Paul v. Francis Jacoba Poppy — 1949 DIGILAW 4 (KER)

JUDGMENT : S. GOVINDA MENON, J. 1. This Second Appeal arises out of a suit to recover damages for malicious prosecution, viz., O.S. No. 65 of 1120 on the file of the District Munsiff, of Ernakulam. The appellants before us are the legal representatives of the defendants in the case, Verghese deceased, and the respondent is the plaintiff. 2. The suit was dismissed by the court of first instance. The plaintiff preferred an appeal before the District Court of Anjikaimal in A.S. No. 388 of 1121. Pending that appeal the defendant Verghese died on 23rd Mithunam 1122. His legal representatives were duly brought on record and thereafter the trial of the appeal was proceeded with. The learned Additional Judge who heard the appeal by his judgment and decree dated 20th Vrischigom 1123 set aside the dismissal of the suit by the trial court and awarded to the plaintiff damages amounting to Rs. 400/-. 3. The facts of the case which have to be stated for a proper disposal of the appeal appear from the following extract from the judgment of the court below:- “The plaintiff and the defendant are living in adjacent parambas. Originally the paramba in which the plaintiff was residing belonged to the defendant. He assigned the same to one Alice Beal as per Ext. IV dated 10.1.1097 and subsequently it was assigned by Alice Beal to the plaintiff as per document No. 1265 of 1097 in the same year. On the boundary line between the parambas of the plaintiff and the defendant there were certain trees and according to custom the northern and eastern boundaries belonged to the owner of the plot and the plaintiff was in possession of the trees on the northern boundary line. However, the defendant is alleged to have raised the contention regarding the ownership and possession of this boundary line and the trees standing thereon. Because of the troubles alleged to have been created by the defendant the plaintiff put in the petition Ext. 1 dated 22.3.1115 before the Second Class Magistrate of Kanayannur alleging that the defendant threatened to trespass and put up the fence on the boundary of which she was the owner. That petition was forwarded to the Police for the usual enquiry, necessary action and report. Nothing is seen to have come out of it. 1 dated 22.3.1115 before the Second Class Magistrate of Kanayannur alleging that the defendant threatened to trespass and put up the fence on the boundary of which she was the owner. That petition was forwarded to the Police for the usual enquiry, necessary action and report. Nothing is seen to have come out of it. Since there was perpetual trouble owing to the dispute regarding the boundary the defendant and the plaintiff got the properties measured by the retired Revenue Inspector, Mr. Daniel in the presence of Advocate Mr. M.J. Ittoop. After measuring and fixing the boundary line of each plot the plan Ext. A was prepared by Mr. Daniel P.W. 1 showing the correct measurements on 30.3.1118. The defendant is alleged to have approved of the same and the plaintiff fenced the boundary thus fixed. Later on, on 28.7.1118 the defendant put in a petition before the District Magistrate under S. 92 of the Criminal Procedure Code requesting to take action against the plaintiff and her two sons. The learned District Magistrate is seen to have passed the following order on that petition: “This is purely a civil matter. Parties aggrieved will have the proper court for redress.” This order is Ext. B dated 6.12.1118. The defendant then took the matter in revision to the High Court in Crl. R.P. 2 of 1119. The High Court however rejected the revision petition on 7.6.1119 (Ext. C). On 27.2.1119 the defendant filed a criminal complaint against the plaintiff in the Second Class Magistrate’s court of Kanayannur as C.C. 70 of 1119 under Ss. 427, 359 and 406 of the Cochin Penal Code alleging that the plaintiff trespassed upon the boundary in his possession and dishonestly cut and removed the branch of a pooparthi tree standing on the boundary. Ext. D is the copy of the complaint. The learned Second Class Magistrate framed charge under S. 359 C.P.C. but acquitted the accused under S. 234(1) of the Criminal Procedure Code. Ext. E is the copy of that judgment dated 31.11.1119. The plaintiff who was the accused in the case has brought this suit alleging that the Criminal complaint was filed maliciously and without any reasonable and probable cause to put her to loss and trouble. Ext. E is the copy of that judgment dated 31.11.1119. The plaintiff who was the accused in the case has brought this suit alleging that the Criminal complaint was filed maliciously and without any reasonable and probable cause to put her to loss and trouble. In the suit in question she has claimed expenses which she had to incur in C.C. 70 of 1119 and the petition to the tune of Rs.100 and also Rs.300 towards mental pain and loss of reputation. 