H.S. Gambhir and Others vs Vam Dev Sharda and Others

M.S. Liberhan, J.—The deceased plaintiff brought a suit for damages against the defendants for causing injuries to his person which further resulted in loss of his business. The plaintiff died during the pendency of the suit. An application for being brought on record was preferred by the legal representatives of the deceased.

The right of the legal representatives to be brought on record was refuted on the ground that the suit was based on torts and the right to sue was personal, the right to sue did cot survive on the death of the plaintiff on the maxim of actio personalis cum moritur persona and the suit abated, as it was for damages for personal injuries.

The trial Court relying on M. Veerappa Vs. Evelyn Sequeira and Others, , found that the suit so far as it related to damages for personal injuries based on torts stood abated and the suit relating to damages to the business survived and, thus, brought the legal heirs of the deceased on record to the extent of the claim of the plaintiff for the loss regarding business of the deceased.

The petitioners assailed the findings of the learned trial Court. It was argued that M. Veerappa''s cast (supra) categorically lays down the principle of law as under :--

"......If the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other part would survive. If the suit claim is founded entirely on contract then the suit has to proceed to trial in its entirety and be adjudicated upon."

The learned counsel read out the plaint and emphatically argued that the entire suit is based on torts. It has not been stated anywhere in the suit as to what is the amount claimed on account of the loss of business.

The learned counsel for the respondents argued that there is no dispute that so far as the suit for damages based on torts for the personal injuries is concerned, it does abate but so far as it relates to the loss caused to the estate may be on account of tortious act, it does not abate. He referred to the observations made in the judgment cited above and stated that the Supreme Court has approved the view taken by the various High Courts to the effect that the legal representatives stand on par with executors and administrators Learned counsel further sought support from the judgment reported in Ratanlal Bhannalal Mahajan Vs. Baboolal Hajarilal Jain and Others, , wherein it was observed that in those cases where a suit for damages for defamation, assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff, the legal representatives ate entitled to be brought on record so far as it relates to loss caused to the estate of the deceased, because in such a case the cause of action becomes merged in the decree and the dacretal debt forms part of the plaintiff''s estate and appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend. The learned counsel laid emphasis on Paragraph 16 of the plaint, relevant portion of which runs as under :--

"The plaintiff has to close his business of Restaurant Divya-deep and had to remain absent from other business activities."

The learned counsel for the petitioners contended that the plaint has to be read as a whole. Not even a penny has been claimed for the loss of business. The entire plaint was read with specific reference to Paragraph 17 which is as follows :--

"That all the defendants have conspired together to cause great loss to the plaintiff and they have made grievous injuries and made an attempt of murderous assault on the plaintiff. On account of their activities with ulterior motives they have caused loss of more than Rs. 1,00,000/- but the plaintiff is claiming only Rs. 1,00,000/- along with interest at the rate of 18% per annum. All the defendants are jointly and severally liable to pay the amount of Rs 1,00,000/-. Defendant Nos. 3 to 8 have already been convicted by the Court of Additional Sessions Judge, Chandigarh."

I am of the view that the contention raised by the counsel for the petitioners has force. By reading the plaint, I am left with an impression that pithly the claim of the plaintiff was based solely on torts for the injuries caused to him. There is not even a remotest reference with respect to the loss caused to the business While interpreting the pleadings, a sentence cannot be curved out of it context here and there and then an attempt be made to fit in the case law. It is well accepted law of interpretation of pleadings the plaint has to be read as a whole. After reading the plaint as a whole I am left with no other alternative except to accept the contention of the petitioners that the suit is solely based on torts for the personal injuries suffered by the deceased and is squarely covered by the law laid down in M. Veerappa''s case (supra). The claim having been founded on torts, the suit undoubtedly abates in its entirety.

For the reasons recorded above, the Revision petition is accepted and the suit is dismissed as having abated. No right to sue survives to the applicants.

No order as to costs.