Punjab Singh And Others v. Ramautar Singh And Others

Das, J.:— These two analogous appeals come before us from the judgment of the District Judge of Muzaffarpur and arise out of two suits, one instituted by Khub Lal, who is now dead and who is now represented in this appeal by the respondents, against the appellants for recovery of Rs. 2,521-2-3 as damages for malicious prosecution, and the other instituted by the appellants for recovery of specific articles of goods belonging to the appellants and alleged to have been carried away by the respondents or for the value thereof.

2. The appellants' case is that on 27th October, 1913 the respondents or some of them rushed into the house of the plaintiffs, broke open a chest and took away from it a box containing ornaments of gold and silver, a sum of Rs. 35 kept in a lota, as well as clothes, shawls, utensils etc., to the value of Rs. 200 and in respect of this occurrence, the appellants instituted a criminal case against Khub Lal Singh which ultimately ended in the acquittal of Khub Lal. The appellants thereafter instituted a suit being Suit No. 775 of 1915, for recovery of specific articles alleged to have been taken away by the respondents or for recovery of Rs. 200 as the value of these articles; and it is out of this suit that Second Appeal No. 1192 of 1917 comes before us.

3. After his acquittal in the criminal case Khub Lal brought a suit, being Suit No. 461 of 1914, against the appellants, for recovery of Rs. 2,521-2-3 as damages for malicious prosecution; and it is out of this suit that Second Appeal No. 1405 of 1918 comes before us. The Court of first instance disposed of both the suits by one judgment, and it dismissed Suit No. 461 of 1914, but granted a decree for Rs. 200 in Suit No. 775 of 1915. On appeal the lower appellate Court has set aside the judgment and decree passed by the Court of first instance and has dismissed appellants suit, No. 775 of 1915, and has decreed the respondents' suit, No. 461 of 1914 for Rs. 1,000.

4. I will first of all deal with Second Appeal No. 1405 of 1918. It appears that Khub Lal died after the dismissal of the suit by the Court of first instance, and the point that has been urged before us, and on which in my opinion the appellants are entitled to succeed, is that the cause of action died with Khub Lal and did not survive to his legal representatives. The learned District Judge, relying on the case of Krishna Behari Sen v. Corporation of Calcutta(1), held that the cause of action in this case did survive to the legal representatives, and he followed the procedure laid down in that case. In my experience, that case has never been followed subsequently in the Calcutta High Court and was expressly dissented from in the Madras High Court in the case of Gadigi Mareppa v. Firm of Manoadi Vannajee Vajanjee(2).

5. It seems to me that on a plain reading of Section 89 of the Probate and Administration Act, the appellants' contention must succeed. Now Section 89 of the Probate and Administration Act runs as follows:

“All demands whatsoever, and all rights to prosecute or defend any suit or other 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 granting it would be nugatory.”

6. The question for our determination is what effect must be given to the words

“or other personal injuries not causing the death of the party.”

“As a matter of ordinary construction” said Lord Bramwell in Grat Western Railway Co. v. Swindon & Cheltenham Ry. Co.(3),

“where several words are followed by a general expression as here which is as much applicable to the first and other words as to the last, that expression is not limited to the last, but applies to all.”

7. It is argued on behalf of the respondents that the general words, viz., “other personal injuries not causing the death of the party,” do not apply to defamation at all, but only apply to assault and therefore those general words can be read as ejusdem generis only with assault and not with defamation. With this contention I am wholly unable to agree. It seems to me that defamation is a personal injury not causing the death of the party, and in the same way it may be said in this case that malicious prosecution is a personal injury not causing the death of the party. It will be noticed that the words deliberately chosen by the legislature are “personal injury” and not “physical injury.” The words “personal injury” have a wider significance than the words “physical injury” and in my view they apply to all kinds of injury whether physical or otherwise. In my view, the general words in Section 89 of the Probate and Administration Act, must be read ejusdem generis with the word “defamation,” and when so read it is clear to my mind that Section 89 of the Probate and Administration Act, expressly excludes from its operation all causes of action in respect of personal injuries not causing the death of the party. It seems to me therefore that the cause of action for malicious prosecution did not survive to the legal representatives of Khub Lal. This view is supported by a long series of decisions of the Bombay High Court and the Madras High Court.

