VIBHUTI SINGH Vs. DAMARI LAL

JUDGEMENT

(1.) THIS second appeal arises out of a suit for injunction. The plaintiff sought the removal of a Gumti and a decree for permanent injunction restraining the defendants from interfering with the plaintiff' s right to construct on the land in dispute. The two defendants are (1) Nagar Palika, Moghal Sarai and (2) Vibhuti Singh.

(2.) THE facts in brief are these : It was claimed that the defendant No. 1 allotted the land in dispute in favour of the plaintiff on 1st of December, 1969 and the allotment was by way of a lease for a period of eight years. THE plaintiff was directed to construct a Pucca shop on the said land. THE defendant No. 2, in collusion with the defendent No. 1, was alleged to have put up a tin Gumti some five or six days before the suit and it was alleged that the said defendant No. 2 was seeking to interfere in the plaintiff' s construction. THE defendant No. 1 was not providing any redress to the defendant No. 2 even though the former was moved to do so. THE defendant No. 2 contested the suit on various grounds. He claimed rights on the ground that on 18th Oct, 1969, the land in question had been settled with him on a daily fee or rental of Re. 1/- and since then he had been in possession. He had deposited six months' rent in advance. He had constructed a Gumti by investing Rs. 600/-. It was also contended that in an earlier suit filed by him, i e. Suit No. 607 of 1969 - Vibhuti Singh v. Nagar Mahapalika, a decree had been passed in his favour and against the defendant No. 1 whereby the latter had been restrained from dispossessing him i. e. Vibhuti Singh. THE suit was, therefore, also contended to be barred by Section 11 CPC in view of the decree passed in earlier suit No. 607 of 1969. Certain other defences were also taken but it is not necessary to notice them in the instant appeal.

(3.) ON the other hand, Sri R. N. Singh, learned counsel for the appellant, contended that after a suit had been filed and a decree passed in the trial court, then the situation changed and thereafter an appeal pending against such a decree cannot stand abated on the ground that the cause of action has not survived on the death of either party to the litigation. He placed reliance on the following cases: Muhammad Hussain v. Dipchand ((1887) ILR 9 All 131) (FB) is Full Bench decision of this court where it was laid down that in a personal cause of action it would abate in case the plaintiff dies during the pendency of the suit; there will be no such abatement in case a decree has been passed in his favour by the trial court and he dies during the pendency of the appeal against such decree. It was held that the benefit of the decree could be availed of by the legal representatives of the deceased plaintiff. In Mst. Ram Kaur v. Jiwan Singh, (AIR 1921 Lah 52), a Division Bench followed the ratio laid down by the aforementioned Full Bench judgment of this Court. In (1902) ILR 26 Bom 597, in a suit for defamation the plaintiff obtained a decree for damages against the defendant and executed the decree. The defendant filed an appeal but died before the hearing. A question arose whether the legal representatives of the deceased could continue the appeal or the appeal stood abated. There was a difference of opinion between the two Judges of the Division Bench. Then the controversy was referred to a third Judge and he held that the appeal did not abate and that the defendant' s legal representative had the right to continue the proceedings as the appellant. It was observed: " Where, however, a decree has been passed and damages awarded, some pecuniary damage is inflicted thereby on the personal estate and it is to obtain relief from this that the appeal is brought." Further on in the judgment it was laid down: " The result of these authorities would clearly seem to be that, where the claim has been perfected by a judgment, the nature of the relief claimed on appeal stands on a different footing and there will be no abatement." In Paraman Chetty v. Sundararaja Naick, ((1903) ILR 26 Mad 499), a suit for damages for malicious prosecution was decreed by the trial court and the said decree was affirmed by the lower appellate court. Then the defendant filed a second appeal and during the pendency of the said appeal died. The question arose whether the legal representative of the deceased defendant could prosecute the appeal. It was held that the legal representative was entitled to prosecute the appeal. Reliance was placed on (1902) ILR 26 Bom 597 (supra). A reference has also been made at the bar to Josiam Tiruvengadachariar v. Sami Iyengar ((1911) ILR 34 Mad 76) where a Division Bench referred to the earlier decision reported in (1903) ILR 26 Mad 499 (supra) and laid down that the ratio of the earlier case would be applicable where a decree has been pased in a suit based on a personal cause of action and during the pendency of the appeal by the defendant, the plaintiff-decree-holder respondent dies. In Jagdish Prasad Mathur v. United Provinces Government (AIR 1956 All 114), it was laid down that during the pendency of the appeal, on the death of a plaintiff who sought a declaration about his dismissal from service, the cause of action did not survive to the heirs and legal representatives and the declaration could not be granted to such heirs. In Kalloo Chaudhari v. Ramzan, (1942 All WRCC 345) : (AIR 1943 Oudh 14), it was held that the maxim, actio personalis moritur cum persona applies to a suit for vindication of a personal right and upon the death of the plaintiff the right to sue must be deemed to be extinguished. The principle applies even where the right to sue has matured in a decree if the right does not relate to or affect the estate of the deceased and does not involve any right to property which may be considered to be a heritable asset. In Syedna Taher Saifuddin Saheb v. State of Bombay, (AIR 1958 SC 253), a suit was filed by the plaintiff seeking a declaration that the orders of excommunication passed by the defendant were invalid. A preliminary issue was raised and tried in the suit and an appeal was filed against the finding on the said issue. During the pendency of the appeal, the plaintiff, respondent died and his daughter applied to be substituted in his place but she did not press the application and accordingly it was dismissed. In these facts and circumst-ances, it was held (at p. 254): " the claim with which the plaintiff came to Court was that he was wrongly excommunicated, and that was an action personal to him. ON the principle, actio personalis moritur cum persona, when he died, the suit should abate, and there could be no question of an appeal in relation thereto, as an appeal is only a continuation of the suit, and there could be no question of continuing what did not exist. The appeal could not be continued against the State for seeking decision on the validity of the Act." In the body of the judgment, the Supreme Court emphasised: " It should be remembered in this connection that no decree had been passed in the suit."