2016 PLP 1144 (MLD)

CHAUDHARY JAHANDAD KHAN, J.

The captioned revision petition has been filed against the order of the learned Additional District Judge, Mirpur, on 09-04-2014 whereby the application for dismissal of suit filed by defendant/petitioner, herein, in the trial Court was rejected.

2. Synthesized facts of the instant revision petition are that predecessor-in-interest of respondents, herein, filed a suit for recovery of costs on the basis of damages of Rs.51,00,000/- against the defendant/petitioner, herein, in the Court of learned District Judge, Mirpur, which thereafter was entrusted to Additional District Judge, Mirpur, for hearing and disposal. It is stated that the defendant/ petitioner, herein, filed written statement along-with it a photostat copy of appeal pending in this Court was also filed. It is stated that during pendency of the suit, plaintiff, Khurshid Ali Mirza, died. It is averred that an application was filed for impleading legal heirs of (deceased) plaintiff whereas the defendant/petitioner, herein, filed an application for dismissal of suit on the ground of death of the plaintiff, which was rejected while accepting the application for arraying legal heirs of deceased plaintiff vide order dated 09.04.2014, hence, this revision petition.

3. Sardar Mohammad Azam Khan, Advocate, representing the petitioner, herein, zealously argued that the learned trial Court fell in error while accepting the application for impleading legal representatives of deceased plaintiff in the memorandum of suit because if either plaintiff or defendant dies during proceedings, the right to sue does not survive. The learned counsel emphasized that learned Court below did not ween into the principle laid down by the apex Court as referred to and relied upon pertaining to dismissal of the suit. The learned counsel maintained that revision petition, in the given circumstances, may be accepted while allowing the application for dismissal of suit filed in the Court below to meet the ends of justice. The learned counsel craved that the impugned order is against law and facts of the case, which is liable to be set-aside. The learned counsel in support of his contention referred to and relied upon the succeeding case law:-- i) Shamim Barlas v. Al-Habib Cooperative Housing Society through Secretary and another [2008 CLC 55]; ii) Shamim Akhtar and 24 others v. Mst. Fatima Bi [2001 YLR 3173].

4. On contrary, Mr. Mohammad Reaz Tabassum, Advocate, appearing on behalf of respondents, vehemently argued that the learned Court below committed no illegality or infirmity while allowing the application filed on behalf of legal heirs of deceased, plaintiff. The learned counsel contended that the legal heirs of either of the parties can be impleaded in such like matters, therefore, no irregularity or perversity has been committed by the Court below, therefore, revision petition may be dismissed while maintain the impugned order. The learned counsel in support of his assertion referred to and relied upon the preceding case law:- i) Ghayyur Hussain Shah and another v. Gharib Alam [PLD 1990 Lahore 432]; ii) Amir Hussain Khan v. Ghulam Akbar Khan [1993 MLD 686]; iii) Dost Muhammad v. WAPDA through Chairman [2005 YLR 2520]; and iv) Nasir Ali v. The State [2006 YLR 1550].

5. I have heard the respective arguments advanced on behalf of the parties by their learned counsel and perused the impugned order along-with available record of the case conscientiously.

6. For determination of real controversy between the parties, it is relevant to see whether the impugned order passed by the learned Additional District Judge, Mirpur, on 09.04.2014 is in the rhyme and scheme of law or not? A perusal of para No.7 suit elucidates that plaintiff/predecessor-in-interest, of legal heirs, individually claims that:--

7. By taking into account the above quoted para along-with sub-paras, it is crystal clear that damages claimed fall in the ambit of civil nature due to which the plaintiff/predecessor-in-interest of respondents, herein, suffered mental and physical torture, wastage of precious time and extinguished of business activities and the same would not be rendered to the legal heirs because such suffering was born by predecessor-in-interest of respondents, herein, not legal heirs of him, hence, the application for arraying necessary party filed on behalf of legal heirs of plaintiff before the learned Court below was not maintainable under law because during proceedings of the suit one of the litigant parties dies, the case would be redundant on the ground that in a suit of malicious prosecution the right to sue does not survive and the same would be deemed to have been died with the dead person. It is suffice to say that the learned Additional District Judge, Mirpur, committed grave illegality while rejecting the application for dismissal of suit because after the death of the plaintiff the liabilities in Tort, damages of mental anxiety, wastage of time and business loss claimed by him cannot be granted in favour of legal heirs of plaintiff under law, hence, the maxim of law i.e. actis personalis moritur cum persona is fully applicable in the case in hand, which means "death destroys the right of action" and a personal action dies with the person. For proper appreciation of the matter Order XXII, Rule 1 of Civil Procedure Code is reproduced as under:-- "

1. No abatement by party's death if right to sue survives.

The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives." On the point, it has been observed in a case titled Rustomaji Dorabji v. W.H. Nurse and another [AIR 1921 Madras 1] in the following manner:-- "Civil. P.C., O.XXII, R. 1

Suit for malicious prosecution

Defendant dying before judgment

Right to sue does not survive

Personal injuries, are wrongs to person --Probate and Administration Act (1881), S.

