Full Judgment Text
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PETITIONER:
M. VEERAPPA
Vs.
RESPONDENT:
EVELYN SEQUEIRA & ORS.
DATE OF JUDGMENT13/01/1988
BENCH:
NATRAJAN, S. (J)
BENCH:
NATRAJAN, S. (J)
SEN, A.P. (J)
CITATION:
1988 AIR 506 1988 SCR (2) 606
1988 SCC (1) 556 JT 1988 (1) 120
1988 SCALE (1)107
ACT:
Whether a suit for damages instituted against counsel
abates on the death of the plaintiff-Determination of the
question.
HEADNOTE:
%
A tenant, Mr. Sequeira, wanted to prefer an appeal to
the 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22.11.1971 and was dismissed as withdrawn.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 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 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 compensation 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.
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 substitution 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 the plaintiff as per ahe maxim Actio Personalis
cum moritur persona. The Trial Court upheld the objection
and dismissed the suit as having abated, but the High Court
held otherwise and declared the legal representatives to be
entitled to be impleaded and continue the suit. This appeal
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was filed by special leave against the order of the High
Court.
Dismissing the appeal, the Court,
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 I and 3(1)
governed the matter. [611C, F]
The maxim ’action personalis 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 but 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 andlor 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
[614G-H; 615A ]
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 by 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 regarding the interpretation
to be given to the words "other personal injuries not
causing the death of the party", occurring in section 306 of
the Indian Succession Act. Preponderant view taken by
several High Courts found acceptance with this Court in
Melepurath Sankumari Ezhu Thassan v. Thekittl Geopalankutty
Nair, A.l.R. 1986 S.C. 411. It was on account of these
factors, the Court expressed its disapproval of the view
taken by the High Court in this case. [615E-F, H; 616A-B]
What now fell for consideration in this case was
whether the suit filed by the plaintiff was founded on torts
or contract. In view of the fact that this aspect of the
matter had not been considered by the Trial Court, the Court
did not think it proper to express any opinion one way or
the other as to whether the suit cause of action was founded
on torts
608
or contract. Having regard to the nature of the claim, the
Court was not able to comprehend how without any enquiry and
recording of evidence the Trial Court and the High Court had
proceeded on the basis that the suit claim was based only on
tortious liability though the two courts had reached
different conclusions about abatment of the suit. Since no
discussion had been made and no finding, rendered on this
question and since the Court could not render any finding on
the basis of the materials on record whether the suit was
based on the personal injuries sustained by the plaintiff or
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upon the loss suffered by the estate, the Court thought the
proper course would be to allow the judgment under appeal to
stand even though the Court did not approve the reasoning of
the High Court. The matter was left upon for the trial Court
to decide whether the suit was founded entirely on torts or
on contract or partly on torts and partly on contract and
deal with the matter according to law. If the entire suit
claim was founded on torts, the suit would undoubtedly
abate. If the action was founded partly on torts and partly
on contract, then, such part of the claim as related to
torts would stand abated and the other part would survive.
If the suit claim was founded entirely on contract, then,
the suit had to proceed to trial in its entirety and be
adjudicated upon. [616C; 617G-H; 618B-d]
A legal practitioner could not claim exemption from
liability to be sued in respect of any loss or injury
suffered by the client due to any negligence in the conduct
of his professional duties merely by reason of his being a
legal practitioner. Whether section 2(b) of the Legal
Practitioners (Fees) Act, 1926, would afford protection to a
legal practitioner from being sued for negligence by a
client if he only pleaded or agreed to plead, was a matter
for judicial determination in an appropriate case. For the
present, the Court did not express any opinion on the matter
except pointing out that there was a specific provision in
the Legal Practitioners (Fees) Act, 1926, saying that the
legal practitioners would also be liable to be sued by their
clients if they had been negligent in the performance of
their professional duties. In conclusion, since the Court
found that the question whether the suit had abated or not
could be answered only after the nature of the suit was
determined on the basis of the materials placed and the
evidence adduced by the parties, the appeal had to be
dismissed. The suit would stand restored to the file of the
trial Court for disposal in accordance with law in the light
of the guidelines given by the Court in this Judgment.
