The right to sue for defamation does not survive the original plaintiff's death, as per the proviso to Section 2 of the Kerala Torts Act.

ORDER

Dated this the 30^th day of November, 2023 The revision petitioner is the defendant in O.S.No.273 of 2013 on the files of the Munsiff Court, Punalur and the respondents are the additional plaintiffs 2 to 4 therein. The averment in the suit is that the original plaintiff and the revision petitioner are brothers. The revision petitioner, to defame the plaintiff, described him as the revision petitioner's uterine brother in the written statement filed in the suit (O.S.No.90 of 2011) preferred by their sister. Further, in O.S.No.392 of 2012 filed by the revision petitioner before the Sub Court, Kottarakkara, he alleged that the plaintiff was conceived after the revision petitioner's father became impotent. According to the plaintiff, the false imputation affected his reputation and hence the plaintiff should be paid a compensation of Rs.1,00,000/-.

2. Pending the suit, the original plaintiff died on 27.01.2019 and his wife and children were impleaded as additional plaintiffs 2 to 4. Thereafter, the revision petitioner filed I.A.No.5 of 2021 seeking dismissal of the suit on the ground that the right to sue for damages is purely personal and cannot be transmitted to the legal heirs. It was contended that, under the provisions of the Kerala Torts (Miscellaneous Provisions) Act, 1976 , there is a prohibition against the continuation of the suit for damages by the legal heirs.

3. By the impugned order, the learned Munsiff dismissed the interlocutory application, holding that the issue of maintainability of the suit can be considered as a separate issue along with the issues already framed. Aggrieved, this revision petition is filed.

4. Heard Adv.John Varrghese for the revision petitioner and Adv. P.B. Krishnan, assisted by Adv.Manu Vyasan Peter, for the respondents.

5. Learned Counsel for the revision petitioner relied on the proviso to Section 2 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 ('the Act' for short) to contend that, unlike other tortuous acts, the cause of action for defamation will not survive after the death of the person defamed and hence, the legal heirs of the original plaintiff cannot continue the suit on his behalf. In support of the contention that an action for defamation is maintainable only by the persons defamed and not by his friends, relatives or family members, reliance is placed on the decision of the Delhi High Court in Harsh Mendiratta v. Dr Maharaj Singh and Others [2002 KHC 2303]

6. It is then contended that the court below has grossly erred in holding that the maintainability of the suit can be considered as a separate issue and decided along with the issues already framed. According to the learned Counsel, the maintainability issue raised by the revision petitioner being a pure issue of law, should be decided as the preliminary issue. To support this proposition, the Apex Court decision in M/s. Mongia Realty and Buildwell Private Limited v. Manik Sethi [(2022) 11 SCC 572] is pressed into service.

7. Learned Counsel for the respondents submitted that the provisions of the Act have no application since the allegation is that the plaintiff and family members were defamed by the false imputation. Therefore, the family members/legal heirs of the plaintiff have every right to continue the suit for defamation.

Moreover, as rightly held by the court below, the issue whether the suit can be continued by the legal heirs is a mixed issue of fact and law and cannot therefore be decided as the preliminary issue.

8. To answer this contention, it is necessary to scrutinise Section 2 of the Act, extracted hereunder;

“2. Effect of death on certain causes of action. - On the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate:

Provided that this section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart fr