89. If a defendant in a suit for malicious prosecution dies before judgment is given in the suit, the right to sue does not survive within the meaning of O.XXII, R. 1, so as to prevent the abatement of the suit. "Personal injuries," wrongs to the person which do not necessarily cause damage to the estate of the person wronged." An identical point came under consideration in a case titled Mian Rahim Gul Syed Kaka Khel v. District Judge (South), Karachi and others [1994 CLC 94] in which it has been observed that:-- "Maxim

"Actio personalis moritur cum persona" (Personal rights of action die with person)." On the very purpose, the apex Court has resolved the controversy in a case titled Shamim Akhtar and 14 others v. Mst. Fatima Bi [2001 YLR 3173] wherein it has been observed that:-- "Malicious Prosecution

S.42

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)

Suit filed by plaintiff for claiming damages whether could proceed after death of defendant against his legal representatives --In a case of civil malicious prosecution if plaintiff or defendant dies, right to sue does not survive and such suit cannot be proceeded with

In such case there would be no distinction between malicious criminal prosecution and malicious civil prosecution so far as question of bringing legal representatives of deceased party on the record was concerned

Suit filed by plaintiff was, thus, no more maintainable after his death against his legal representatives." Parallel views have been expressed in a case titled Mrs. Shamim Barlas v. Al-Habib Cooperative Housing Society through Secretary and another [2008 CLC 55] wherein it has been opined that:-- "Torts

Liability in torts

Scope --Personal action dies with the person and death extinguishes the liability in tort. (b) Civil Procedure Code (V of 1908)

O. XXII. R.4

Tort

Damages, suit for

Death of defendant

Impleading of legal heirs

Suit for recovery of damages was filed against defendants and one of them died during pendency of suit --Plaintiff filed application in Trial Court for impleading legal heirs of deceased defendant as party to proceedings

Validity

Claim against deceased defendant was purely based upon illegal lease of plot in favour of other defendant which was restored to plaintiff in arbitration proceedings

Plaintiff failed to show that estate of deceased was benefited by its illegal lease

Plaintiff could not maintain suit for damages against legal heirs of deceased defendant as death of defendant extinguished liability in tort and had brought end to cause of action

Application was dismissed in circumstances."

8. Even otherwise, under section 306 of Succession Act, 1925, the suit for defamation, assault and personal injuries does not survive after death of either of the parties. For proper appreciation of the matter Section 306 of the above Act, is reproduced as under:-- "

306. Demands and rights of action of or against deceased survive to and against executor or administrator. All demands whatsoever and all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his decease, survive to and against his executors or administrator; except causes of action for defamation, assault; as defined in the Pakistan 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 nugatory." Resembling controversy has been resolved, by the apex Court of Pakistan in a case titled Mir Shakeelur Rehman and others v. Yahya Bakhtiar and others [PLD 2010 SC 612] in which relevant captions therefrom is reproduced below:-- "(a) Malicious Prosecution

Remedies in civil and criminal law

Distinction

In domain of civil law, the person wronged can file a suit for damages for malicious prosecution

Such is a personal action and dies with death of either of the parties

Libel or defamation in criminal law, besides being personal injury is an offence against society as it may have potential of disturbing public peace

Such action survives death of complainant if imputation and not only harms reputation of that person but is also intended to be hurtful to his family members or force or institution of which the deceased was member. (b) Penal Code (XLV of 1860)

Ss. 501 & 502

Defamation

Death of complainant

Impleading of legal heirs

Principle

Person specific and transaction specific complaint

Effect

Complainant filed private complainant under Ss.500, 501 and 502, P.P.C. against accused for publishing report against him in his newspaper

Complainant died during pendency of proceedings and his legal heirs were impleaded as complainants in the case

Validity

Held, it was not a case which fell in the category of cases where complaint would survive the complainant

Libel published in the newspaper was directed against the person of complainant alone

Publication could be wrong and scandalous but the fact remained that it was person specific and transaction specific -- In the complaint filed by complainant and statement made by him before Trial Court, there was no allegation that libel had in any manner injured reputation of his family or relatives

Order passed by High Court was set aside and complaints subject-matter of appeal pending in Trial Court were declared to have abated

Appeal was allowed."

9. By considering the above quoted provisions of law, a suit for malicious prosecution is a matter of civil nature, the same is defined in "Tort" as a civil wrong, which is not exclusively the breach of a contract or the breach of a trust whereas an injury or a wrong committed with or without force to the person or property of another, and such injury may arise by either the non-feasance, malfeasance, or misfeasance of the wrongdoer. In the peculiar circumstances of the case, the application for dismissal of suit was erroneously rejected by the learned Additional District Judge, Mirpur, vide order dated 09.04.2014 without applying the judicial application, therefore, the same is accepted while setting-aside the above order. Consequently, the suit sub-judice before the Court below stands dismissed for having no cause of action. The case law referred to and relied upon by the learned counsel for the respondents are quite distinguishable from the peculiar circumstances and facts of the case in hand, therefore, there is no need to discuss here in black and white.

10. In view of the matter, the revision petition is accepted and suit is hereby dismissed, inasmuch as, on the death of the plaintiff, predecessor-in-interest of respondents, herein, for damages and which suit under law of Tort, the right to sue does not survive. The application of legal heirs filed before the Court below, is, therefore, rejected. The parties are left to bear their own costs. ZC/14/HC(AJ&K) Petition allowed.