1. This is a plaintiff's appeal against a reversing decree dismissing his suit for damages for defamation.
2. During the pendency of the appeal the sole respondent died.
3. On an application being made to bring on record his legal representatives they objected to the substitution on the ground that the cause of action did not survive the defendant.
4. It is a well-established rule of common law that if an injury were done either to the person or to the property of another, for which unliquidated damages only could be recovered in satisfaction, the action dies with the person to whom or by whom the wrong was done except where a remedy is given to or against the personal representatives by the statute law. Several exceptions were made by statute law in England to the rule that death extinguishes liability in tort. The general rule of common law still applies to causes of action for defamation, seduction, inducing one's spouse to live with another, and to claims for damages for adultery.
5. The law of torts as administered in England is administered in this State under section 6 of the Central Provinces Laws Act as a rule of justice, equity, and good conscience. The English law must be used as basis except when found unsuitable to local conditions. ‘Baboo v. Subanshi’. I.L.R (1942) Nag. 650. In this case of damages for seduction it was held that the right to sue did not survive the plaintiff. ‘Maniramlala Baliramlala v. Mt. Chattibai’, A.I.R 1937 Nag. 216 was a case of damages for malicious prosecution. The respondent died during the pendency of plaintiff's second appeal. It was held that the appeal partakes of the character of the suit and the right to sue would not survive the death of either party. In ‘Josiam Tiruvengada Chariar v. Swami Iyengar’, 34 Mad. 76 the appeal abated on the death of the defendant respondent. It was a suit for injunction to restrain the defendant from preventing the plaintiff standing at a particular place in the Srirangam temple. ‘Palaniappa v. Rajah of Ramnad’, AIR 1926 Mad 243 was a case of a malicious prosecution. On the death of the plaintiff question arose whether the right to sue survived at least in respect of special damages i.e the vakil's fees and travelling and other expenses of witnesses etc. It was held that the cause of action was the tortious act of the defendant and the incurring of expenses merely went to swell the damages and therefore the claim there to did not survive to the legal representative. In ‘Ramaswamy Naicker v. Manickka’. AIR 1944 Mad. 405 the plaintiff's suit for damages for defamation was dismissed by the lower Courts. During the pendency of his second appeal the plaintiff died. It was held that the cause of action did not survive to his legal representatives.
6. The learned counsel for the appellant contends that his claim was decreed in the trial Court and therefore he can establish, in second appeal, that the decision of the trial Court is correct and that of the lower appellate Court is erroneous. There is no substance in this contention. As a result of the dismissal of the suit by the lower appellate Court, the plaintiff is seeking to enforce the very claim which he unsuccessfully sought to enforce in the suit. The appeal therefore partakes of the character of the suit and the right to sue will not survive on the death of either party, ‘Maniramlala Baliramlala v. Mt. Chattibai’, AIR 1937 Nag 216 (supra).
7. I therefore hold that the appeal abates. It is dismissed with costs.
C/G.M.J
8. Appeal dismissed.