V.R. Newaskar, J.
1. This is a plaintiff's second appeal. His suit was for recovery of Rs. 898-2-0 as damages for loss caused to his salt-bags by the wrongful act of trespass upon the premises in possession as a sub-tenant. The alleged act of trespass is said to have occurred on 14-8-1948 and consequent the loss to the goods within two or three days of that date. The suit was filed on 13-8-1951. The claim for damages consisted of Rs. 150/- as loss due to 10 out of 102 salt-bags having been pilfered away, Rs. 98-2-0 for the loss caused due to washing away of the salt in the remaining 92 bags due to rains, Rs. 150/- as expenses in connection with a criminal complaint filed by the plaintiff against the defendants namely his own landlord, that is the principal tenant and against the primary landlords as also against their Munim and Rs. 500/- as general damages for loss of reputation etc.
2. The trial court granted a decree for Rs. 548-2-0 after disallowing claim in respect of the expenses of criminal litigation Rs. 150/- and a part of the claim for general damages amounting to Rs. 200/-.
3. On appeal by the defendants the learned District Judge dismissed the claim in its entirety on the count of limitation although on merits he expressed the opinion that apart from the claim for Rs. 83/- for the loss due to washing away of a portion of the salt from the salt-bags the rest of the claim was untenable.
4. The plaintiff now has come up in second appeal.
5. Mr. Bharucha for the plaintiff contended that the claim was wrongly held barred by limitation as Article 36 upon which the lower appellate court relied had no application in the circumstances of the present case. The appropriate Article applicable was Article 39 or 49 and the claim was within time. He also contended that the claim for general damages was disallowed on erroneous grounds. Unfortunately during the pendency of this appeal plaintiff died.
His legal representatives were no doubt brought on record on 15-4-1959 but due to this new situation Mr. Sanghi for the respondents has raised a preliminary objection that the claim in this case being based for personal action it ought to come to an end by the death of the plaintiff and the cause of action cannot survive to the legal representatives of the deceased plaintiff. The learned counsel relied upon the decisions reported in AIR 1952 Nag 408, Baboolal v. Ramlal; AIR 1951 Mad 733, Irulappa v. Madhava; AIR 1937 Nag 216, Maniramlala Baliramlala v. Chattibai and some other decisions.
Mr. Bharucha on the other hand contended that since at an earlier stage i.e. in the trial court the plaintiff had succeeded, the right to sue survived although at the stage of first appeal the plaintiff had wholly lost.
6. Now since the plaintiff has died at the stage of second appeal and the claim being one in tort for damage caused to the plaintiff's salt-bags due to alleged tortious act of the defendants as also for injury to plaintiff's reputation which may include, as Mr. Sanghi suggests, mental suffering undergone by the plaintiff two questions arise-for consideration :
(1) How far the maxim 'actio personalis moritur cum persona' will apply to the claim in question?
(2) Does the fact that the plaintiff, though wholly unsuccessful in the first appeal, had obtained a decree for Rs. 548-2-0 in the trial court make any difference in case the maxim is applicable to any part of the claim?
7. On the first question, since the plaintiff has died after the Indian Succession Act 1925 bad been applied to these parts by the Part B States Laws Act of 1951, all that we may have to look to, is the wording of Section 306 of that Act. That Section provides:
'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, alter the death of the party; the relief sought could not be enjoyed or granting it would be nugatory.'
8. Although the section speaks of right to-prosecute or defend any action surviving to the executors or administrators still it indicates the limits within which the maxim 'actio personalis moritur cum persona' should be confined and those limits should be held equally applicable to legal heirs. For there is no reason whatsoever why the maxim should be limited in its application to the case of executors or administrators who might be administering the estate for the general body of heirs or legatees and not the heirs themselves.
