Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1335 (ORI)

Salila Kar v. Mayur Ranjan Kar

2017-11-21

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. This civil miscellaneous petition arises out of the order dated 20.7.2015 passed by the learned 2nd Additional Civil Judge (Sr. Divn.), Cuttack in C.S. No. 72 of 2010. 2. Short background involved in the case is that the opposite party no. 1 as the plaintiff filed a suit seeking declaration of the impugned letter dated 24.5.1999 as an outcome of fraud and forgery, maneuvered by defendant no. 6 therein and the same is non-est in the eye of law, for the preliminary decree for accounts be passed holding inter-alia that the defendant no. 6 is liable to render true and faithful account in respect of the newspaper from 24.5.1999 till the date of filing of the suit, also a decree holding that the defendant no. 6 is liable to pay compensation/damage of Rs. 5,000/- to the plaintiff towards his mental agony, harassment etc. due to fraudulent preparation & misuse of the impugned letters dated 24.5.1999 thereby laying false and lastly for a decree for permanent injunction against the opposite party no. 6 restraining him from representing the newspaper “The Matrubhumi” as its sole owner. Further fact reveals that the opposite party no. 1 as the plaintiff while relying upon the letter dated 24.5.1999 as indicated in the plaint has further mentioned in the plaint that the said letter is to be called for from the defendant no. 6 i.e. the predecessor in interest of these petitioners, the plaintiff-opposite party no. 1 has also pleaded that when he sought for assistance of the defendant including defendant no. 6 to start with the publication of the newspaper being stopped due to the illegal acts of the defendant no. 6 and further misappropriation of its fund with the claim of the defendant no. 6 to be the owner of the newspaper namely “The Matrubhumi” on the strength of such fraudulent letters, the petitioners disputed the letters strongly and submitted that the particular letter is fabricated one and the defendant no. 6 making the false claim to get the lease hold property recorded in his name. Hence, the suit is at the instance of the plaintiff-opposite party no. 1. Facts further reveals that during pendency of the suit, the defendant no. 6 died on 28.2.2012 leaving behind these petitioners. The plaintiff-opposite party no. 1 prayed for substitution of the legal representative of the deceased defendant no. Hence, the suit is at the instance of the plaintiff-opposite party no. 1. Facts further reveals that during pendency of the suit, the defendant no. 6 died on 28.2.2012 leaving behind these petitioners. The plaintiff-opposite party no. 1 prayed for substitution of the legal representative of the deceased defendant no. 6 and accordingly filed an application vide Annexure-2. The petitioners i.e. the defendant nos.6 (a) to 6 (c) being called upon to file their response, filed their response inter-alia stating therein that the right to sue does not survive against the legal representatives of the deceased defendant no. 6. For the reasons of relief claimed against the defendant no. 6, the same are all of personal character. Thus, they have all contended that for the death of defendant no. 6, the suit does not survive. It is claimed that the trial Court on failure of his consideration of the stand taken by the petitioners arrived at the wrong and illegal impugned order vide Annexure-4. 3. Sri S.K. Dash, learned counsel for the petitioner challenging the impugned order submitted that for the involvement of personal acquisitions involving the allegation of fraud by the particular person and for the death of that particular person, the suit does not survive. Further, the legal heirs of such party having no involvement in such activities, continuance of the suit will also become futile. 4. It is under the circumstance, Sri Dash, learned counsel for the petitioners submitted that the impugned order should be interfered with and set aside. 5. This matter was entertained by the order of this Court dated 11.12.2015. Notices were also issued to the opposite party no. 1 being the sole contesting opposite party. Nobody has appeared on behalf of the opposite party no. 1 as yet in spite of valid service of notice. Thus, the matter is decided only hearing the counsel for the petitioner. 6. Considering the submission of learned counsel for the petitioners and taking into consideration the factual background as narrated hereinabove, this Court finds, there is no denial to the fact that the suit is filed by the plaintiffs and for the reliefs indicated hereinabove solely attributing allegations involving the defendant no. 6, this Court on perusal of the plaint averments and the relief claimed therein neither finds any pleading involving the legal heirs of the defendant no. 6 nor any prayer involved on these petitioners therein. 6, this Court on perusal of the plaint averments and the relief claimed therein neither finds any pleading involving the legal heirs of the defendant no. 6 nor any prayer involved on these petitioners therein. In absence of any pleading and relief involving the legal heirs of the defendant no. 6, there is no question of involvement of legal heirs of the defendant no. 6 in the case at hand. Further, looking to the specific prayers made against the defendant no. 6 and for the allegations made therein, this Court also observes, there cannot be any trial of the issue involving present petitioners and addition of these parties will have no impact at all. 7. Taking into consideration the decision cited by the learned counsel for petitioners in the case of Kakumanu Pedasubhayya and Another vs. Kakumanu Akkamma and Another, AIR 1958 SC 1042 it appears, the Hon’ble Apex Court deciding such issue in categoric term has observed that the claim for which the plaintiff came to the Court, was that he was wrongly excommunicated and that was an action personal to him. Applying the principle of action personalis moritur cum persona when he died the suit should abate. Similarly, in the case of Melepurath Sankunni Ezhuthassan vs. Thekittil Geopalankutty Nair, AIR 1986 SC 411 it appears, considering a case involving an action for defamation the Hon’ble Apex Court held that for the death of the appellant, the case does not survive. Similarly in another case in between M. Veerappa vs. Evelyn Sequeira and Others, AIR 1988 SC 506 it appears, considering the suit for damage against a counsel for the death of the plaintiff, the Hon’ble Apex Court had also the similar view. 8. For the observations of this Court and the ratio of the Hon’ble Apex Court involving the aforesaid case, this Court finds, the decisions have the direct application to the case at hand. This Court while observing that the impugned order not sustainable in the eye of law, sets aside the same and rejects the application for substitution as against the defendant no. 6. 9. The civil miscellaneous petition succeeds. Under the circumstances, there is no order as to cost.