. 21 of 1966.      A.S. Nambiar for the Appellant.      T.T. Kunhitkanan for the Respondent.      The Judgment of the Court was delivered by      MADON, J.  On May  16, 1983,  the Appellant died during the pendency of this Appeal by Special Leave granted by this Court, leaving  behind him  surviving two grand-sons and two grand daughters as his only heirs and legal representatives. On November  4, 1985,  one grand-son  and one grand-daughter filed Civil  Miscellaneous Petition  No. 43065  of  1985  to bring them-selves and the other grand-son and grand-daughter on the record 808 of the  Appeal in  place  of  the  Appellant.  As  the  said application was  filed beyond time, they filed another Civil Miscellaneous Petition, namely, Civil Miscellaneous Petition No. 43066 of 1985, to condone the delay and to set aside the abatement of  the Appeal.  The question  which falls  to  be determined is  whether by  reason of  the very  fact of  the death of  the Appellant the Appeal has abated, because if it has, the  question whether  the delay  in  filling  the  two applications for  substitution and  for  setting  aside  the abatement of  the Appeal  by reason  of the  expiry of  time should be condoned will not arise.      The facts  material for deciding the above question may be briefly  stated. The  Appellant filed a suit in the Court of the Subordinate Judge, Ottappalam, against the Respondent claiming a  sum of  Rs. 5,500 as damages for defamation. The Trial Court  dismissed the  suit with  costs. The  Appellant thereupon filed  an appeal in the District Court of Palghat. The District  Judge allowed  the appeal  and passed a decree awarding  to   the  Appellant   Rs.  500   as  damages   and proportionate costs  both of  the said  appeal and suit. The Respondent then  filed a second appeal against the decree of the District  Judge  and  the  Appellant  filed  his  cross- objections thereto.  The High  Court of  Kerala allowed  the second appeal,  reversed the  decree of  the Appellate Court and dismissed  the Appellant’s  cross-objections as also the suit  directing   the  parties   to  bear  their  own  costs throughout. It  is against  this decree  and judgment of the Kerala High Court that the present Appeal is directed.      Order XXII  of the Code of Civil Procedure, 1908, deals with death,  marriage and  insolvency of  parties. As in the suit filed by the Appellant there was only one plaintiff and one defendant,  we are  not concerned with the provisions of Order XXII  other than those relating to a sole plaintiff or a sole  defendant. Rule 1 of Order XXII of the Code provides that the  death of  a plaintiff or defendant shall not cause the suit  to abate  if the  right to sue survives . Thus, if

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the right  to sue  does not  survive, the suit will abate on the death  of the  plaintiff. Under  Rule 3  of Order  XXII, where a  sole plaintiff  dies and the right to sue survives, the court  on an  application made in that behalf will cause the legal  representative of  the deceased  plaintiff to  be made a  party and  shall proceed with the suit, If, however, no application  in that  behalf  is  made  within  the  time prescribed by law, the suit will abate. Under Rule C(2), the court may  set aside  the  abatement  of  the  suit  on  the application  of   the  person   claiming  to  be  the  legal representative of the deceased plaintiff if he proves 809 that  he   was  prevented   by  any  sufficient  cause  from continuing the   suit.  Clause (11) of section 2 of the Code defines legal representative as meaning inter alia "a person who in law represents the estate of a deceased person . Rule 11 of Order XXII provides as follows :           "11. Application of Order to appeals. -           In the  application of  this Order  to appeals, so           far as  may be, the word ’plaintiff’ shall be held           to include  an appellant,  the word  ’defendant’ a           respondent, and the word ’suit’ an appeal. Thus, reading  Rule 1 and Rule 11 of Order XXII together, in the case  of an  appeal Rule  1 would  read The  death of an appellant or  respondent shall not cause the appeal to abate if the  right to sue survives. Thus, where there is only one appellant and  he dies during the pendency of the appeal, if his right to sue does not survive, the appeal will abate and his legal representative will have no right to be brought on the record to continue the appeal.      In the  present case,  if the  appellant’s right to sue had survived  on his  death,  his  right  to  prosecute  the present Appeal  would also  survive, but if the right to sue would not have survived on his death, this Appeal also would not have  survived and would abate. The question, therefore, is whether  in a defamation action the right to sue survives if the plaintiff dies.      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.      So far  as this  country is  concerned, which causes of action survive  and which  abate is laid down in section 306 of the  Indian  Succession  Act,  1925,  which  provides  as follows : 810           "306. Demands  and rights  of action of or against           deceased  survive   to  and  against  executor  or           administrator. -           All demands whatsoever and all rights to prosecute           or  defend   any  action   or  special  processing           existing in  favour of  or against a person at the           time of  his decease,  survive to  and against his           executors  or  administrators;  except  causes  of           action for  defamation, assault  as defined in the

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         Indian Penal  Code, or other personal injuries not           causing the  death of  the party;  and except also           cases where,  after the  death of  the party,  the           relief sought  could not be enjoyed or granting it           would be nugatory. Section 306  speaks of  an action  and  not  of  an  appeal. Reading section  306 along with Rules 1 and 11 of Order XXII of the  Code of Civil Procedure, 1908, it is, however, clear that a  cause of  action for defamation does not survive the death of the appellant.      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  the 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  representatives is  entitled to uphold  and   defend  and  is,  therefore,  entitled  to  be substituted in place of the deceased respondent-plaintiff.      Section  306  further  speaks  only  of  executors  and administrators but  on  principle  the  same  position  must necessarily   prevail   in   the   case   of   other   legal representatives, for  such legal  representatives cannot  in law be  in better  or  worse  position  than  executors  and administrators   and   what   applies   to   executors   and administrators will  apply to  other  legal  representatives also. 811      The position, therefore, is that had the Appellant died during the pendency of his suit, the suit would have abated. Had he  died during  the pendency of the appeal filed by him in the  District Court, the appeal would have equally abated because his  suit had been dismissed by the Trial Court. Had he, however,  died during  the pendency of the second appeal filed by  the respondent in the High Court, the appeal would not have abated because he had succeeded in the first appeal and his  suit had  been decreed. As, however, the High Court allowed the  second  appeal  and  dismissed  the  suit,  the present Appeal  by Special Leave must abate because what the Appellant was  seeking in  this Appeal  was to  enforce  his right to  sue for damages for defamation. This right did not survive  his   death  and   accordingly  the  Appeal  abated automatically on  his death  and his  legal  representatives acquired no  right in law to be brought on the record in his place and stead.      For the  above reasons,  the  Appeal  is  dismissed  as having abated.  The Civil  Miscellaneous Petitions,  namely, Civil Miscellaneous  Petitions Nos.  43065 of 1985 and 43066 of 1985  are also dismissed as being not maintainable. There will be no order as to the costs of the Appeal and the Civil Miscellaneous Petitions.      The amount  deposited by  the Appellant as security for the Respondent’s  costs will  be refunded to the petitioners in the  Civil Miscellaneous  Petitions for themselves and on behalf of  the two  other heirs and legal representatives of the  Appellant   mentioned  in   the   Civil   Miscellaneous Petitions. S.R.                                       Appeal dismissed.

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