Delhi District Court
Mange Ram vs Sh. Sukhbir Singh on 13 April, 2018
IN THE COURT OF SH. ANKUR JAIN: ADDL. DISTRICT JUDGE:
TIS HAZARI, DELHI
Suit no. : 288/17
New No. : 13326/16
Mange Ram
Son of Late Sh. Rampat
R/o Vill. and P.O. Surehra
New Delhi - 43. .....Plaintiff
VERSUS
1. Sh. Sukhbir Singh
Son of Late Sh. Chandgi Ram
2. Sh. Ved Prakash Patwari
Son of Late Sh. Chandgi Ram
3. Sh. Suraj Bhan
Son of Late Sh. Chandgi Ram
4. Sh. Attar Singh
Son of Late Sh. Chandgi Ram
5. Sh. Udai Singh
Son of Late Sh. Chunni Lal
6. Sh. Mange Ram
Son of Late Pandit Kundan Lal .....Defendants
Suit instituted on : 17.02.2006
Reserved for order : 20.03.2018
Order announced on :13.04.2018
Suit for Recovery of Damages of Rs. 18 Lacs
JUDGMENT
01. The brief facts of the case are that the plaintiff and defendants are the resident of same village and plaintiff was Suit no. 288 of 2017 Page no. 1 of 12 appointed as a Head Constable in Delhi Police on 01.04.1970. The defendants were enemical towards the plaintiff as one of the Aunt of the plaintiff namely Bharto was an eye witness in the murder case in which one Man Singh, brother of the father of defendant no. 1 to 4 had been convicted for life imprisonment u/s 302 IPC. The brother of defendant no. 6 was also convicted in the said case. Smt. Bharto was residing with the plaintiff and therefore, the father of defendant no. 1 to 4 namely Chandgi Ram Patwari along with defendant no. 5 to 6 wanted to spoil the life of plaintiff and accordingly, a false case vide FIR No. 92/81 u/s 452/308 IPC was registered against the plaintiff at PS Najafgarh. The plaintiff was suspended because of the registration of the said case, however, ultimately he was acquitted by the Ld. ASJ vide order dated 23.04.1985. An appeal was filed by the state before the Hon'ble High Court which also came to be dismissed on 23.02.2005. It is further stated that Chandgi Ram expired and defendant no. 1 to 4 have inherited his Estate as they are the legal heirs of Late Sh. Chandgi Ram. Defendant no. 5 ad 6 were the witnesses in the said FIR and therefore, they are also liable for malicious prosecution. It is further alleged that the plaintiff had suffered because of the false case and had to take a voluntary retirement because of mental Suit no. 288 of 2017 Page no. 2 of 12 tension and agony. Therefore, the present suit has been filed by the plaintiff claiming damages on account of physical and mental pain, litigation expenses to the extent of Rs. 18,00,000/- along with interest @ 24%.
02. Summons of the suit was issued upon the defendant on 18.02.2006. The joint written statement was filed by defendant no. 1 to 6 wherein objections were taken by defendants that plaintiff has no right to sue the witness of the criminal case. It was further stated that suit has abated as the plaintiff was aware that Late Sh. Chandgi Ram Patwari had expired on 25.04.2005 and thus the plaintiff cannot sue legal heir of late Sh. Chandgi Ram. It was also stated that the present suit is barred by law of limitation. It is also stated that all the other legal heirs of Chandgi Ram have not been impleaded as a party and only the surviving male member had been impleaded.
03. Replication to written statement has been filed wherein the contents of the WS were denied that of the plaint have been reiterated.
04. After completion of pleadings vide order dated Suit no. 288 of 2017 Page no. 3 of 12 06.07.2006 following issues were framed:-
1. Whether the suit is bad for want of locus standi?
OPD.
2. Whether the suit is barred by limitation? OPD.
3. Whether the plaintiff in entitled for the damages, if so, for what sum? OPP.
4. Whether the plaintiff is entitled for the interest, if so, at what rate and for which period? OPP.
5. Relief.
05. Vide order dated 03.06.2009 a preliminary issue was framed :
"whether in a suit for malicious prosecution the cause of action survives against the LRs of the deceased complainant/person responsible for the malicious prosecution? If, so, its effect?" Onus on both the parties.