The word 'personal injuries' which occurs in this section has created certain conflict of authorities. While it is held by the Calcutta High Court In ILR 31 Cal 993, Krishna Behari Sen v. Corporation of Calcutta and AIR 1927 Cal 277, Bhupendra v. Chandramoni, that words 'other personal injuries' have to be read ejusdem generis only with assault and therefore confined to physical injuries. On the other hand it has been held by the Bombay, Patna and Madras High Courts that they ought to be react ejusdem generis with defamation as well as assault. Vide ILR 47 Bom 716 : (AIR 1923 Bom 408), Motilal v. Harnarayan, ILR 44 Mad 357 : (AIR 1921 Mad 1) (FB), Rustomji Dorabji v. W.H. Nurse and AIR 1920 Pat 841, Punjab Singh v. Ramautar Singh Das, J. in the last mentioned case observed :
'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 Great Western Rly. Co., v. Swindon and Cheltenham Rly. Co. 1884-9 AC 787, 'where several words are followed by a general expression as here which is much applicable to the first and other words as to the last, that expression is not limited to the last, but, applies to all'.'
9. It is argued on behalf of the respondents that the general words, viz., 'other persona] 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 un-able 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, 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, 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.'
10. In AIR 1931 Nag 9, Ratanchand v. Municipal Committee Hinganghat, the Nagpur High Court has held that the expression 'other personal injuries' includes injuries of all description caused by the tortious acts and is not restricted to bodily injuries.
11. In my opinion the use of the expression 'personal injuries' instead of the word 'physical injuries' is not merely accidental and selection of one case out of each of two categories namely the category of non-physical or mental injuries and that of physical injuries, was made with the avowed object of illustrating the wider scope of the expression 'personal injuries' as distinguished from 'physical injuries'. Since the expression personal injuries is wide enough to include physical injuries resulting in death of an injured person, with a view to graft an exception to the wide amplitude of the expression the words 'not causing the death of the party' were added.
Where physical injuries cause the death of a party provision for compensation is made by statute under Fatal Accidents Act and the same is also claimable on the principle of equity, justice and good conscience by certain class of relations of the deceased. Since the causing of death due to mental injury is rare the law has not thought fit to provide for such a case by a special law similar to Fatal Accidents Act. But because of this it does not follow that by the association of the term 'not causing the death of the party' with the expression 'personal injuries' only physical injuries were intended to be meant.
It would lead to an anomalous result if we confine the expression to physical injuries reading it ejusdem generis only with 'assault' for in that case although cause of action would not survive to the legal representative or heir in case of defamation it would survive in the case of malicious prosecution although both involve mental injury. For making such a distinction there is no reasonable basis. I would therefore agree with the view taken by the Bombay, Madras and Patna High Courts as put succinctly by Das, J. in AIR 1920 Pat 841, and hold that the expression 'personal injuries' in Section 306 as not confined to physical injuries.
In AIR 1931 Nag 9, Staples, Acting JudicialCommissioner, has approved of this view as correct.It, therefore, follows that so far as claim for Rs.300/- as compensation for loss of reputation ormental agony would not survive after the death of the party injured namely the original plaintiff in this case.
12. As regards the claim in appeal for Rs. 83-1-0 as representing damage caused to plaintiff's salt-bags that being an injury to plaintiff's goods it would survive to the legal representatives of the deceased plaintiff. It cannot be said that because the damage is caused by a tortious act of the defendant entitling the plaintiff to sue in torts no right of action survived. It is not the nature of wrong but the nature of the injury that is material. Injury in this case being to goods of the plaintiff his estate to the extent of wrong done by the defendant has directly and not remotely suffered. Thus this claim alone survived.
13. As regards the second question namely, in case the claim as regards the loss of reputation or mental agony is taken to involve personal injury not causing death, will any difference be caused by the plaintiff's obtaining decree in respect of that claim in the trial Court though he lost wholly in the first appeal, I may first refer to the terms of Order 22, Rule 1 :
'The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.'
On this wording of Order 22, Rule 1, C. P. C. question which arises for consideration is what is meant by 'right to sue'. This was interpreted as equivalent to right to seek relief when applied to appeals by Fulton, J., in Gopal v. Ramachandra, ILR 26 Bom 597, and in my opinion rightly so. The learned Judge has tried to meet the possible argument that the right to sue means right to institute a suit and held that if that meaning is given to the phrase it ceases to be applicable when we try to apply it at the stage of appeal. He reasoned :
'In the appeal, it is the appellant, whether plaintiff or defendant, who is suing for relief; and it would surely be anomalous if the representative of the defendant were debarred from prosecuting an appeal against an erroneous decree because the plaintiff could not have obtained that decree if the defendant had died during the course of the suit.'
