This court held that a suit for permanent injunction abated upon the death of the defendant because the cause of action was personal and the licence was not heritable. Applying actio personalis moritur cum persona, the appeal is disposed without substantive adjudication.
Second Appeal disposed; no order as to costs; connected M.P. closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.03.2022
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Second Appeal No.1383 of 2013 and M.P.No.1 of 2013
A.Ganesan ..Appellant/Appellant/Plaintiff
-Vs-
1.Javeed Hussain (died) 2.The Commissioner Vellore Municipality Officers Line, Vellore-1. ...2nd Respondent/2nd Defendant/2nd Defendant
3.Sharifunnisa
(R3 to R5 impleaded vide order in CMP Nos.9157, 9158 and 9160 of 2021 dated 12.01.2022 by TKRJ) ... Respondents
Prayer : Second Appeal under Section 100 of C.P.C., against the judgment and decree dated 22.11.2013 made in A.S.No.14 of 2012 on the file of Subordinate Judge, Vellore confirming the judgment and decree dated 22.12.2011 made in O.S.No.763 of 2000 on the file of Principal District Munsif, Vellore.
For Appellant : Mr.C.P.Sivamohan
For Respondents : Mr.D.Gopal for R2 Mr.Jaseem Mudassar Ali – for RR 3 to 5
The plaintiff is the appellant in this Second Appeal.
The case of the plaintiff is that the first defendant was given the licence by the second defendant Municipality to run a flower shop. The plaintiff seems to have entered into an agreement with the second defendant on 17.02.1996, marked as
Ex.A.1. As per this agreement, the plaintiff claims to have been put in possession of the shop and he had paid the consideration of nearly Rs.1,00,000/-. The further case of the plaintiff is that the defendant agreed to effect the change of name for the shop by making an application to the second defendant Municipality, in the name of the plaintiff. Till this process is completed, the plaintiff had agreed to pay the monthly rent to the second defendant Municipality in the name of the first defendant.
cannot be acted upon and there was absolutely no proof to show that the plaintiff is in possession and enjoyment of the suit property. The Courts below also took into consideration the evidence of P.W.1 and questioned the manner in which the possession was taken over by the plaintiff. On a cumulative consideration of the oral and documentary evidence, both the Courts held that the plaintiff did not establish legal possession in the suit property and that he will not be entitled for possession when the shop was allotted in the name of the first defendant by the second defendant Municipality. The Courts below also found that the plaintiff was claiming for possession in a property which admittedly belongs to the second respondent Municipality.
“14. Normally personal action dies with person but this principle has application to limited kinds of causes of actions. In Girijanandini Devi v. Bijendra Narain Choudhary AIR 1967 SC 1124, this Court while considering the question whether the decree for account can be passed against the estates, also considered the maxim actio personalis moritur cum persona and observed that the postulation that personal action dies with the person, has a limited application. It
operates in a limited class of actions, such as actions for damages, 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. Death of the person liable to render the account for property received by him does not therefore affect the liability of his estate.
...... ..... 26. In our considered opinion the right which had been adjudicated in the suit in the present matter and the findings which have been recorded as basis for grant of injunction as to the disputed property which is heritable and partible would enure not only to the benefit of the legal heir of decree-holders but also would bind the legal representatives of the judgment-debtor. It is apparent from section 50 CPC that when a judgment- debtor dies before the decree has been satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular kind of decree. Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. The maxim actio personalis moritur cum persona is limited to certain class of cases as indicated by this Court in Girijanandini Devi v. Bijendra Narain Choudhary (supra) and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by LRs. of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives. No doubt, it is true that a decree for injunction normally does not run with the land. In the absence of statutory provisions it cannot be enforced. However, in view of the specific provisions contained in section 50 CPC, such a decree can be executed against legal representatives.”
first defendant to run the flower business in a shop. Such a licence comes to an end on the death of the allottee and it is not a heritable right for the legal representatives to inherit such a right of licence immediately on the death of the first defendant. In such circumstances, the allegation that was made by the plaintiff should confine itself to the first defendant and on the death of the first defendant, the cause of action also automatically dies and thereafter there is nothing much that could be decided in the case. This will apply mostly in cases where relief of permanent injunction is involved and it is relatable to the individual acts of a person, which gave rise to the filing of the suit.
Sd/-
Assistant Registrar(CS-IX)
// True Copy //
Sub Assistant Registrar
KST
To
+1cc to Mr.D.Gopal, Advocate SR.No.19134
+1cc to Mr.M.J.Jaseem Mohamed, Advocate SR.No.19225
+1cc to Mr.C.P.Sivamohan, Advocate SR.No.19249
S.A.No.1383 of 2013
RGN(CO) CB(21/04/2022)
3 issues framed by the court
Whether the cause of action for permanent injunction survives the death of the first defendant under the principle actio personalis moritur cum persona.
Whether the principle actio personalis moritur cum persona applies to a licence granted by a Municipality which is not a heritable right.
Whether the Second Appeal requires detailed examination of findings or can be disposed on the ground that the cause of action no longer survives.
Colour shows how this judgement treated each authority
Prabhakara Adiga vs Gowri And OthersRelied on¶27
(2017) 2 CTC Page 208
Girijanandini Devi v. Bijendra Narain ChoudharyRelied on¶28
(1967) 1 SCC 1124 · Who else cites this
2 provisions across 1 enactments
A. Ganesan
Javeed Hussain legal representatives
The Commissioner Vellore Municipality Officers Line, Vellore
Sharifunnisa
Showkathullah
Najmunissa
N. Anand Venkatesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