[621G-H;622A-C]
Krishna Behari Sen v. Corporation of Calcutta, ILR. 31
Calcutta, 993; Rustomji Dorabji v. W.H. Nurse, ILR 44 Madras
357; Motilal
609
Satyanarayan & Anr. v. Harnarain Premsukh & Anr, A.I.R. 1923
Bom. 408; Palaniappa Chettiar v. Rajah of Ramnad, I.L.R. 49
Madras 208; Irulappa v. Madhava, A.I.R. 1951 Madras 733;
Arnuchalam v. Subramanian, A.I.R. 1958 Madras 142; Gopal v.
Ram Chandra, ILR XXVI Bombay 597; Maniramlala v. Mtz. Chalti
Bai & Anr., I.L.R. 1938 Nagpur 280; Baboo v. Subanshi,
I.L.R. 1942 Nagpur 650; Baboolal v. Ramlal, A.I.R. 1952
Nagpur 408; Punjab Singh v. Ramautar Singh, A.I.R. 1920
Patna 841; Joginder Kaur v. Jagdish Singh, A.I.R. 1964 Patna
548; Ratanlal v. Baboo lal, A.I.R. 1960 Madhya Pradesh 200;
G. Jaya Prakash v. State, A.I.R. 1977 Andhra Pradesh 20;
D.K. Cassim & Sons v. Sara Bibi, I.L.R. XIII Rangoon 385;
Melepurath Sankunni Ezhuthassan v. Thekittil Geopalakutty
Nair, A.I.R. 1986 S.C. 411; Hedley Byrne & Co. Ltd. v.
Heller & Partners, [1963] 2 All. E.R. 575; Rondel v. W,
[1966] 3 All. E.R. 657; Rondel v. Worsley, [ 1967] 3 All.
E.R. 993; Heywood v. Wellers, [ 1976] 1 All. E.R. 300;
Midland Bank Trust Co. Ltd. & Anr v. Hett, Stubles & Kemp,
[1978] 3 All. E.R. 571 and Re Bell’s Indenture Bell & Anr.
v. Hickley & ors., [1980] 3 All. E.R. 425, referred to.
JUDGMENT:
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 131 of
1988.
From the Judgment and order dated 13.3.1986 of the High
Court of Karnataka in C.R.P. No. 1821 of 1984.
A.S. Nambiar, R.C. Kaushik and A.K. Sharma for the
Appelant.
S.S. Khanduja and Y.P. Dhingra for the Respondents.
The Judgment of the Court was delivered by
NATARAJAN, J. Leave granted.
The limited question falling for our deterrnination in
this appeal by special leave is whether a suit for damages
already instituted against a counsel has abated or not
consequent on the death of the plaintiff. G
We may now scan the facts. Pursuant to the High Court
of Karnataka confirming an order of eviction passed against
him in respect of his business premises, a tenant by name
Mr. Sequeira wanted to prefer an appeal to the Supreme
Court. For that purpose he met the appellant, who is an
advocate practising in the Supreme Court, H
610
on 14.6.197 1 at Mangalore during the latter’s visit to that
place and engaged him to file the appeal. The special leave
petition came up for hearing on 22.11.1971 and was
"dismissed as withdrawn". Mr. Sequeira then filed a suit
O.S. No. 255 of 1972 in the Court of the District Munsif,
Mangalore against the appellant for damages and
compensation. He alleged in the plaint that the appellant
had been negligent in rendering professional services and
had misconducted himself by filing the appeal after
considerable delay and giving misleading information about
the filing of the appeal and furthermore in withdrawing the
appeal instead of canvassing for its admission. He further
alleged that as a consequence of the appeal being dismissed,
he came to be evicted from his business premises and thereby
he had incurred loss of income as he had been unable to
secure an alternate place for running his business besides
suffering mental agony, worry and loss of reputation. The
plaintiff, therefore, claimed that the appellant was liable
to compensate him in a sum of Rs.20,000 towards the loss
sustained by him but he was however content to restrict the
amount to Rs.4,500. In addition he claimed a sum of Rs.