14. Order 22, Rule 1, C.P.C. provides that the death of plaintiff shall not cause the suit to abate if the right to sue survives. Order 22, Rule 3 further provides for continuance of the suit after the death of the plaintiff after causing the legal representatives of the deceased plaintiff to be brought on record on an application in that behalf. While Order 22, Rule 11 makes the aforesaid rules applicable to appeal where during the pendency of an appeal the appellant dies and the word plaintiff is held to include an appellant by statutory fiction for this limited purpose. Now, if right to sue means right to seek relief, it is clear that after the dismissal of the plaintiff's suit in a personal action such as in this case in its entirety the plaintiff is relegated to the same position in which he was before the judgment was rendered by the Court of first instance as held by Gruer, J. in AIR 1937 Nag 216.
It therefore follows that it makes no difference that the plaintiff had succeeded in the trial Court though wholly lost in the first appellate Court and his position as regards his right to sue is the same at the second appellate stage as it was in the Court of first instance before any judgment was given. So that if the claim becomes untenable in case the death of plaintiff takes place during the pendency of the suit in the Court of the first instance it would equally become untenable during the pendency ofsecond appeal in case the plaintiff's claim had been wholly dismissed by the first appellate Court.
15. Thus on the above discussion it follows that the only claim which survived on the death of the plaintiff is in respect of the injury to plaintiff's goods namely the claim for Rs. 83-1-0. The lower appellate Court, however, had held that Article 36 of the Limitation Act applied to the entire claim of the plaintiff and the suit is barred by limitation.
16. Now in order to consider the propriety of this view at will be material to consider two other Articles in the Limitation Act namely Articles 39 and 49 besides Article 36. These Articles are :
Article 36:-
For compensation for any malfeasance,misfeasance or nonfeasance independent of contract and not herein speciallyprovided for,
One
year
When the malfeasance, misfeasance ornonfeasance takes place.
Article 39 :--
For compensation for trespass upon Immovableproperty.
Three
years
The date of the trespass.
Article 49 : -
For other specific moveable property, or furcompensation for wrongfully taking or injuring or wrongfully detaining thesame.
Three
years
When the property is wrongfully taken orinjured or when the detainer's possession becomes unlawful.
17. Now Article 36 by its very terms is a residuary article and will apply only where there is no other article specifically applicable. In Essoo Bhayaji v. The S.S. 'Savitri', ILR 11 Bom 133, the words malfeasance, misfeasance or non-feasance in Article 36 were interpreted to embrace all possible acts and omissions commonly known as torts. The same view is taken in British India Steam Navigation Co. v. Sandana Adaikalam, AIR 1945 Mad 60 and Jagannath v. Kalidas, AIR 1929 Pat 245.
18. The present is no doubt a claim in torts and Article 36 will apply if there is no other article applicable. On behalf of the appellant Mr. Bharucha contends that the present claim will be covered either by Article 39 or Article 49. He relies upon the decisions in Moideen Kutti v. Koman Nair, 17 Ind Cas 605 (Mad) and Narbadaprasad v. Akabar Khan, 80 Ind Cas 769: (AIR 1924 Nag 125), in support of this view. Mr. Sanghi for the respondent on the other hand contends that Article 49 cannot apply because that article is confined to injury to movable property while the same is in the custody of any person other than the owner and has no application when the property injured was in the possession of the owner. He relies upon the decision in ILR 11 Bom 133 (137) in support of this view. He also contends that Article 39 relates to claim for compensation in respect of trespass upon immovable property and not for wrong done to movable.
