SYED MUDASSER AMEER, J.- The instant appeal has been preferred by the Plaintiff as his suit seeking damages for defamation against the defendants (respondents herein) was dismissed by the trial Court. During pendency of this appeal, both the respondents (defendants) died. The question is whether upon the death of both the respondents/defendants this appeal shall abate or not.
2. Defamation is a tort, a civil wrong. It is a personal action, which dies with the person. As a general rule, like most personal actions, defamation actions do not survive the death of a party. An exception to this general rule can be pleaded where the estate of the wrongdoer has benefited from the wrong and recovery of damages is intended from the estate. However, in the instant case no such claim has been made in the pleadings so there is no reason to delve into that discussion.
3. In Pakistan the applicable statutory law is Order XXII of the Code of Civil Procedure, 1908 ('CPC'), which provides the whole procedure related to the abatement of suits upon the death of parties and its consequences. Rule 1, adequately dealing with the whole controversy in the instant case, is given below for ready reference: "1. No abatement by party's death, if right to sue survives. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives."
4. The above quoted rule provides that a suit shall abate upon the death of a plaintiff or defendant unless 'the right to sue survives'. As such the determining factor in any suit, where a plaintiff or defendant dies, would be whether the right to sue by or against a party has survived or not. This means that if the right to sue survives against the legal representatives of a defendant, the suit shall not abate, otherwise it shall.
5. In the case of Mir Shakeelur Rehman v. Yahya Bakhtiar (PLD 2010 SC 612), the apex Court was pleased to observe as follows: "18. In the domain of civil law, the person wronged can file a suit for damages for malicious prosecution. It is a personal action and dies with the death of either of the parties. This was so held in:
(i) Maniramlala Baliramlala v. Mt.Chattibai AIR 1937 Nagpur 216.
(ii) Mahant Salig Ram v. Charan Dass and another AIR 1939 Lahore 492.
(iii) Mst. Nasri Begum v. Virgil L. Moore, Consular for Administration Embassy of United States of America 1989 CLC 511.
(iv) Govt. of Punjab through Secretary Ministry of Agriculture v. Mst. Kamina 1990 CLC 404.
(v) Mercantile Cooperative Bank Ltd. v. Messrs Habib and Co. and others PLD 1967 Karachi 755.
(vi) M. Veerappa v. Evelyn Sequeria 1989 MLD 3225.
19. In Retanlal Bhannalal Mahajan v. Baboolal Hajarilal Jain (AIR 1960 Madhya Pradesh 200), the Court referred to section 306 of the Succession Act held that "personal injuries" under the afore- referred provision of the Act includes physical as well as mental injuries and a claim for compensation for loss of reputation or mental agony does not survive after the death of the party injured. However, the position would be different where suit for defamation has culminated in a judgment and decree in favour of the plaintiff. The decree would survive death of the decree holder because the cause of action merges into the said decree which is part of his estate. His legal representatives have a right to defend the decree and are therefore entitled to be substituted."
6. In the above-quoted paragraphs, the apex Court was addressing the abatement of a suit or legal action upon the death of the plaintiff/claimant. However, the underlying principle is equally applicable in the event of the death of the defendant. In personal actions, such as defamation, the liability is inherently personal to the defendant, as the legal heirs/representatives have no involvement in the alleged occurrence that gave rise to the claim for damages. The legal heirs were neither involved in, nor can they defend the alleged wrong. Thus where the person against whom the liability had to be established, dies before the establishment of such liability, the cause of action can hardly be extended to his legal heirs, who cannot reasonably be held answerable for a wrong allegedly committed by their predecessor. To hold otherwise would be akin to prosecuting a son for the crimes of his father; an idea that is manifestly untenable. It can, therefore, be safely concluded that a claim based on a personal tort, such as defamation, does not survive against the legal representatives of the deceased defendant and must abate upon his death prior to adjudication.
7. The situation, however, would be materially different where adjudication has already taken place and the suit has been decreed, and the defendant, having preferred an appeal against the said decree, dies during the pendency of the appeal. In such a case, the liability has already been judicially determined, and a debt has thereby been created against the estate of the deceased.
Consequently, the cause of action no longer remains personal in nature, as the legal obligation has crystallized into an enforceable decree. In this eventuality, the legal representatives of the deceased defendant must be brought on the record and afforded an opportunity to contest the appeal, as they now represent the estate against which the adjudicated liability is to be enforced.