1,500 under three heads of Rs.500 each viz., (I) refund of
Rs.500 paid towards court fee and miscellaneous expenses,
(2) reimbursement of Rs.500 expended for engaging another
advocate to obtain a certified copy of the order of the
Supreme Court in the special leave petition and (3)
compensation towards wrongful retention of the case file by
the appellant and reimbursement of expenses incurred for
telephone and postal charges. Thus in all the suit was laid
against the appellant for a sum of Rs.6,000 by way of
damages and compensation besides costs etc.
The appellant entered appearance in the suit and filed
a written statement refuting the charges of negligence and
mis-conduct levelled against him by the plaintiff and also
disputing the plaintiff’s right to seek damages or
reimbursement of amounts from him under any of the heads set
out in the plaint.
During the pendency of the suit the plaintiff died and
his legal representatives, who are the respondents herein,
filed a petition under order XXII Rule 3(1) of the Code of
Civil Procedure seeking their substitution in the suit for
prosecuting the suit further. The appellant opposed the
application and contended that as the suit was one for
damages for personal injuries alleged to have been sustained
by the plaintiff, the suit abated on his death as per the
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maxim Actio Personalis cum moritur persona. The District
Munsif upheld the objection and dismissed the suit as having
abated but the High Court held otherwise and declared the
legal representatives to be entitled to
611
get impleaded and continue the suit. The learned single
judge who allowed the Revision has taken the view that
Krishna Behari Sen v. Corporation of Calcutta, ILR 31
Calcutta, 993, sets out the correct ratio and hence he was
following it in preference to the ratio laid in Rustomji
Dorabji v. W.H. Nurse, ILR 44 Madras, 357 and Motilal
Satyanarayan and Anr. v. Harnarain Premsukh & Anr., AIR 1923
Bombay 408. The said order of the learned single judge is
urlder challenge in this appeal.
Even at the threshold of the judgment we may say that
the ratio followed by the High Court is not a correct one.
Section 306 of the Indian Succession Act, 1925 which
corresponds to Section 89 of the Probate and Administration
Act, 1881, sets out the rights of Executors and
Administrators to continue actions of or against a deceased
person. Section 306 which is almost a re-production of
Section 89 in the earlier Act reads as follows:
"306. Demands and rights of action of or against
deceased survive to and against executor or
administrator.
All demands whatsoever and all rights to prosecute
or defend any action or special proceeding
existing in favour of or against a person at the
time of his decease, survive to and against his
executors or administrators except causes of
action for defamation, assault as defined in the
Indian Penal Code, or other personal injuries not
causing the death of the party; and except also
cases where, after the death of the party, the
relief sought could not be enjoyed or if granted
it would be nugatory . "
In so far as the rights of a legal representative to proceed
with a suit filed by a deceased plaintiff is concerned,
order XXII Rules I and 3(1) govern the matter. They read as
under:
"1. The death of a plaintiff or defendant shall
not cause the suit to abate if the right to sue
survives.
3.(1) Where one of two or more plaintiffs dies and
the right to sue does not survive to the surviving
plaintiff or plaintiffs alone, or sole plaintiff
or sole surviving plaintiff dies and the right to
sue survives, the Court on an application made in
that behalf, shall cause the legal representative
of the deceased plaintiff to be made a party and
shall proceed with the suit."
612
These provisions of law have come up for consideration in a
number of cases before several High Courts. The controversy
in all the cases either under Section 89 of the Probate and
Administration Act 1881 or under Section 306 of the Indian
Succession Act 1925 centred round the meaning to be given to
the words "other personal injuries not causing the death of
the party". Barring the Calcutta High Court and that too in
one reported case only and the Rangoon High Court in one
decision, other High Courts have uniformly taken the view
that the words "personal injuries" 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
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not with the word "assault" alone. It would suffice for our
purpose if we set out the reasons given in the Full Bench
decision of the Madras High Court in Rustomji Dorabji v.
W.H. Nurse, (supra) and merely give the citations of the
other decisions where the same view has been taken. In
Rustomji Dorabji v. W.H. Nurse, Coutts Trotter, J. speaking
for himself and Ayling, J. set out the law as follows.
