Sheikh Shamshad Ahmad and Others vs Union of India (UOI) and Another

S.K. Dhawan, J.—One Abdul Salam, father of the applicants, instituted suit No. 294 of 1971 against the Union of India and the Military Estates Officer opposite parties 1 and 2, respectively. The plaint case, inter alia, was that some time in 1935 the Defendants in the suit had granted a lease in favour of the Plaintiff with respect to certain land for a period of 30 years, that after the expiry of the period of 30 years the period of the lease was extended by one year from time to time and finally on 22-3-1970, the Defendants informed the Plaintiffs that the lease will not be renewed in future. Faced with that situation, the Plaintiff instituted the said suit praying, inter alia, that the Defendants may be directed to execute a lease in his favour for a fresh period of 30 years. Thus, in the suit, the main relief claimed by the Plaintiff was the issue of a mandatory injunction directing the Defendants to execute a fresh lease in his favour for another period of 30 years.

During the pendency of the suit, Abdul Salam died. The applicants in their capacity as heirs and legal representatives of Sri. Abdul Salam made an application in the suit for being substituted in place of Sri. Abdul Salam. On 6-2-1982 the Civil Judge, Bulandhshar rejected the said application and held that the entire suit had abated. The reasoning given by the Civil Judge was that the action taken by Sri. Abdul Salam in instituting the said suit was a personal one and had died with him (Abdul Salam). The instant revision is directed against the said order passed by the Civil Judge.

Though in his order the Civil Judge has not made any mention of the maxim "actio personalis moritur cum personna" yet it appears that his order is based on that maxim. In Order XXII Rule 1 of the CPC the word "right to sue" means the right to seek relief. It is well know, the normal rule is that the right to sue survives. The application of the aforementioned maxim is an exception to the normal rule. In the present case it is not in dispute that the nature of the possession of Sri. Abdul Salam over the land in dispute was a juridical one. Admittedly, Sri. Abdul Salam had entered into possession over the land in dispute on the basis of a valid lease granted to him by the opposite parties. It is also not in dispute that after the expiry of the said lease the same was renewed every year from time to time. Therefore, Sri. Abdul Salam was not a rank trespasser. In the words of Hon''ble Chagla, J. (as he then was) "An erstwhile tenant can never become a trespasser in India" (See K.K. Verma and Another Vs. Union of India and Another, . If Sri. Abdul Salam was not a trespasser during the pendency of the suit, surely the suit instituted by him could not die a natural death upon his demise. It is trite that the said maxim has no application in cases arising out of contract, quasi contract and fiduciary relationship, etc. In Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, in paragraph 14 it was observed..."The maxim actiopersonalis mortiur cum persona" a personal action dies with the person, has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory...."

It cannot be said that the applicants in their capacity as heirs and legal representatives of Sri. Abdul Salam will not be in a position to enjoy the relief claimed in the suit, if ultimately granted by the Court. Likewise the relief ultimately granted against the Defendants will not become nugatory from the point of view of the applicants.

From the foregoing discussion it is clear that the view taken by the learned Civil Judge is patently erroneous and deserves to be set aside. I, therefore, allow the instant revision, set aside the order dated 16-3-1982 passed by the Civil Judge, Bulandshahr, direct him to substitute the applicants in the suit in place of their father Sri. Abdul Salam and dispose of the same in accordance with law. The applicants are entitled to their costs.