06. Vide order dated 17.07.2013 it was held that the preliminary issue so framed shall be decided with the main issues.
07. During the pendency of the suit defendant no. 5 expired and vide order dated 11.04.2008 defendant no. 5 was deleted from the array of parties, as the application seeking to bring his LR's on record was dismissed. Similarly defendant no.
Suit no. 288 of 2017 Page no. 4 of 12 6 had also expired and the application seeking to bring on record his LRs was also dismissed. Both these orders were never challenged by the plaintiff and they have attained finality.
08. In order to prove its case plaintiff has examined himself as PW1. PW-2 HC Ram bir to prove the record of FIR no. 56/92. PW-3 HC Rajender Singh to prove the service record of the plaintiff. PW-4 Dr. Renu Bhatia to prove the treatment of Smt. Ram Pyari, PW-5 Dr. Rakesh Mittal to prove that plaintiff was suffering from Tuberculosis. Defendant in his support examined DW1 Mange Ram son of Sh. Kundan Lal as the only witness. Thereafter plaintiff examined Ravinder Kumar in rebuttal as PW6.
09. Ld. counsel for the plaintiff has argued that the Chandgi Ram is liable for malicious prosecution and because he has expired, therefore, his LRs are liable. He submits that testimony of PWs sufficiently establish that plaintiff had suffered a lot and therefore, the defendants are liable to pay damages. In support of his arguments he has relied upon the judgment of Roop Singh & Anr. Vs. Amarjit Singh & Ors 2017 (3) Law Herald (Punjab & Haryana) 2399.
Suit no. 288 of 2017 Page no. 5 of 12
10. On the other hand Ld. counsel for the defendant has argued that only the male member of Late Sh. Chandgi Ram had been made a party to the suit. He submits that plaintiff had taken voluntarily retirement not because of ill health, but because he wanted to cultivate his land. He further submits that suit against the LRs of Chandgi Ram is not maintainable.
11. I have heard the Ld. counsels for the parties and perused the record. My issue-wise findings are as under:-
12. Issue no. 1:-
Whether the suit is bad for want of locus standi?
OPD.
And additional issue Whether in a suit for malicious prosecution the cause of action survives against the LRs of the deceased complainant/person responsible for the malicious prosecution? If, so, its effect? Onus on both the parties.
Issue no. 1 and additional issue are both taken up together. It is the case of the plaintiff that suit against the LRs of the defendant is maintainable and in support of its arguments he has relied upon the judgment Roop Singh Vs. Amarjit Singh (Supra).
Suit no. 288 of 2017 Page no. 6 of 12
13. On the other hand Ld. counsel for the defendant has argued that the suit against the LRs of the deceased defendant is not maintainable and hence plaintiff has no locus standi to file the present suit.
14. In the present case Chandgi Ram who is the father of defendant no. 1 to 4 made a complaint against the plaintiff and FIR No. 92/81, PS Najafgarh, U/s 452/308 IPC was registered. It is an undisputed fact that plaintiff was acquitted in the said case and an appeal was filed before the Hob'ble High Court of Delhi which also came to dismissed. Thereafter the present suit for malicious prosecution was filed by the plaintiff. The question which arise for consideration is whether the suit for malicious prosecution can be filed against the LRs of Chandgi Ram. The Hon'ble Madras High Court in RM. P.K.P. AR Arunachalam Chettiar Vs. V.S. @ S.U.V. Subramaniam Chettiar (died) & Anr. AIR No. 1958 Madras 142 held that "it is now well established that the maxim actio personalis moritur cum persona is part of law of this country expect in so far as it has been modified by Statute.
Suit no. 288 of 2017 Page no. 7 of 12 In Rustimji Dohrabji Vs. Nurse ILR 44 Madras 357 a full bench of this court ruled that in a suit for malicious prosecution when a defendant dies, right to sue does not survive.
15. In Puran Singh Vs. State of Punjab 1996 (2) SCC 205 it was held that a personal action such as action for damages, defamation, assault or personal injuries not causing the death of the party and other action, on the death of the party, the granting of a relief would be nugatory and dies with the death of a person.