"We are therefore driven to the conclusion that
the Act must be supposed to have envisaged a
logically coherent class of causes of action, and
that result can only be achieved by construing
"personal injuries" as meaning not "injuries to
the body" merely, but injuries to the person in
Blackstone’s sense, other than those which either
cause death or tangible affect the estate of the
deceased injured person or cause an accretion to
the estate of the deceased wrong doer. In effect,
we think that the words which we have to construe
are ejusdem generis not merely with the last
preceding word "assault", but with the two
preceding words "defamation" and "assault".
(Emphasis supplied.)
Kumaraswamy Sastri, J., the third judge in the Full Bench,
in his concurring judgment gave his reasons as under:
"If the words were simply "all personal injuries
not causing the death of the party" and omitted
defamation or assault, it may be argued that
personal meant only physical and that causes of
action for defamation and other similar injuries
survived. The legislature took two types of
personal injuries, one physical and the other not,
and used them by way of illustration of what it
meant to exclude. In this view, the words "other
personal injuries not causing the death of
613
the party" must be read with "defamation" and
"assault".
There has been a conflict of authority on the
question referred. In Punjab Singh v. Ramautar
Singh, (!) it was held by the Patna High Court
that the words "other personal injuries not
causing the death of the party’ in Section 89 of
the Act are ejusdem generis not only with assault
but also with defamation and include malicious
prosecution. The same view has been held by the
Madras High Court in Gandhiji Mareppa v. Firm of
Marwadi Vannajee, (2) and Marwadi Mothiram v.
Samnaji, (3) A contrary view was taken in Krishna
Behari Sen v. The Corporation of Calcutta, (4)
where the learned Judges differed from Justice
Henderson, the trial Judge, and held that to use
the words other personal injuries not resulting in
death in connexion with an action for defamation
or malicious prosecution would be straining the
language used by the legislature and placing on it
an unnatural and forced construction. In Punjab
Singh v. Ramautar Singh, (I) Das, J., who was a
member of the Calcutta Bar for several years
observes that in his experience the case has never
been followed subsequently in the Calcutta High
Court.
I would follow Punjab Singh v. Ramautar Singh, (I)
and Marwadi Mothiram v. Samnaji, (2) and hold that
a suit for damages for malicious prosecution
abates."
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Not only has this view been consistently followed by
the Madras High Court in subsequent decisions but the same
view has been taken by several other High Courts as may be
seen from the following citations:
Madras High Court, Palaniappa Chettiar v. Rajah of
Ramnad, ILR 49 Madras 208; Irulappa v. Madhava, AIR
1951 Madras 733; Arnuchalam v. Subramanian, AIR 1958
Madras 142; Bombay High Court, Gopal v. Ram Chandra,
ILR XXVI Bombay 597; Motilal v. Harnarayan, (supra)
Nagpur High Court, Maniramlala v. Mt. Chalti Bai &
Anr., ILR 1938 Nagpur 280; Baboo v. Subanshi, ILR 1942
Nagpur 650; Baboolal v. Ramlal, AIR 1952 Nagpur 408;
Patna High Court, Punjab Singh v. Ramautar Singh, AIR
1920 Patna 841; Jogindra Kaur v. Jagdish Singh, AIR
1964 Patna 548; Madhya Pradesh High Court, Ratanlal v.
Baboolal, AIR 1960 Madhya Pradesh 200;
614
Andhra Pradesh High Court, G. Jayaprakash v. State, AIR
1977 Andhra Pradesh 20.
As against the preponderant view taken by several High
Courts, a Full Bench of the Calcutta High Court alone took a
contrary view in Krishna Behari Sen v. Corporation of
Calcutta, (supra). Maclean, C.J. speaking for the Bench held
that the words. "personal injuries not causing the death of
the party" if accorded their natural and ordinary meaning
appear to refer to physical injuries to the person which do
not cause death. As has been pointed out by Das, J. in
Punjab Singh v. Ramautar Singh, (supra) the ratio in Krishna
Behari Sen’s, case had not been followed subsequently by the
Calcutta High Court itself in any other case. The view taken
by the Calcutta High Court found solitary acceptance only in
a decision of the Rangoon High Court in D.K. Cassim & Sons.
v. Sara Bibi, ILR XIII Rangoon 385. It is therefore clear
that the contrary view taken by the Calcutta High Court is
against the weight of judicial pronouncements by other High
Courts.
