AMIN-UD-DIN KHAN, J.--Through this single judgment we intend to decide RFA in hand as well as RFA.No, 258 of 1993 as both these cases have nexus with each other.
2. Through this appeal appellants have challenged the judgment and decree dated 4.5.1992 whereby suit of the plaintiff-respondent Muhammad Haleem Chohan for recovery of damages for malicious prosecution.was partially decreed. Defendants preferred this appeal whereas plaintiff- decree holder filed cross- objections which were registered by the office as RFA. No, 258 of 1993.
The appeal was allowed through consolidated judgment and decree passed by this court on 11.2.2002 and cross-objections i.e, RFA. No, 258 of 1993 was dismissed. The judgment and decree of this court was assailed before the august Supreme Court of Pakistan in Civil Appeal No, 1009 of 2002, same was allowed by the august Supreme Court of Pakistan vide order dated 27.10.2009 and matter was remanded back to this court for decision afresh. After remand the original plaintiff passed away and appellants moved an application (C.M. No,1-C-2013) with the assertion that as sole plaintiff i.e, respondent in this appeal has passed away, therefore, his suit will abate and prayed the court to dismiss the suit but during hearing of arguments learned counsel for the appellants' in Appeal No, 104 of 1993 made a statement that if the other side does not press their appeal i.e, RFA. No, 258 of 1993 he will also not press the appeal or if under the law this Court finds that the RFA. No, 258 of 1993 has abated, he will not press his appeal i.e, RFA. No, 104 of 1993, as the decretal amount has become the part of estate of deceased plaintiff/predecessor of respondents. In this view of the matter, we have heard learned counsel for the parties on this point and we take up RFA. No, 258 of 1993 first as its decision will effect the decision of RFA. No,104 of 1993 in the light of statement made by the learned counsel for the appellants.
3.Now question before this court is that plaintiff/predecessor of the appellants of RFA. No, 258 of 1993 filed a suit for damages on the basis of malicious prosecution for recovery of Rs:2,020,2600/- and learned trial court vide judgment and decree dated 4.5.1992 decreed the suit to the extent of Rs:1,00,000/- and to the extent of rest of his claim suit was rejected. This court accepted the appeal of the judgment debtors/defendants vide judgment and decree dated 11.2.2002 and the matter went to the august Supreme Court of Pakistan and august Supreme Court of Pakistan vide judgment dated 27.10.2009 while allowing C.A. No, 1009 of 2002 remanded the matter to this Court.
After remand the sole plaintiff/predecessor of the appellants of RFA. No, 258 of 1993 passed away, the suit to the extent of Rs:1,00,0t0/- was decreed in favour of the original plaintiff in his life time and was dismissed to the extent of rest of his claim based upon the malicious prosecution. Now question before us for determination is whether the cross-objections filed by the legal heirs of the original plaintiff of a suit for damages on the basis of malicious prosecution are proceedable and now the decree can be enhanced in the appeal in favour of legal heirs of original plaintiff after his death or the appeal abates?
4.Though learned counsel for the parties except making oral submissions have not assisted us on the point in issue with any case law, therefore, we have to undergo this exercise. In these circumstances, in our view as the general rule is that a personal action connected with the individuality of a person do not survive him (actio personalis moritur cum persona). In case, if suit of a plaintiff stand, dismissed by the learned trial court and during pendency of appeal in case of death of either party appeal shall stand abated. We are fortified by the judgment of august Supreme Court of Pakistan, reported as PLD 2010 Supreme Court 612 "Mir Shakeel-ur-Rehman and others v. Yahya Bakhtiar and others".
5.Now question arises that if a suit for damages on the basis of malicious prosecution is partially decreed and the decree- holder files an appeal or cross-objections for enhancement of decree and dies during pendency of the appeal or cross-objections, as the case may be, whether the said appeal or cross-objections abates or right to sue survives. When the maxim is that a personal action dies with the person and the effect is that the death extinguishes the liability in tort. This maxim was interpreted by the learned Division Bench of Sindh High Court in a judgment -reported as 1990 CLC 404 "Government of Punjab through Secretary, Ministry of Agriculture Lahore and another v. Mst. Kamina and others". The operative part of the judgment is reproduced as under:- "From the above discussion, it is clear that the meaning of this maxim is that a personal action dies with the person, the effect is that the death extinguishes the liability in tort. In other words the death of the party wronged or the wrongdoer brings an end to the cause of action and the right to sue or be sued for, gets extinguished. But this is subject to a qualification viz, where a estate is benefited by the wrong-done, an action would be against the representatives of a wrongdoer. The essence of the maxim applies to an action brought for damages for a personal wrong"
'We have further gone through the judgments reported as AIR 1984 Karnataka 63 "S. Muniyappa (deceased by L.Rs) v. H.L. Narasimhaiah and others" wherein following reported judgments have been relied. 1902 ILR 26 Madras 499 "Paramen v. Sundarraja" 1902 ILR 26 Bombay 597 "Gopal v.
Ramachandra" and 1940 ILR Nagpur 63 "Haridas v. Jagannath Das" and come to the conclusion where an appeal is filed by the tort feasor and cross-objections are filed by the plaintiff and the appellant dies then though the appeal does not abate, the cross-objections. would abate and if the plaintiff had appealed the same would have abated. It has been further noted in the same judgment, we quote Para 21 of the same.
"Thus, it is clear that the appeal filed by the victim for enhancement of compensation does not survive the death of the injured, as the law stands in India today. Therefore, the appeal, without more, has to be dismissed. The decree that is already passed by the trial Court in favour of the injured ensures to the benefit of the legal heirs as representing the estate of the deceased and they would be entitled to defend it in case that is challenged by the other side by filing an appeal, for the legal heirs have the right to defend the estate of the deceased. But, the appeal in this case would not survive, if the appeal was instituted by the injured claimant himself for enhancement of compensation and that right dies with him. "
' In view of case law referred above it is concluded that:-
1. The general rule is that personal actions connected with the individuality of a person do not survive him action personal's moritur cum persona and if the suit of the plaintiff has been dismissed by the trial court and during pendency of appeal, in case of death of either party, appeal shall stand abated. However, this rule is subject to the exception:- a. If a decree has been passed in favour of the plaintiff, in case of death of either party, the appeal filed by the defendant would not abate and the legal representatives of the parties would step into shoes appellant/respondent.. b. If a suit has been partially decreed and both parties have preferred appeals, then in case of death of either party, the appeal for enhancement of damages would abate but the appeal of the defendant for setting aside the partial decree would not abate.
6. In this view of the matter, in our view the cross-objections registered as RFA.No, 258 of 1993 abates and cannot proceed, therefore, same stands dismissed and in view of the offer and statement made by learned counsel for the appellant RFA. No, 104 of 1991 is dismissed as not pressed.