M.VEERAPPA versus EVELYN SEQUEIRA & ORS.

Citation: [1988] 2 S.C.R. 606 · Decided: 13-01-1988 · Supreme Court of India · Bench: A.P. SEN · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
M. VEERAPPA 
v. 
EVELYN SEQUEIRA & ORS. 
JANUARY 13, 1988 
[A.P. SEN AND S. NATARAJAN, JJ.] 
Whether a suit for damages instituted against counsel abates on the 
dedlh of the plaintiff-Determination of the question. 
A tenant, Mr. Sequeira, wanted to prefer an appeal to the 
c Supreme Court against an order of the High Court, confirming an 
order of eviction passed against him in respect of his business premises, 
and engaged the appellant, an Advocate of the Supreme Court, to file 
the appeal. The Advocate/ Appellant filed a petition for Special Leave in 
the Supreme Court. The petition came up for hearing on 22.11.1971 
and was dismissed as withdrawn. The tenant thereupon filed a suit in 
D the Court of the District Munsiff against the appellant for damages and 
compensation on the allegations that the appellant had been negligent in 
rendering professional service and had misconducted himself by filing 
the appeal after considerable delay, giving misleading information 
about the filing of the appeal, and withdrawing the appeal instead of 
canvassing for its admission, and that as a result of the withdrawal of 
E the appeal, he was evicted from his business premises in consequence 
whereof he had incurred loss of income and business, besides suffering 
mental agony, worry and loss of reputation. The plaintiff claimed com-
pensation under various heads. The appellant filed a written statement, 
refuting the charges levelled against him in the plaint and disputing the 
plaintiff's right to seek damages. 
F 
During the pendency of the suit, the plaintiff died and his legal .~ 
representatives, the respondents in this appeal, filed a petition under 
Order XXII Rule 3(1) of the Code of Civil Procedure for their substitu-
tion in the suit for prosecuting the suit further. The appellant opposed 
the petition on the grounds inter alia that the suit abated on the death of 
G the plaintiff as per ahe maxim Actio Persona/is cum moritur persona. 
H 
The Trial Court upheld the objection and dismissed the suit as having 
abated, but the High Court held otherwise and declared the legal rep-
resentatives to be entitled to be impleaded and continue the suit. This 
appeal was filed by special leave against the order of the High Court. 
Dismissing the appeal, the Court, 
606 
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,... 
i 
M. VEERAPPA v. EVELYN SEQUEIRA 
607 
HELD: The High Court which, in deciding the Revision before it, 
followed Krishan Behari Sen v. Corporation of Calcutta, I.L.R. 31 
Calcutta 993, had not followed the correct ratio. Section 306 of the 
Indian Succession Act, 1925, which corresponded to section 89 of the 
Probate and Administration Act, 1881, set out the rights of the 
Executors and Administrators to continue actions of or against a 
deceased person. Section 306 was almost a re-production of section 89. 
In so far as the rights of a legal representative to proceed with a suit 
filed by a deceased plaintiff were concerned, Order XXII, Rules 1 and 
3(1) governed the matter. 161 IC, FI 
The maxim 'action persona/is cum moritur persona' had been 
applied not only to those cases where a plaintiff died during the 
pendency of a suit filed by him for damages for personal injuries 
sustained by him bot also to cases where a plaintiff died during 
the pendency of an appeal to the Appellate Court, be it the first 
Appellate Court or the second Appellate Court against the dismissal 
of the suit by the Trial Court and/or the first Appellate. Court, as 
the case might be. This was on the footing that by reason of the 
dismissal of the suit by the Trial Court or the first Appellate Court, 
as the case might be, the plaintiff stood relegated to his original 
position before the Trial Court. 16 i4G-H; 6 ISA] 
Though section 306 spoke only of executors and administrators. 
and Order XXII, Rule 3, Civil Procedure Code, set out the rights of the 
legal representatives to continue the proceedings instituted earlier hy a 
" 
deceased plaintiff if the right to sue survived, the Courts had taken the 
view that the legal representatives stood on par with the executors and 
~. administrators regarding their right to seek impleadment to continue 
\, 
the suit. There was unanimity of view among many High Courts regard-
._t 
ing the interp.retation to be given to the words "other personal injuries 
P' 
not causing the death of the party", occurring in section 306 of the 
Indian Succession Act. Preponderant view taken by several High Courts 
.i 
found acceptance with thi

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