In a slightly different context the matter came to be
considered by this Court in Melepurath Sankunni Ezhuthassan
v. Thekittil Geopalankutty Nair, AIR 1986 SC 411. A
plaintiff’s suit for damages for defamation was decreed by
the Appellate Court but dismissed by the High Court in
Second Appeal. There was an appeal to this Court by the
plaintiff by special leave and during its pendency the
plaintiff died. This Court declined to allow the legal
representatives of the plaintiff to come on record and
prosecute the appeal on the ground that by reason of the
dismissal of the suit by the High Court, the plaintiff stood
relegated to his original position and, therefore, the
proceedings abated on his death. The decision pointed out
that the position would have been different if the plaintiff
had a subsisting decree in his favour because then the cause
of action would get merged in the decree and the decree
would form part of the estate of the deceased which his
legal representatives are entitled to uphold.
The maxim ’actio personalis cum moritur persona’ has
been applied not only to those cases where a plaintiff dies
during the pendency of a suit filed by him for damages for
personal injuries sustained by him but also to cases where a
plaintiff dies 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
may be. This is on the footing that by reason of the
dismissal of the suit by the
615
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Trial Court or the First Appellate Court as the case may be,
the plaintiff stands relegated to his original position
before the Trial Court. Vide the decisions in Punjab Singh
v. Ramautar Singh, (supra), Irulappa v. Madhva, (supra),
Maniramlala v. Mt. Chalti Bai & Anr. (supra), Baboolal v.
Ram Lal, (supra) and Melepurath Sankunni Ezhuthassan v.
Thekittil Gopalankutty Nair, (supra). In Palaniappa Chettiar
v. Rajah of Ramnad (supra), and Motilal v. Harnarayan,
(supra) it was held that a suit or an action which has
abated cannot be continued thereafter even for the limited
purpose of recovering the costs suffered by the injured
party. The maxim of actio personalis cum moritur persona has
been held inapplicable only in those cases where the injury
caused to the deceased person has tangibly affected his
estate or has caused an accretion to the estate of the wrong
doer vide Rustomji Dorabji v. W.H. Nurse, (supra) and
Ratanlal v. Baboolal, (supra) as well as in those cases
where a suit for damages for defamaton, assault or other
personal injuries sustained by the plaintiff had resulted in
a decree in favour of the plaintiff because in such a case
the cause of action becomes merged in the decree and the
decretal debt forms part of the plaintiff’s estate and the
appeal from the decree by the defendant become a question of
benefit or detriment to the estate of the plaintiff which
his legal representatives are entitled to uphold and defend
(vide Gopal v. Ramchandra, (supra) and Melepurath Sankunni
v. Thekittil, (supra).
Though Section 306 speaks only of executors and
administrators and order XXII Rule 3 Civil Procedure Code
sets out the rights of legal representatives to continue the
proceedings instituted earlier by a deceased plaintiff if
the right to sue survives, the courts have taken the view
that the legal representatives stand on par with executors
and administrators regarding their right to seek impleadment
in order to continue the suit. We may in this connection
only quote the following passage occurring in Melepurath
Sankunni’s case (supra).
"Section 306 further speaks only of executors
and administrators but on principle the same
position must necessarily prevail in the case of
other legal representatives, for such legal
representatives cannot in law be in better or
worse position than executors and administrators
and what applies to executors and administrators
will apply to other legal representatives also."
Thus it may be seen that there is unanimity of view
among many High Courts in the country regarding the
interpretation to be given to
616
the words "other personal injuries not causing the death of
the party" occurring in Section 306 of the Indian Succession
Act and that the contrary view taken by the Calcutta &
Rangoon High Courts in the solitary cases referred to above
has not commended itself for acceptance to any of the other
High Courts. The preponderant view taken by several High
Courts has found acceptance with this Court in its decision
in Melepurath Sankunni Ezhuthassan’s case. It is on account
of these factors we have expressed our disapproval at the
outset itself of the view taken by the High Court in this
case.
What now falls for consideration is whether the suit
filed by the plaintiff was founded on torts or on contract.