4. The damages now decreed to the plaintiff by the lower appellate court viz., Rs. 400/- is made up of three amounts, viz., (1) Rs. 75 which, according to the learned Judge, the plaintiff should “be fairly considered to have spent” in defendant C.C. 70/1119; (2) Rs. 25 as stated to have been spent by the plaintiff in connection with the petition filed before the District Magistrate and (3) Rs. 300/- compensation for the loss of reputation and mental pain etc., suffered by the plaintiff on account of her being dragged before the criminal courts. It may at once be stated that the learned advocate for the respondent frankly conceded at the time of hearing that the plaintiff was not entitled to any relief in connection with the proceeding had before the District Magistrate in this suit filed on 29th Chingom 1120 after the expiry of one year from the date of the termination of that proceeding viz., 6th Karkadakom 1118, and that the award of Rs.25 made by the learned Judge, i.e., item 2 mentioned above could not be supported. 5. The first contention urged before us by Mr. A.M. Thomas, the learned advocate for the appellants, is that, the merits of the case apart, the decree awarding damages passed by the court below in favour of the plaintiff after the death of the defendant Varghese, is legally unsustainable as the plaintiff’s cause of action did not survive the death of the wrongdoer. If this objection is upheld the appeal has to be allowed and it shall therefore be considered first. 6. It will be mentioned that the claim laid in the suit by the plaintiff was one to recover damages for malicious prosecution from the defendant. It was, in other words, a personal action commenced by the plaintiff for damages against the defendant in respect of a wrong caused to her. 6. It will be mentioned that the claim laid in the suit by the plaintiff was one to recover damages for malicious prosecution from the defendant. It was, in other words, a personal action commenced by the plaintiff for damages against the defendant in respect of a wrong caused to her. The court of first instance dismissed the suit. Pending the plaintiff’s appeal against that decision the defendant died. His legal representatives, viz., his three sons, were duly brought on the record of the appeal as respondents and thereafter the appeal was heard and allowed. Relying on the rule embodied in the well known maxim actio personalis moritor cum persona of the English Common Law Mr. Thomas argues that the plaintiff’s cause of action for the suit did not survive the defendant’s death. In other words, on the death of the defendant the suit abated and therefore the learned Judge of the court below went wrong in enquiring into the claim and proceeding to judgment. 7. Before proceeding to consider the acceptability or otherwise of the contention certain preliminary observations have to be made. It is conceded that this ground was not raised before the learned Judge and evidently, therefore, there was no consideration by him of this aspect of the matter. The appellants have in the memorandum of appeal taken this objection as a special ground. Mr. Thomas submits that the commission on the part of the present appellants to raise this specific objection in the court below is no bar to his being allowed to urge the same in second appeal. We are inclined to agree with him for the simple reason that the contention is one affecting the very jurisdiction of the court to pass the decree. It needs no mentioning that if the suit has abated the court cannot therefore adjudicate upon the claim involved therein. From reported decisions we find instances in which both the Travancore and Cochin High Courts have allowed this identical ground to be raised in second appeal for the first time. Reference may have to be made to the decision of the Travancore High Court reported as Aippora Verghese v. Sankaran Velu, 2 Dominion Law Reports 92 and that of the Cochin High Court in Eliyavoo Eliyapal v. Yesakunni Elya, 24 Cochin 491. Reference may have to be made to the decision of the Travancore High Court reported as Aippora Verghese v. Sankaran Velu, 2 Dominion Law Reports 92 and that of the Cochin High Court in Eliyavoo Eliyapal v. Yesakunni Elya, 24 Cochin 491. In the former case a Bench of the Travancore High Court allowed an identical contention to be raised for the first time in that court even though it was not a ground of objection mentioned in the appeal memorandum. From the judgment in the case the reasons given by the learned Judges do not appear as they were recorded in a separate order, not appended to the judgment. In the latter case a similar contention was considered and given effect of when a second appeal was re-heard after admission of review. No doubt, the specific question whether the ground could be allowed to be raised for the first time after the appeal was admitted to review does not appear to have been considered by the learned Judges. However that be, the virtual effect of the court giving effect to the contention that the plaintiff cause of action abated with the death of the defendant was to decide by necessary implication that the ground could be allowed to be urged and considered even though raised at the re-hearing. We shall now proceed to examine the contention on the merits. 