SATYANARAIN PRASAD Vs. KISHUN PARYAG SAH

JUDGEMENT

(1.) This appeal arises out of a suit for damages for malicious prosecution against a number of defendants. The suit was dismissed by the trial Court against which the present appeal has been preferred to this Court by the plaintiff.

(2.) Learned Counsel for respondents has raised a preliminary question with regard to the competency of the appeal at this stage in following circumstances. Of the five defendants, defendant No. 2 Hiabati, who was respondent No. 2, died during the pendency of the appeal in this court. Likewise, Mahanth Sah (defendant No. 4), who was respondent No. 4, also died during the pendency of the appeal in this Court. The heirs were brought on record but two of the heirs of Hiabati, Jagdeo and Bipat, were minors so also four of the heirs of Mahanth Sah, Ramnarain, Jimdar, Kamal and Poujdar, were minors. They were placed under the guardianship of the Deputy Registrar and costs were to be deposited for their proper representation through an advocate. But the amount of costs required not having been deposited, the appeal stood dismissed as against the two minor heirs of Haibati and the four minor heirs of Mahanth Sah. Learned Counsel for the respondents has contended that in view of this position the entire appeal has become incompetent as there is a danger of conflicting decrees corning into existence if the present appeal is allowed to proceed on and happens to be allowed on merits. His contention is that all the heirs of the two dead respondents would be in the same position as the two tort-feasors themselves, namely, defendant Nos. 2 and 4. If, therefore, the appeal stands dismissed as against the two minor heirs of defendant No. 2 and the four minor heirs of defendant No. 4, and if the appeal happens to be allowed in respect of the remaining heirs of the two deceased respondents, there will be two conflicting decrees in respect of the same cause of action against the same persons. He has referred in this connection to the case of Janak Sahu v. Anant Jha, AIR 1958 Pat 8 (A). In the course of argument, I myself happened to remember a decision of this Court reports ed in Rameshwar Singh v. Ram Charan Sahy, AIR 1932 Pat 327 (B). So far as AIR 1958 Pat 8 (A), is concerned, Mr. R.S. Chatterji has contended that it was a case of abatement as the heirs who were sought to be brought on record after the death of one of the respondents actually were not brought on record, because the costs for service of notice on the heirs of the deceased respondent were not deposited in time. That was a case where a rent decree was obtained by the landlord against certain persons and thereafter a member of the family of the tenants brought a suit for setting aside the ex parte decree. After certain proceedings, which it is not necessary to refer to, it appears that the plaintiff's suit was decreed. The defendants preferred an appeal against the decree of the learned Munsif but the appeal was dismissed and a second appeal was preferred to this Court. During the pendency of the second appeal, Kishun Tatwa, respondent No. 6, died. In those circumstances, relying upon the case of Apurba Krishana v. Ram Bahadur, AIR 1936 Pat 191 (C), it was held by a Division Bench that the position as a result of the non-substitution of the heirs of Kishun Tatwa, respondent No. 6, was that if the appeal was held to be competent as against the remaining respondents it would give rise to conflicting decrees. Mr. Chatterji has contended that that was a case of abatement. In my opinion, however, the principle would be the same whether the principle of abatement applies or the appeal is held to be incompetent as a whole on account of there being danger of conflicting decrees arising due to non-impleading of certain necessary parties to the appeal who might rely upon the decree of Court below sought to be impugned in appeal, in their favour. The position is well-settled and therefore the distinction sought to be drawn is not of any value. That, however was not a case of a suit for damages against joint tort-feasors; that was a case of the respondents having joint interest in the decree passed in their favour by the trial Court. I had, however, myself occasion to refer to the case of AIR 1932 Pat 327 (B), which is a ruling of the Division Bench of this Court, In that case a final decree was passed in favour of the plaintiff with regard to mesne profits, a suit for recovery of possession having already been decreed at the preliminary stage. The plaintiff was, however, not satisfied with the amount of mesne profits allowed to him and accordingly, he preferred an appeal to this Court against the decree of the trial Court. During the pendency of the appeal, it transpired that two of the respondents, being respondent Nos. 1 and 18, were discovered (?) to be dead and that they had died before the passing of the final decree by the learned Subordinate Judge. The High Court rejected the prayer for substitution of the heirs of the two respondents. The point for consideration before this Court was whether the entire appeal became incompetent as a result of the heirs of the two deceased respondents not being on record. Their Lordships observed in this connection as follows:

(3.) Apart from the above decision, in Kali Narayan Roy v. Haran Chandra Ghosh, 62 Ind Cas 714 (D) at p. 715 a Division Bench of the Calcutta High Court laid down the principle to be followed in such cases which, on facts also, is similar to present case. In that case a suit was brought by the plaintiff for damages against several joint wrong-doers. The suit was dismissed and the plaintiff preferred an appeal against the decision of the court below. During the pendency of the appeal one of the wrong doers died and his representative was not brought on record in his place within the time allowed by law so that the appeal abated so far as the interest of the deceased respondent was concerned. It was held that the entire appeal became incompetent as a result of such no-substitution. Learned Counsel for the appellant brought to my notice a decision of this court in Punjab Singh v. Ramautar Singh, 4 Pat LJ 676: (AIR 1920 Pat 841) (E). That was a case where the plaintiff brought a suit for recovery of a sum of Rs. 2,521 and odd as damages for malicious prosecution, The suit was dismissed by the trial Court, but on appeal, a decree was passed in favour of the plaintiff. The defendant filed a second appeal. It appeared that Khub Lal Singh, the plaintiff died after dismissal of the suit by the trial Court. The point taken in the High Court was that the cause of action died with Khun Lal and did not survive to his legal representative The learned District Judge following the decision in Krishna Bihari Sen v. Corporation of Calcutta, ILR 31 Cal 993 (F), held that the cause of action survived to the legal representative. This Court followed the decision of the Madras High Court in preference to that of the Calcutta High Court, the Madras case being Veera Bhadrappa v. Firm of Marwari Vannajee Vajanjee, 38 Ind Cas 823: (AIR 1918 Mad 1100) (G), and referring to Section 89 of the Probate and Administration Act, held that the cause of action did not survive to the legal representative of the deceased plaintiff. On that view of the matter, the appeal was allowed. It is clear from the statement of facts mentioned above that in the above case there was no danger of a conflicting decree. The simple question for consideration was whether the cause of action in a suit for malicious prosecution had survived to the legal representative of the persons injured who brought a suit for damages. The above case, therefore, has no bearing on the present controversy as to whether when there is danger of a conflicting decree in a personal action whether the doctrine of actio personalis cum persona will govern the position.