Mr. Kaushik, learned counsel for the appellant, in all
fairness, did not contend that the words "other personal
injuries" must be read narrowly-i.e., ejusdem generis only
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with assault and other physical injuries not resulting in
the death of the party. His argument however was that the
plaintiff’s suit is wholly founded on torts because it
related to the damages sought for by the plaintiff for
alleged loss of reputation, mental agony, worry etc. and
hence the suit is based only on the personal injuries of the
plaintiff and it inevitably abated on his death. On the
other hand, Mr. Khanduja, counsel for the respondents,
contended that the suit is not really founded on torts but
is founded on contract and there had been a breach of the
conditions of engagement by the appeal being withdrawn
contrary to instructions, not to speak of the delay in the
filing of the appeal. By reason of the breach of the
conditions of engagenment, the plaintiff had been evicted
and put to loss and, therefore, the suit for damages really
pertained to the loss suffered by the estate of the
plaintiff and the said loss could well be claimed by the
legal representatives after the death of the plaintiff. It
was further urged by him that the suit amount consisted of
claims under different heads and that while Rs.4,500 had
been claimed by way of compensation for the monetary loss
sustained by the plaintiff’s estate, the claims relating to
Rs.1,500 under three different heads were also amounts due
to the estate as expenditure suffered by it and hence it was
not open to the appellant to contend that the suit was only
for personal injuries sustained by the plaintiff and
therefore it abated on his death.
In view of the fact that this aspect of the matter has
not been considered by the Trial Court or the High Court, we
do not think it proper to express any opinion one way or the
other as to whether the suit cause of action is founded on
torts or on contract. Since a copy of the plaint has not
been furnished by either party we can only refer to the
summary of the plaint contained in the order of the District
617
Munsif. The relevant portion reads as follows. A
"at a later stage, he filed the petition and
withdrew it; the Special Leave Petition was
dismissed as withdrawn; defendant did not inform
the plaintiff well in time, plaintiff got
suspicion over the attitude of the defendant, he
engaged another counsel in the Supreme Court and
obtained certified copies of the petitioner’s
application and order of the Supreme Court on the
application filed by the defendant; even after
several requests, defendant has not returned the
file; defendant incurred Rs.500 to obtain
certified copies; on account of the misconduct of
the defendant, plaintiff has suffered untold
mental worry, agony, and loss of reputation;
plaintiff was evicted from the shop premises
situated at Hampankatta; he has not been able to
secure a similar place for continuing his
business; the defendant is liable to pay the
plaintiff an amount of Rs.500 being the loss
incurred by him to engage the service of another
advocate to obtain the certified copies of the
petition and application filed by the defendant in
the Supreme Court; that apart the defendant is
liable to compensate the plaintiff to the extent
of another sum of Rs.500 as the defendant has not
renurned the records that were entrusted to the
defendant by the plaintiff and for the charges
incurred by the plaintiff in sending telegrams, or
correspondences or for trunk phone calls; for want
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of suitable place for continuing the business of
the plaintiff, the plaintiff has suffered damage
or loss of over Rs.20,000 but the plaintiff
restricts the claim to Rs.4,500 in this behalf.
The plaintiff is entitled to be compensated by the
defendant to the extent of Rs.6,000 as stated
above, viz. Rs.500, Rs.500, Rs.500, Rs.4,500 for
loss of damage sustained by the plaintiff and the
defendant is liable to compensate the plaintiff in
this respect as he has not done his duty which he
owed towards the plaintiff" (underlining by us)
Having regard to the nature of the claim we are not
able to comprehend how without any enquiry and recording of
evidence the Trial Court and the High Court have proceeded
on the basis that the suit claim is based only on tortious
liability though the two Courts have reached different
conclusions about the abatement of the suit. The learned
counsel for the respondent placed reliance upon the summary
of the averments in the plaint set out above and argued that
the
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plaintiff had suffered loss of over Rs.20,000 due to the
closure of the business and hence the restricted claim of
Rs.4,500 is really towards loss suffered by the estate and
not a claim made on the basis of the loss of reputation,
mental agony, worry etc. suffered by the plaintiff. He
further stated that the claim of Rs.1,500 under three heads
of Rs.500 each also related to the loss suffered by the
estate of the deceased and hence the suit has to proceed for
the entire suit claim. Since no discussion has been made and
no finding has been rendered on this question and since we
can not render any finding on the basis of the materials on
record whether the suit is based on the personal injuries
sustained by the plaintiff or upon the loss suffered by the
estate, we think the proper course would be to allow the
judgment under appeal to stand even though we do not approve
the reasoning of the High Court and dismiss the appeal. We
leave the matter open for the Trial Court to decide whether
the suit is founded entirely on torts or on contract or
partly on torts and partly on contract and deal with the
matter according to law. 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.
