Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 92 (CAL)

Ila Chakraborty v. Paresh Chandra Saha

2002-02-13

Bhaskar Bhattacharya

body2002
JUDGMENT Bhaskar Bhattacharya, J.: This revisional application is at the instance of heirs of the deceased plaintiff and is directed against Order No. 54 dated February 20, 1996 passed by the learned Assistant District Judge, 3rd Court, Alipore in Money Suit No.17 of 1988 thereby recording abatement of the suit on the death of the sole plaintiff. 2. One Moni Mohan Marik, since deceased, filed a suit being Money Suit No.17 of 1988 in the 3rd Court of learned Assistant District Judge, Alipore thereby claiming for a decree for Rs. 1,12,289.86 paise on account of alleged malicious prosecution by the defendant. 3. The defendant/opposite party is contesting the atoresaid suit by tiling written statement. During the pendency of the suit, the original plaintiff having died, the petitioners, the heirs and legal representatives of the deceased plaintiff, filed an application under Order 22 Rule 3 of the Code of Civil Procedure for being substituted in his place. 4. The learned trial Judge by the order impugned in this application rejected such application on the ground that the suit being one for damages for malicious prosecution, on the death of the sole plaintiff, right to sue did hot survive upon his legal heirs and as such application under Order 22 Rule 3 of the Code of Civil Procedure filed by the petitioners was not maintainable. The learned trial Judge thus dismissed the application for substitution and recorded abatement of the suit. 5. Being dissatisfied, the heirs of the deceased plaintiff have preferred the instant revisional application. 6. Ms. Rao, the learned advocate appearing on behalf of the petitioner strenuously contended by placing strong reliance upon the decision of this Court in the case of Krishna Behari Sen vs. Corporation of Calcutta, reported in ILR 31 Calcutta page 993, that a suit for malicious prosecution does not abate on the death of sole plaintiff. According to Ms. Rao, in a suit for damages for malicious prosecution, right to sue survives on the death of the sole plaintiff. She thus contends that the learned trial Judge acted illegally and with material irregularity in rejecting the application for substitution and recording abatement of the suit. 7. Mr. According to Ms. Rao, in a suit for damages for malicious prosecution, right to sue survives on the death of the sole plaintiff. She thus contends that the learned trial Judge acted illegally and with material irregularity in rejecting the application for substitution and recording abatement of the suit. 7. Mr. Banerjee, the learned counsel appearing on behalf of the defendant on the other hand has supported the order impugned and has contended that the learned trial Judge rightly held that the cause of action in such a suit does not survive on the death of the plaintiff. 8. After hearing the learned counsel for the parties and after going through the materials on record, I find that the question involved in this application has since been settled by the Supreme Court in the case of M. Veerappa vs. Evelyn Sequeira and Ors., reported in AIR 1988 SC page 506. 9. By the said decision, the Apex Court has overruled the aforesaid Full Bench decision of this Court in the case of Krishna Behari Sen vs. Corporation of Calcutta relied upon by Ms. Rao. The Supreme Court in the said decision has specifically approved the decision of Patna High Court in the case of Punjab Singh vs. Ramautar Singh, reported in AIR 1920 Patna page 841. In the said Patna decision, the question was whether a suit for damages for malicious prosecution abates under such circumstances. The said point was answered by Das, J in affirmative. Therefore, after the aforesaid decision of the Supreme Court, there is no scope of any argument that a suit for damages for malicious prosecution does not abate on the death of sole plaintiff. It may not be out of place to mention here that the position would have been different if the suit had been decreed by the Trial Court but during the pendency of an appeal preferred by defendant, the plaintiff/respondent had died. In such a case, the cause of action having merged into a decree, right to sue would survive upon the heirs and legal representatives of the deceased respondent. In such a case, the cause of action having merged into a decree, right to sue would survive upon the heirs and legal representatives of the deceased respondent. But if the suit had been dismissed and the appeal was preferred by the original plaintiff, on the death of an appellant during the pendency of such an appeal, the appeal would abate because the position of the appellant in such a case would be the same as that of a plaintiff whose suit was yet to be decreed. (See Melepurath Sankunni Ezhuthassan vs. Thekittil Geopalankutty Nair, AIR 1986 SC page 411). 10. Thus, I find that the learned trial Judge rightly held that on the death of the sole plaintiff during the pendency of such a suit, the suit abated. I thus find no reason to interfere with the order passed by the learned trial Judge. The revisional application is therefore dismissed. 11. In the facts and circumstances, there will be however no order as to costs. Revisional application dismissed.