8. Defamation is a personal tort. It is not transmissible to or against legal representatives. The cause of action dies with the person. This principle has its origin in the Latin maxim "actio personalis moritur cum persona" (a personal action dies with the person). Actions for defamation do not survive the death of the wrongdoer or the wronged party unless specific statutory provisions say otherwise. There being no such provision saying otherwise in the Defamation Ordinance, 2002, no exception can be taken to the general rule. In the case titled "Ali Muhammad Mirza and others v. Mst. Sardaran and others" reported as PLD 2004 Supreme Court 185, Supreme Court of Pakistan has observed as follows: "6. There is a simple test to check as to when and how a right to sues survives despite the death of a party. There are cases where the plaintiffs mostly sue with regard to some claim which is associated with or vests in their individuality. A suit for damages falls under that category. If a plaintiff dies during the pendency of suit for damages, the right to sue, which can also be termed as a right to seek relief, would not survive but if he succeeds in getting, a decree for damages and dies during the pendency of his opponent's appeal, the right would of course survive to his legal representatives. In case of the survival of right to sue the suits do not abate on death of a party but the impleadment or substitution of his legal heirs becomes incumbent within the period of 90 days.
This is so because the surviving right has now become vested in the legal heirs. So long as a right is referable to the individuality of a person, it does not survive at the death of that person. The general rule is that all causes of action and all demands whatsoever existing in favour of or against a person at the time of his death survive to or against his legal representatives. This principle is found enacted in the Succession Act as well, with the only exception that rights intimately connected with the individuality of the deceased will not survive based on the famous maxim actio personalis moritur cum personal- a personal right of action dies with the person. A right to sue, other than intimately connected with the individuality of the deceased, will always, survive to or against his legal representatives."
9. In Puran Singh & Others v. State of Punjab & Others (AIR 1996 SC 1092), the Indian Supreme Court addressed this issue in the following terms: "A personal action dies with the death of the person on the maxim "action personalis moritur cum persona". But this operates only in a limited class of actions ex delicto, such as action for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the granting of the relief would be nugatory. (Girja Nandini v. Bijendra Narain, 1967 (1) SCR 93). But there are other cases where the right to sue survives in spite of the death of the person against whom the proceeding had been initiated and such right continues to exist against the legal representative of the deceased who was a party to the proceeding. Order 22 of the Code deals with this aspect of the matter. Rule 1 of Order 22 says that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. That is why whenever a party to a suit dies, the first question which is to be decided is as to whether the right to sue survives or not. If the right is held to be a personal right which is extinguished with the death of the person concerned and does not devolve on the legal representatives or successors, then it is an end of the suit. Such suit, therefore, cannot be continued. But if the right to sue survives against the legal representative of the original defendant, then procedures have been prescribed in Order 22 to bring the legal representative on record within the time prescribed..."
(Underlining supplied)
10. In RM P. K.P A.R Arunachalam Chettiar v. V.S Alias S.V.V Subramanian Chettiar (AIR 1958 Mad.
142), a Division Bench of Madras High Court held as under: "2. It is now well established that the maxim actio personalis moritur cum persona is part of the law of this country except in so far as it has been modified by statute. In Rustovji Dorabji v. Nurse (1921)
40 M.L.J. 173 : I.L.R. 44 Mad. 357 (F.B.) a Full Bench of this Court ruled that in a suit for malicious prosecution, when a defendant dies, the right to sue does not survive. The principle of this Full Bench ruling will certainly apply to the present case as it is a suit for damages for malicious arrest.
So far as we are aware, this decision of our Full Bench has never been doubted in this Court nor has Mr. Kesava Ayyangar learned Counsel for the appellant, been able to cite any decision of any other High Court or of a higher Court in which doubt has been expressed as to the applicability of this doctrine to India. Page, C.J., who was apparently personally inclined to an opposite view said in D.K.
Cassim and Sons v. Sara Bibi (1936) I.L.R. 13 Rang. 385.
'I am constrained to hold that, except in so far as it has been modified by statute, the rule is and remains a part of the general law that runs in India.'"
11. In view of the above discussion, it is held that the present appeal, arising from a personal cause of action which had not matured into a decree, abated upon the death of both respondents. No right to sue survives against their legal representatives. Consequently, the appeal stands dismissed as having abated.