8. I hold therefore that the lower appellate Court clearly erred in allowing the legal representatives of Khub Lal to continue the action after his death.

9. I would therefore allow this appeal, set aside the judgment and decree of the lower appellate Court and restore the judgment and decree of the Court of first instance. The appellants are entitled to their costs throughout. I now come to Second Appeal No. 1192 of 1917.

10. The lower appellate Court excluded; from its consideration the evidence of Hur Nandan and having excluded that evidence from its consideration it came to the conclusion that it had not sufficient evidence before it to enable it to grant a decree in favour of the plaintiffs.

11. The sole question that we have to determine is: Was the lower appellate Court right in excluding from its consideration the evidence of Hur Nandan?

12. It appears that Hur Nandan was a member of a panchayat before which Khub Lal undertook to return the articles, looted. We are not concerned in this appeal with the weight to be attached to that evidence, but we are clearly of opinion that the lower appellate Court erred in excluding from its consideration the evidence of Hur Nandan. The lower appellate Court relied upon Section 23 of the Evidence Act. Section 23 provides that

“in civil cases no admission is relevant if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.”

13. It is conceded that there was no express condition that evidence of it was not to be given, but it is strongly urged that there are circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given. The learned counsel appearing on behalf of the respondents relies strongly upon para. 6 of the plaint. His argument is that the parties definitely agreed to settle their disputes, and his contention before us is that, if they agreed to settle their disputes once for all, they must impliedly have agreed among themselves that evidence of it shall not be given in any Court of law if unfortunately the settlement fell through. I cannot agree with this contention. The learned commentators of Woodroffe and Amir Ali's well known work on the Evidence Act say: “The rule” (that is to say the rule enunciated in Section 23 of the Evidence Act) “does not apply to admissions made before an arbitrator” and they cite English cases in support of their opinion. In the case before us the admission was made before an arbitrator, and if the learned commentators are right in the view which they have expressed in their well-known work on the Evidence Act, it is clear that the lower appellate Court erred in excluding this evidence from its consideration. The lower appellate Court relied upon the case of Meajan Matbor v. Alimuddin Mea(4). It seems to us that case is an authority in favour of the appellants. That was a suit for rent where there was a talk of settlement between the plaintiff's pleader and one of the defendants, and it was held that the mere fact of a conversation taking place when the parties were contemplating that a suit might be instituted is not in itself sufficient to prevent the conversation from being put in evidence. In the course of his judgment Mookerji, J., had to discuss a decision of Phear, J., in Mohabeer Singh v. Dhujjoo Singh(5). That learned Judge in the course of his judgment had said as follows:

“An offer of compromise, the essence of which is that the party making it is willing to submit to a sacrifice or to make a concession, is rejected though nothing at the time was expressly said respecting its confidential character only if it clearly appears to have been made on the faith of a pending treaty into which the party was led by the confidence of an arrangement being effected.”

14. Mr. Das on behalf of respondents argues very forcibly that there was a pending treaty between the parties and one of the parties was lei into making an admission by the confidence of an arrangement being effected and therefore that admission cannot be admitted in any proceeding between the parties. But Mookerji, J., commenting on the passage cited, said as follows:

“In the absence however of any express or strongly implied restriction as to confidence, an offer of compromise is clearly admissible and may be material as some evidence of liability although, as has been said, it may not be proper to inquire into the exact terms offered, as such an offer might have been made for the sake of purchasing peace and without any infection to admit liability to the extent of the claim.”

15. In my view the passage which I have just cited very completely establishes that an admission made before an arbitrator is admissible in evidence although it is for the Court dealing with facts to attach whatever weight it thinks proper to such an admission. I think therefore that the lower appellate Court was clearly in error in excluding the evidence of Hur Nandan from its consideration.

16. I would therefore allow this appeal set aside the judgment and decree of the lower appellate Court and remit the case to the lower appellate Court for its decision according to law. The appellant is entitled to the costs of this appeal. The costs incurred in the Court below will abide the result and will be disposed of by the lower appellate Court.

17. Coutts, J.:— I agree.

V.S/R.K

18. Appeals allowed.