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TMI Blog1988 (1) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... 22.11.1971 and was dismissed as withdrawn .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 ₹ 20,000 towards the loss sustained by him but he was however content to restrict the amount to ₹ 4,500. In addition he claimed a sum of ₹ 1,500 under three heads of ₹ 500 each viz., (I) refund of ₹ 500 paid towards court fee and miscellaneous expenses, (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Rama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rators 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 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, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ₹ 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 ₹ 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 ₹ 500 as the defendant has not returned 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 of suitable place for continuing the business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 itself, is not a sufficient ground for preventing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 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 failin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 approp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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