1989CLC511 (PLP)

GUL ZARIN KIANI, J.‑‑This is an application for leave to appeal in forma pauperis by Mst. Nasri Begum widow of Syed Muhammad Akbar Haidri, plaintiff in the suit for recovery of Rs.14,43,564 as damages for his false and malicious prosecution by respondents 1 to

4. In course of the trial of the civil suit, original plaintiff died on 11‑11‑1986 and his legal representatives including his widow Mst. Nasri Begum were substituted for him on record. Defendants 1 and 4 made a petition to the Court for rejection of the plaint stating that cause of action for damages on account of original plaintiffs malicious prosecution did not survive to his legal representatives. By order dated 30‑6‑1987, the trial Court sustained the objection and held the suit to have abated under order XXII, Rule 1, C.P.C. Aggrieved by the decision, widow of the deceased plaintiff has filed a petition under Order XLIV, Rule 1, Civil Procedure Code for permission to appeal in forma pauperis. Application for leave is also accompanied by a memorandum of appeal containing grounds to challenge the decision of the trial Court. On behalf of the applicant, it is contended by Syed Riaz Ahmad Pirzada Advocate that right to sue for damages for false and malicious prosecution survived to the legal representatives of the deceased plaintiff and the view taken by the trial Court holding the suit to have abated was clearly erroneous. Under the proviso to Rule 1 of Order XLIV, Civil Procedure Code, unless the Court finds that the judgment and decree appealed from is contrary to law or some usage having the force of law, or is otherwise erroneous or unjust, the application submitted to it for leave to appeal in forma pauperis is bound to be rejected. Plain reading of the proviso shows that it is couched in mandatory terms. Therefore, the first point for decision is whether the impugned judgment and decree suffer from the defects noted in the proviso. To put it differently, the question is whether cause of action in a suit for damages arising out of false and malicious prosecution was personal to the plaintiff and was extinguished with his death during the trial of the suit brought by him against the wrong doers. This question came up for examination before the Courts on numerous occasions and the answer given in the long unbroken chain of decisions was that to such type of an action, the maxim actio personalis moritur‑cum‑persona applied and the cause disappeared and was extinguished with the death of the wrong doer or the party I wronged. The position, however, is different when the cause had matured in the decree in the plaintiffs lifetime because on the passing of the decree, there is no longer a "actio personalis‑cum" in existence but then the matter has passed into a judgment and merged in the estate of the deceased. Similarly, where a tort‑ feasor's estate stood benefited by the wrong doer an action would lie against the representatives of the wrong doer. In the present case, there is no doubt that right to get compensation for malicious prosecution was personal to the person wronged to which the above maxim of law fully applied. As said above, it is a well‑established principle of law that if the wronged person brought a suit in his life‑time for damages on account of his malicious prosecution but died before passing of a decree in his favour, the suit would clearly abate and his legal representatives could not continue the suit after his death. Mahant Salig Ram v. Charan Dass and another A I R 1939 Lah. 492, Kallo Chaudhari and others v. Ramzan and others A I R (30) 1943 Oudh 14, RM. P. KP. AR. Arunachalam Chettiar v. V.S. alias S.V.V. lSubramanian Chettiar (died) and another A I R 1958 Mad. 142, F.M. Shefta v. The Federation of Pakistan and others P L D 1959 (W.P.) Kar. 678, Mercantile Co‑operative Bank Ltd. v. Messrs Habib & Co. and others P L D 1967 Kar. 755, Ch. Abdul Ghani Ghumman v. Province of Punjab and 2 others P L D 1975 Lah. 1238, G.Jayaprakash v. The State of Andhra Pradesh and others A I R 1977 Andh. Pra. 20 are in point. No decision taking a contrary view was brought to our notice by the learned counsel for the petitioner except a decision in Krishna Behari Sen v. Corporation of Calcutta (1904) 31 Cal. 993 which as pointed out by Das, J., in the case of Punjab Singh and others v. Ramautar Singh and others A I R 1920 Pat. 841 was never subsequently followed even by Calcutta Court. See Mahtab Singh v. Hub Lal and another A I R 1926 All.

610. In this view, we are not prepared to depart from the well‑established and settled rule of law that 'right to sue' which is merely equivalent to 'right to. Seek relief in a suit for damages for malicious prosecution is extinguished and buried with the death of the wronged person, in case death takes place before passing of a decree in his favour. Therefore, impugned decision does not suffer from any error of the kind noted in proviso to Rule 1 of Order XLIV, Civil Procedure Code. Accordingly, application for leave to appeal in forma pauperis is rejected. As the petitioner was not possessed of sufficient means to pay the required amount of court‑fee exigible upon the memorandum of appeal, her learned counsel did not make a request to make good the deficit court‑fee. Therefore, it shall serve no useful purpose to extend time for payment of court‑fee payable on the memorandum of appeal. Consequently, both the petition for leave to appeal in forma pauperis and the appeal are dismissed in limine. A.A./N‑185/L Application and appeal dismissed.