Point of Law: Maxim “action personalis moritur cum persona" was therefore declaration to be limited to a certain class of cases as indicated by Apex

ORDER :

R. DEVDAS J., (ORAL) :

1. The application in I.A NO.1/2019 is filed under Order 22 Rule 3 R/w. 151 of CPC, at the hands of the legal representatives of the sole deceased petitioner/ plaintiff, to come on record as legal representatives of the writ petitioner, who passed away during the course of these proceedings, on 26.09.2019.

2. This application is sought to be objected at the hands of the respondent No.3/ defendant No.3/ purchaser from respondents No.1 and 2. It is contended by the leaned counsel for respondent No.3 that since the original suit was filed seeking a decree restraining the defendants, their agents/ servants/ henchman or anybody preventing them permanently from obstructing the peaceful possession and enjoyment of the suit property, the same being a suit for bare injunction, the right to sue does not survive on the legal representatives of the plaintiff. In support of her contention, learned counsel for respondent No.3 has sought to place reliance on a latest decision of a Coordinate Bench in the case of Smt. Parvati W/o. Maruti Khatavakar V/s. Sri. Subana and Others in RSA NO.100770/2014 dated 13.12.2021 wherein it was held;

“The suit giving raise to this appeal was filed for injunction simpliciter. It is unnecessary to the pleadings in detail. Applying the principles of the Latin maxim “actio personalis moritur cum persona” injunction is a personal remedy against a person, in particular, against the defendant. Therefore, the very prayer itself makes it clear that it is a restriction against that person (defendant) or his agents or his men or anybody claiming under him or through him.

This is the usual format in an injunction suit. Once a man dies, the cause of action dies with him and does not pass on to the legal representative…..”

3. Further in the case of Smt. Usha Gopal Gowda V/s. Sri. M. T. Tharanath in WP No.15445/2015 dated 12.10.2018 it was similarly held;

“12. As noticed above, no cause of action is alleged against the legal representative of the defendant and cause of action alleged in the plaint against the sole defendant against whom the injunction was sought. The Trail Court misdirected itself while considering the application filed under Order 22 Rule 4 of CPC and proceeded to allow the application, as if the injunction is sought against the suit schedule property. Hence, the trial Court fell into error in allowing the application filed under Order 22 Rule 4 of CPC.”

4. Learned counsel for respondent No.3 further submits that the original plaintiff Sri. Mallappa @ Malleshappa Fakkirappa Goudappanavar could not have filed the suit seeking bare injunction as admittedly he had initially filed OS No.51/1997 against the original owners of the land namely Sri. Channaveerappa Rudrappa Anad seeking decree of specific performance. The said suit was decreed partly, only to the extent of directing refund of the earnest money with interest at the rate of 6% per annum. The original plaintiff filed RA No.111/2003 and the First Appellate Court confirmed the judgment and decree passed by the Trial Court. Not being satisfied the original plaintiff filed RSA NO.1186/2008 which is pending consideration before this Court. When the said Regular Second Appeal is pending before this Court, instead of filing an application to implead respondent No.3 herein who is a subsequent purchaser at the hands of the owners of the land, and seeking an order of Temporary injunction against the respondent No.3, the original plaintiff filed another suit in OS No.467/2009. Respondent No.3 purchased the suit scheduled property under a registered sale deed on 20.02.2009. It is therefore sought to be contended that the second suit in OS No.467/2009 is hit by Order 2 Rule 2 of CPC.

5. Per contra learned counsel for petitioner/ applicants would contend that similar objections were raised at the hands of respondent No.3 herein and in fact two applications under Order 7 Rule 11(d) and another under Order 7 Rule 11(a) of CPC were fil