8. The English Common Law rule embodied in the maxim actio personalis moritor cum persona is one which court in India including the High Courts of Cochin and Travancore have recognised. However, as remarked by the learned Chief Justice (Mr. Padmanabha Kukillaya) in Aippora Verghese v. Sankaran Velu, 2 Dominion Law Reports 92 referred to above, “it is not the abstract principle of the maxim actio personalis moritor cum persona that has alone to be considered but we have also to take into consideration the provisions of O. XXII, R. I, Civil P.C. and S. 69, Probate and Administration Act, XI of 1105 corresponding to S. 306 (Indian Succession Act). The corresponding Cochin Statutes also contain identical provisions. Rr. I and II of O. XXII of the Civil Procedure Code run as follows:- I. “The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.” II. The corresponding Cochin Statutes also contain identical provisions. Rr. I and II of O. XXII of the Civil Procedure Code run as follows:- I. “The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.” II. “In the application of this Order to appeal, so far as may be, the word “plaintiff” shall be held to include an appellant, the word “defendant” arespondent, and the word “suit” an appeal”. S. 89 of the Cochin Probate and Administration Act (X of 1096) which corresponds to S. 69 of the Travancore Act provides as follows:- “89. All demands whatsoever, and all rights to prosecute or defend any suit or other proceedings, 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 Cochin 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 negatory”. In Aippora Veghese v. Sankaran Velu, 2 Dominion Law Reports 92 after referring to the above provisions the learned Chief Justice observed: “From this it is clear, that barring the excepted cases, in all other instances the right to sue will survive, but in the excepted cases alone there would be an abatement. Defamation and assault are such cases. The question is whether malicious prosecution would also come under that category.” In other words, the short question for decision now is whether a cause of action to recover damages for malicious prosecution will fall within the ambit of the words “causes of action for defamation, assault as defined in the Cochin Penal Code or other personal injuries not causing the death of the party”. 9. There is no direct ruling on this question by the Cochin High Court. in Aippora Verghese v. Sankaran Velu, 2 Dominion Law Reports 92, the learned Judges have considered the question in the affirmative. The learned Chief Justice who wrote the leading judgment in the case has considered the question in all the aspects of the matter and also noticed the conflicting views expressed by some of the Indian High Courts. in Aippora Verghese v. Sankaran Velu, 2 Dominion Law Reports 92, the learned Judges have considered the question in the affirmative. The learned Chief Justice who wrote the leading judgment in the case has considered the question in all the aspects of the matter and also noticed the conflicting views expressed by some of the Indian High Courts. The Calcutta High Court has held that the cause of action does survive (vide Krishna v. Corporation of Calcutta, A.I.R. 31 Calcutta 993. The same is the view taken by the Rangoon High Court. (Vide Cassim & Sons v. Sara Bibi, A.I.R. 1936 Rangoon 18). On the other hand, the High Courts of Bombay, (vide Motilal v. Haranarayan, I.L.R. 47 Bombay 716) Patna (vide Punjab Singh v. Ramputar Singh, IV Patna Law Journal 676) and Madras (vide Rustonmji v. Murse, I.L.R. 44 Madras 357) have expressed the view that the right to sue does not survive and that the suit abates. Aippora Verghese v. Sankaran Velu (1) has followed the latter view. We also find that all the arguments advanced before us by the learned advocates have been considered by the learned Chief Justice in his judgment and we feel we cannot usefully add anything to his observations. Nor do we think it necessary to restate here in our own words the same reasoning. We are satisfied that there is no reason to dissent from the view taken in the said case. Following the same we also would hold that the cause of action for a suit to recover damages for malicious prosecution falls within the expected cases of “causes of action for other personal injuries not causing the death of the party.” It follows that on the death of the defendant Varghese the appeal abated and the court wrongly proceeded to judgment after bringing on record his legal representatives. 10. The result is this second appeal succeeds. Reversing the decree of the court below we dismiss the plaintiff’s suit. In the peculiar circumstances of the case we direct the parties to bear their costs throughout.