DISTINCTION BETWEEN DEATH OF PLAINTIFF AND DEFENDANT DURING PENDENCY OF INJUNCTION

[Mr. M. GOVINDARAJAN]

In a criminal case, if during the pendency of the case the accused expires the case will be abated.  But this is not the position in civil cases.  Normally a civil case is filed in the lower court.  Once the suit is filed in the lower court it will go up to the Supreme Court which will be a time consuming one.  Within the party either party of suit may die.  In many of the Civil Appeals before Supreme Court most of the appellant and the respondent may die and represent through their legal heirs.  The legal representatives may continue the case after the death of the party concerned. 

In this case  distinction between the death of plain and defendant during the pendency of injunction with reference to decided case law as discussed below-

In VASUNDHARA MITTRA AND ANOTHER VERSUS ASEEM TIWARI - 2024 (4) TMI 1084 - JAMMU AND KASHMIR AND LADAKH HIGH COURT, one Smt. Usha Tiwari is the mother of Vasundhara Mittra and Aseem Tiwari.  Usha Tiwari filed a suit against her daughter Vasudhara Mittra for permanent prohibitory injunction in respect of the property situated in Jammu before II Additional Munsif, Jammu.  The said suit was filed Usha through her son Aseem Tiwari and power of attorney holder.  In the said suit Usha contended that she is the exclusive owner of the property and her children are having no concern on the said property.  The Trial Court, vide their order dated 30.01.2017 decided the interim application filed by Usha and directed the parties to the suit to maintain status quo with regard to the said property.

Against this order Usha filed an appeal before the Court of Additional District Judge, Jammu.  During the pending of the appeal Usha expired on 26.05.2017.  Aseem Tiwari, the son of Usha, filed an application before the Appellate Court for substituting his name as a legal representative.  Vasundhara contended that the cause of action did not survive in favor of her brother since the relief claimed by Usha is personal in nature.  The Appellate Court allowed the appeal of Aseem Tiwari holding that if a legal representative of the plaintiff can enjoy the relief sought on the cause of action claimed by the deceased/plaintiff, the cause of action would survive in favour of such a legal representative.   The appellate court allowed the application of Ameet Tiwari and impleaded him as plaintiff in place of Late Usha Tiwari.

Vasundhara Devi filed a revision petition before the High Court.  She contended the following before the High Court-

• The cause of action in a suit for injunction was personal to original plaintiff-Smt. Usha Tiwari, who happened to be the mother of the petitioner herein and the respondent.
• After the death of mother, the cause of action did not survive in favour of the respondent i.e., her brother.
• In terms of the Will executed by Late Usha Tiwari, she had bequeathed the house situated at Gandhi Nagar, Jammu in favour of petitioner No. 1, who is in peaceful possession thereof, therefore, on this ground also, no cause of action survives in favour of the respondent. 
• In another suit between the parties relating to flat at New Friends Colony, New Delhi in which the respondent had sought a permanent prohibitory injunction against petitioner No. 1, the civil court at Delhi has, upon death of Usha Tiwari held that no cause of action survives in favour of the respondent after the death of his mother and accordingly, the suit was held to have abated in terms of order dated 26.08.2017 passed by the civil court at Delhi.

The High Court considered the submissions of the party.  The High Court considered the issue to be discussed in this case is as to whether cause of action in an injunction suit will survive to the legal heirs of deceased plaintiff and whether upon death of the plaintiff, the relief of injunction would be rendered nugatory.

The High Court considered the legal position in this case.  The High Court held that there is a distinction between the death of the plaintiff and the death of the defendant.  The injunction is operative against the defendants. Upon death of the defendant, the question of binding his legal representatives by injunction would not arise. But in a case where the plaintiff, who is seeking injunction dies, the same position will not hold good. The right of injunction does not die with the death of plaintiff. In the present case Usha Tiwari had sought injunction that the petitioners in the present case should not interfere in possession over the property in dispute.  A suit claiming injunction of this nature does not abate on death of the plaintiff.  The cause of action would survive to his/her legal representatives, who come in possession of the said property.

The High Court, then, considered the contentions of the respondent, Aseem Tiwari that the petitioner No. 1 herein stands disinherited by the deceased-plaintiff.  The High Court held that the following questions shall be decided only by the Trial Court-

• The question whether the petitioner was disinherited by deceased-plaintiff and it is only the respondent, who is entitled to remain in possession of the suit property.
• the merits of the claim of the petitioners/defendants that the deceased had executed a Will in respect of the suit property in favour of her daughter-petitioner No. 1 and that the said Will was her last will.
• The contention of Yujure Tiwari, who filed an application during the pendency of this case, requesting him to impleading him as respondent in this case as Usha Tiwari had executed her last Will on 18.01.2017 by revoking her earlier Will dated 06.12.2016 and bequeathed the suit property in favour of applicant-Yujure Tiwari.

The High Court observed that if the respondent and his son succeed in proving before the trial court that petitioner No. 1 has been disinherited from the suit property and that original plaintiff had executed a Will in favour of Yujure Tiwari, her grandson, they have a right to obtain an injunction against the petitioners. Therefore, it cannot be stated that right to suit does not survive in their favour.

The High Court further observed that civil judge has not discussed the matter in detail and has simply noted that as per the plaintiff, cause of action does not survive and that no application has been moved for impleadment of legal representatives though period of 90 days is over. On this ground, the civil judge has concluded that the suit stands abated. The order passed by the civil court did not deal with the merits of the issue relating to abatement of the suit.

In view of the above the High Court held that the appellate court has, while passing the impugned order, either committed any illegality or it has acted with material irregularity.  The High Court dismissed the revision petition.  The High Court has given liberty to Yujure Tiwari to move an application for his impleadment as a party before the appellate court/trial court. His application, is disposed of accordingly.