JOGINDER KUMAR SETH Vs. KASTURI AND SONS LTD

JUDGEMENT

(1.) This is an application under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 by the widow of Shri Joginder Kumar Seth for being substituted as plaintiff in place of her husband who is originally the plaintiff in the suit. The said Shri Joginder Kumar Seth has died during the pendency of the suit and therefore the application for substitution. The suit by Shri Joginder Kumar is for damages claiming a sum of Rs.25 lacs on the allegation that defendants No.1 and 4 printed while defendants No. 2 and 3 wrote/ edited and published an article under the caption "Citizen Award winner has 4 criminal records ". This article, it is alleged, was published at the instance of defendants No. 5 to 8 and contained false and defamatory imputations which not only damaged, injured and lowered the reputation of Shri Joginder Kumar Seth but also had the effect of causing heavy losses to him in the business.

(2.) The short question which arises for consideration is whether on the basis of the maxim' actio personalis cum moritur persona' the suit abates on the death of Joginder Kumar or does it survive inspite of his death.

(3.) It was argued by learned counsel for the defendants that right to sue does not survive to the widow of Shri Joginder Kumar and it was so contended on the strength of Section 306 of the Indian Succession Act which reads as under :- "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 proceeding 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 Indian Penal Code, 1860 (45 of 1860) 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.