16. The Hon'ble Supreme Court in M. Veerappa VS.
Evelyn Sequira & Ors. AIR 1988 SC 506 it was again laid down that any action for damages, if the claim is found entirely on torts, the suit would abate and it would survive only if the claim is based entirely on contract.
17. In the judgment of Chettiar (Supra) the Hon'ble Madras High Court had also negated the contention with respect to application of Section 306 of the Succession Act and it was held that provision is of no consequences since it is applicable to Suit no. 288 of 2017 Page no. 8 of 12 executors and administrators of a deceased person and not to heirs or other legal representatives.
18. In Verrappa (Supra) also the Hon'ble Supreme Court observed that the words "personal injuries" occurs in Section 306 of the Indian Succession Act do not mean injuries to the body alone but all injuries to a person other than those which cause death and that the relevant words must be read ejusdem generis with the words "defamation and assault" and not with the word "assault alone".
19. The sum and substances of all the judgments is that in case the suit of the plaintiff is based entirely on torts then the proceedings would abate on the death of the defendant and in case it is based on contract the suit be continued. In the present case the suit of the plaintiff is found entirely on torts. It is not the case of the plaintiff that his claim is based on contract. The reliance upon the judgment of Roop Singh (Supra) is of no help in as much as the said judgment has not taken into consideration, any of the judgment of Hon'ble Supreme Court or of the Madras High Court. Hence the said judgment is not applicable to the facts of the present case. The right to sue does Suit no. 288 of 2017 Page no. 9 of 12 not survive in favour of the legal heirs in a case of malicious prosecution. Thus plaintiff has no locus standi to file the present suit. The issue is accordingly decided in favour of the defendant and against the plaintiff.
20. Issue no. 2:-
Whether the suit is barred by limitation? OPD. The onus to prove this issue is upon the defendant. As per the article 74 of the Schedule to Limitation Act 1963, the period of limitation is one year for filing the suit for malicious prosecution, and the time begins to run from the day when the plaintiff is acquitted or the prosecution is otherwise terminated. It is the case of the plaintiff that his suit is within the period of limitation. Whereas it has been argued by the defendant that the suit is barred by limitation as admittedly plaintiff was acquitted on 23.04.1985 and the suit was filed on 18.02.2006. The Hon'ble High Court of Delhi in Laxmi Narayan Soni Vs. Roop Chand Soni 2002 99 DLT 186 while relying upon the judgment Soora Kulasekara Chetty Vs. Tholasingam Chetty AIR 1938 Madras 349 has held that the words "when the plaintiff is acquitted cannot be divorced from the words "or the prosecution is otherwise terminated". If the acquittal is Suit no. 288 of 2017 Page no. 10 of 12 followed by other proceedings the prosecution is terminated not by the acquittal but by the order passed in the subsequent proceedings".
21. In the light of this authoritative pronouncement although the plaintiff was acquitted from the court of Ld. ASJ on 23.04.1985 but the appeal filed by the State was dismissed on 23.02.2005, therefore, the period of limitation would start from the said date and the present case which came to be file on 18.02.2006 would thus be well within the period of limitation. Accordingly this issue is decided in favour of the plaintiff and against the defendant.
22. Issue no. 3:-
Whether the plaintiff in entitled for the damages, if so, for what sum? OPP.
AND Issue no. 4:-
Whether the plaintiff is entitled for the interest, if so, at what rate and for which period? OPP.
Issues no. 3 and 4 are taken up together. In view of my findings on issue no. 1 the suit for malicious prosecution is Suit no. 288 of 2017 Page no. 11 of 12 not maintainable against the LRs of Chandgi Ram, therefore, the question of award of damages and interest, if any, does not survive. Accordingly, these issues are decided in favour of the defendant and against the plaintiff.
23. Issue no. 5:-
Relief.
In view of the findings on issue no. 1 and additional issue, the suit of the plaintiff stands dismissed.
Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court ANKUR Digitally signed
by ANKUR JAIN
on 13th April, 2018
JAIN Date: 2018.04.13
16:38:00 +0530
(Ankur Jain)
Addl. District Judge (Central)-10
Delhi
Suit no. 288 of 2017 Page no. 12 of 12