Before concluding the judgment, it would not be out of
place for us to refer to some English decisions and to the
relevant provisions in the Legal Practitioners Act, 1879 and
the Legal Practitioners (Fees) Act, 1926 regarding the
liability of counsel to pay damages to their clients for
breach of duty or negligence. In England a distinction was
made between barristers and other professional men and for a
long time it was in usage that a barrister could not be sued
by a client for negligence or breach of duty because a
barrister’s services were deemed to be gratuitous and
therefore he could not sue or even make a contract for his
fees with a client or with a solicitor who represented the
client and correspondingly a barrister could not be sued by
a client for breach of duty or negligence. The position is
summarised by Prof. Winfield in all the editions of his book
on Torts from 1937 onwards as under:
"The reason for this exemption is that in theory
his services are gratitous, and although that, by
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itself, is not a sufficient ground for preventing
a legal duty from arising in other -
circumstances, the rule with regard to a barrister
is inveterate, whatever be its justification."
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The assumption, however, suffered a setback when the
House of Lords enunciated a general principle in Hedley
Byrne & Co. Ltd. v. Heller & Partners, [1963] 2 All E.R.
575. The principle has been enunciated in the speech of Lord
Morris of Borth-Y-Gest as under:
"If someone possessed of a special skill
undertakes, quite irrespective of contract, to
apply that skill for the assistance of another
person who relies on such skill, a duty of care
will arise.
By reason of this decision, the Court of Appeals in
Rondel v. W., [ 1966] 3 All E.R. 657 and the House of Lords
in Rondel v. Worsley, [ 1967]3 All E.R. 993 had to rest the
immunity of a barrister from being sued for professional
negligence in the conduct of a cause on grounds of public
policy. The facts in Rondel’s case were that he was charged
for having caused grievous bodily harm to one Manning. He
was not given legal aid but after the case had proceeded for
sometime, he was afforded the facility of a "Dock Brief" and
he chose a barrister by name, Mr. Worsley to act for him.
The case eventually ended in conviction and the conviction
was confirmed by the Appellate Court and Rondel underwent
the sentence. Nearly six years later he issued a writ
against Mr. Worsley claiming damages for alleged
professional negligence in the conduct of his duty. The writ
was dismissed on the ground that an action against a
barrister cannot be maintained on grounds of public policy
for alleged negligence on his part in the conduct of the
case especially when the action would amount to seeking a
review of the correctness of the conviction awarded to
Rondel in the earlier proceedings.
In Heywood v. Wellers, [1976] 1 All E.R. 300 the
plaintiff was held entitled to recover damages from the
defendant firm of solicitors for the mental distress which
she had suffered as a result of the molestation suffered by
the plaintiff consequent on the solicitor’s negligent
failure to enforce the injunction obtained against one
Reginald Marrion. In that case, the plaintiff instructed a
firm of solicitors to apply for an injunction to restrain
one Reginald Marrion from molesting her. The solicitors
obtained an interim injunction on 27th February but when the
defendant again molested the plaintiff on 28th April in
breach of the injunction, they failed to enforce the
injunction by bringing the defendant before the Court. As a
result of the failure to enforce the injunction, the
plaintiff was again molested by Marrion on 25th May and on
8th November. She suffered mental distress in consequence of
the molestation committed on those dates. In an action
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brought by her against the firm of solicitors, it was held
that she was entitled to recover damages as well as the
costs incurred by her from the firm of solicitors
In Midland Bank Trust Co. Ltd. & Anr. v. Hett, Stubbs &
Kemp, [1978] 3 All E.R. 571 a firm of solicitors was sued
for damages for their failure to register a formal agreement
as a consequence of which the plaintiff could, not enforce
his option under the agreement to purchase the freehold
reversion of a farm at a stated price within a period of ten
years as the estate had been conveyed to another. It was
held that the solicitors were liable to the plaintiff in
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tort as they had failed to exercise due care and skill on
which they knew the client would place reliance and because
of the duty they owed to the client not to injure him by
failing to do that which they had undertaken to do.
