Judgement

NATARAJAN, J.:- Leave granted.

2. The limited question falling for our determination in this appeal by special leave is whether a suit for damages already instituted against a counsel has abated or not consequent on the death of the plaintiff.

3. We may now scan the facts. Pursuant to the High Court of Karnataka confirming an order of eviction passed against him in respect of his business premises, a tenant by name Mr. Sequeira wanted to prefer an appeal to the SC. For that purpose he met the appellant, who is an advocate practising in the SC, on 14-6-1971 at Mangalore during the latters visit to that place and engaged him to file the appeal. The special leave petition came up for hearing on 22-11-1971 and was "dismissed as withdrawn."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 mis-leading 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 Rs. 20,000/- towards the loss sustained by him but he was however content to restrict the amount to Rs. 4,500/-. In addition he claimed a sum of Rs. 1,500/- under three heads of Rs. 500/- each viz., (1) refund of Rs. 500/- paid towards court-fee and miscellaneous expenses, (2) reimbursement of Rs. 500/- expended for engaging another advocate to obtain a certified copy of the order of the SC in the special leave petition and (3) compensation towards wrongful retention of the case file by the appellant and reimbursement of expenses incurred for telephone and postal charges. Thus in all the suit was laid against the appellant for a sum of Rs. 6,000/ by way of damages and compensation besides costs etc.

4. The appellant entered appearance in the suit and filed a written statement refuting the charges of negligence and misconduct levelled against him by the plaintiff and also disputing the plaintiffs right to seek damages or reimbursement of amounts from him under any of the heads set out in the plaint.

5. During the pendency of the suit the plaintiff died and his legal representatives, who are the respondents herein, filed a petition under O. 22, R. 3(1) of the Code of Civil Procedure seeking their substitution in the suit for prosecuting the suit further. The appellant opposed the application and contended that as the suit was one for damages for personal injuries alleged to have been sustained by the plaintiff, the suit abated on his death as per the maxim Actio personalis cum moritur persona. The District Munsif upheld the objection and dismissed the suit as having abated but the High Court held otherwise and declared the legal representatives to be entitled to get impleaded and continue the suit. The learned single Judge who allowed the Revision has taken the view that Krishna Behari Sen v. Corpn. of Calcutta (1904) ILR 31 Cal 993, sets out the correct ratio and hence he was following it in preference to the ratio laid in Rustomji Dorabji v. W. H. Nurse, ILR 44 Mad 357 and Motilal Satyanarain v. Harnarain Premsukh, AIR 1923 Bom 408. The said order of the learned single Judge is under challenge in this appeal.

6. Even at the threshold of the judgment we may say that the ratio followed by the High Court is not a correct one. Section 306 of the Indian Succession Act, 1925 which corresponds to S. 89 of the Probate and Administration Act, 188