19. In my opinion the contention raised on behalf of the respondent regarding non-applicability of Articles 39 and 49 of the Limitation Act is unsustainable. The defendants committed trespass upon the property which was the subject-matter of plaintiff's sub-lease. While committing that trespass for obtaining vacant possession they threw away plaintiff's salt-bags on the road thereby exposing them to rain and causing loss to the plaintiff. The damage to goods was the direct result of the act of trespassand not remote and compensation claimed for such an act would fall under Article 39. The decisions in 17 Ind Cas 605 (Mad) and 80 Ind Cas 769: (AIR 1924 Nag 125) support this view. The claim can also be held to fall under Article 49, as it is a claim for compensation for wrongfully injuring plaintiff's goods.
Even on the view taken in ILR 11 Bom 133, the property when it was injured was not in actual custody of the plaintiff. It was in the custody of the wrongdoer namely the defendants 1, 3 and 4 although I fail to see how on the wording of the article the question of possession can be imported. However it is not necessary for the purpose of the present case to examine the matter further. The injury resulting in damage to plaintiff's goods, in this case, became possible only when the defendants wrongfully obtained control over the goods while taking vacant possession of the premises in occupation of the defendant. Since on the view as to the applicability of either of the two Articles 39 and 49 the claim is within time, Article 36 has no application, that article only being applicable when no other article is applicable.
20. Last point urged by Mr. Sanghi is as regards the vicarious liability of the defendants 1 and 2 in this case for the acts of defendant No. 3 who was the Munim. It is contended that there is no indication in the pleadings of the plaintiff as regards this ground of liability. Had there been indication in the pleadings that the defendants Nos. 1 and 2 were being held responsible for what their Munim did they would have an opportunity to establish, as was their right, that what the defendant No. 3 did was not outside the scope of his employment and was neither expressly or impliedly authorised by them.
21. In my opinion this contention too is untenable. The plaintiffs were apprehensive of the damage to the premises by the existence of salt therein. They wanted somehow to see that they get back the vacant possession of the same and the salt was removed. Although they initially gave notice to quit to the plaintiff Ex. 1 yet within 24 hours of that the lock put up by the plaintiff over the premises in his occupation was got broken open in league with defendant No. 4 and the goods were thrown on the street. Plaintiff's case was that in this whole affair defendants 1, 2 and 3 acted in league with defendant No. 4. In my opinion circumstances of this case as established in this case do justify this inference. These circumstances are that the plaintiffs were apprehensive of the existence of salt in their premises.
This appears clear from the written statement of defendant No. 3 although defendants Nos. 1 and2 do not make a specific reference to it. One day before the incident defendants Nos. 1 and 2 gave notice to the plaintiff to vacate. This they did without reference to defendant No. 4 who had created the sub-lease. On the expiry of 24 hours the Munim of defendants Nos. 1 and 2 namely defendant No. 3 goes to the premises. He and defendant No. 4 act together. The lock is broken open and the salt-bags are thrown on the street. The defence of defendantNo. 3 was that he caused the salt-bags to be placed on the street in the rainy season under the direction of the plaintiff. This was an absurd stand and is utterly unbelievable. It is under these circumstances absurd to hold that what defendant No. 3 did was without knowledge or assent of defendants Nos. 1 and 2.
The entire sequence of events clearly show that everything was done by all the defendants 1 to 4 acting together and in league and could not be said to be sporadic and unauthorised act of defendant No.3 who had no personal interest in the matter. Defendants Nos. 1 and 2 when they have notice fully believed that they could ask the plaintiff to vacate within 24 hours. They considered that the act of plaintiff was that of trespass. Although they spoke of their right to take steps in Civil and Criminal Courts and expressed their intention to take proper steps yet what immediately followed on the expiry of 24 hours was different.
The law was taken into their hands and the premises got vacated. The defendants Nos. 1 and 2 admittedly obtained vacant possession in this manner. Under these circumstances they could not plead that what their Munim did in this matter was without their assent or knowledge. In my opinion the case set up by the plaintiff in this case should be taken to, have been established by the circumstances brought on record and the liability to bear the burden of this act was equally upon all the defendants 1 to 4.
22. The appeal is consequently allowed and plaintiff's claim for Rs. 80-1-0 is decreed with proportionate costs against defendants 1 to 4. The defendants shall bear their entire costs both regarding the claim of the plaintiff decreed as well as that dismissed.