Re Bell’s Indenture Ben & Anr. v. Hickley & ors.,
[1980] 3 All . R. 425 is yet another case where a solicitor
was held liable to replace the misappropriated money of his
client as a constructive trustee. What happened in that case
was that money was paid into the firm’s client account in
the name of express trustees. The express trustees
misappropriated the money with the solicitors knowledge. It
was held that the solicitor was liable to replace the money
as a constructive trustee.
In India, the matter is governed by the Legal
Practitioners (Fees) Act, 1926. In the Legal Practitioners
Act, 1879 a legal practitioner has been defined as "an
advocate, vakil or attorney of any High Court, a pleader,
mukhtar or revenue agent." The preamble to the Legal
Practitioners (Fees) Act, 1926 reads as follows:
"An Act to define in certain cases the rights of
legal practitioners to sue for their fees and
their liability to be sued in respect of
negligence in the discharge of their professional
duties. "
Section 2 to 5 are important and hence they are extracted
below:
Section 2: For the purposes of this Act, unless
there is anything repugnant in the subject or
context,
(a) "legal practitioner" means a legal
practitioner as defined in section 3 of the Legal
Practitioners Act, 1879; And
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(b) a legal practitioner shall not be deemed to
"act" if he A only pleads, or to "agree to act" if
he agrees only to plead.
3. Any legal practitioner who acts or agrees to
act for any person may by private agreement settle
with such person the terms of his engagement and
the fees to be paid for his professional services.
4. Any such legal practitioner shall be entitled
to institute and maintain legal proceedings for
the recovery of any fee due to him under the
agreement, or, if no such fee has been settled, a
fee computed in accordance with the law for the
time being in force in regard to the computation
of the costs to be awarded to a party in respect
of the fee of his legal practitioner.
5. No legal practitioner who has acted or agreed
to act shall, by reason only of being a legal
practitioner, be exempt from liability to be sued
in respect of any loss or injury due to any
negligence in the conduct of his professional
duties."
reading of these sections would go to show that any
legal practitioner who acts or agrees to act for any person
may settle with the said person the terms of his engagement
and the fee to be paid for his professional services; that
the legal practitioner will be entitled under law institute
and maintain legal proceedings against his client for the
recovery of any fee due to him under the agreement or as per
the costs taxed by the Court where there has been no pre-
settlement of the fee; and that no legal practitioner who
has acted or agreed to act shall merely by reason of his
status as a legal practitioner be exempt from liability to
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be sued in respect of any loss or injury due to any
negligence in the conduct of his professional duties.
Therefore, a legal practitioner cannot claim exemption
from liability to be sued in respect of any loss or injury
suffered by the client due to any negligence in the conduct
of his professional duties merely by reason of his being a
legal practitioner. As to whether Section 2(B) will afford
protection to a legal practitioner from being sued for
negligence by a client if he only pleads or agrees to plead
is a matter for judicial determination in an appropriate
case if an occasion arises for it. For the present we are
not expressing any opinion on the matter except to point out
that there is a specific provision in the Legal
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Practitioner’s (Fees) Act setting out that legal
Practitioners would also be liable for being sued by their
clients if they have been negligent in the performance of
their professional duties. The nature of the controversy in
this appeal, as we have stated at the outset itself, does
not pertain to these questions.
In conclusion, since we find that the question whether
the suit has abated or not can be answered only after the
nature of the suit is determined on the basis of the
materials placed and the evidence adduced by the parties,
the appeal has to be dismissed. The suit will stand restored
to the file of Trial Court for disposal in accordance with
law in the light of the guidelines given by us. Accordingly
the appeal is dismissed.
In the circumstances of the case, the parties are
directed to bear their respective costs.
S.L. Appeal dismissed.
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