SHEILA PRAKASH KAVLEKAR Vs. JEETENDRA A NAGARSHEKAR

JUDGEMENT

(1.) THE petitioners have challenged the order of the Civil Judge, Senior Division, Quepem refusing to bring on record the legal representatives of Advocate who was sued by the petitioners for alleged fraudulent acts and misconduct. The petitioners have filed the suit against the defendants inter alia for damages in the sum of Rs.50 Lacs to be paid jointly or severally. The defendant No.5 in that suit was an Advocate, now deceased. According to the petitioners, the said Advocate acted fraudulently and in breach of trust in the conduct of the Inventory proceedings between the petitioners and other defendants in the suit. According to the petitioners inter alia the Advocate, in collaboration with other defendants did not inform the petitioners the date of the auction and thus enabled other defendants to purchase the family property at a low price. The Advocate had denied all the plaint averments. However, pending the suit he passed away. The petitioners, therefore, applied for bringing the legal heirs of defendant No.5 on record under Order XXII, Rule 4 of C.P.C. The trial Court has dismissed the said application. Hence, this writ petition.

(2.) MR. Pereira, the learned Counsel for the petitioners submitted that the defendant No.5- Advocate, had been sued on a contract and not in torts. Therefore, according to the learned Counsel, the cause of action survives against the heirs of the Advocate i.e. the respondents herein and the trial Court ought to have allowed those heirs to be brought on record as legal representatives. Mr. Periera relied upon a decision of the Supreme Court in M.V. Veerappa Versus Evelyn Sequeira, reported in AIR 1988 SUPREME COURT 506. That was a case where the Supreme Court observed that whether the cause of action survived would depend inter alia on whether the suit was founded entirely on torts or on contract or partly on torts and partly on contract. Therefore, Their Lordship directed the Trial Court to decide the category in which the suit fall before deciding the application for bringing the legal representatives on record. In that suit the plaintiff had sued an Advocate for negligence but the plaintiff had passed away pending the suit. The plaintiff's heirs, had therefore, sought to be brought on record as legal heirs. The considerations in that case are quite different from the case at hand. In the present case, the Advocate who has been sued has died and the question is whether the cause of action against the Advocate could be said to have survived so that his heirs would be liable thereon. It is clear that the suit was filed against the Advocate for an act which was purely personal in nature i.e. the alleged fraudulent conduct in the suit. Thus, primarily the suit is in torts. Merely because the plaintiffs have alleged that they had executed some blank Vakalatnamas as a result of which the other defendants in the suit had engaged the deceased Advocate, it cannot be said that the suit is founded on contract. Fraudulent conduct is a matter independent of contract and in the realm of Torts. Moreover, in this case it is clear from the plaintiff's case that they had not engaged the deceased Advocate but that he had been engaged by some other defendants on the basis of blank vakalatnamas. Squarely, the suit is in respect of damages claimed on account of alleged fraud committed by a professional Advocate and the claim is purely a claim in torts and for an action personal of the Advocate. Being personal in nature, I am of the view that the case is covered by the doctrine actio personalis moritur cum persona (a personal right of action dies with person). The cause of action in such a case cannot be said to have survived by the death of the defendant No.5. Therefore, the heirs cannot be held to be legal representatives of the deceased defendant in such an action. Admittedly, there is no allegation in the plaint that the deceased or his estate benefited or that the heirs have inherited such an estate.