1. Suit for permanent injunction simpliciter — Death of sole plaintiff during pendency of appeal. (Para 2 )
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HIGH COURT OF KARNATAKA - DHARWAD BEN
Jyoti Mulimani, J
Parvati – Appellant
Versus
Subana – Respondent
REGULAR SECOND APPEAL NO.100770 OF 2014 (INJ)
Advocates:
For the Appellants/Petitioners: S.B.Doddagoudar, A.C.Chakalabbi, V.P. Inamdevi, Sumangala A.Chakalabhi
For the Respondents: Sanjay S.Katageri
For the Appellants/Petitioners: S.B.Doddagoudar, A.C.Chakalabbi, V.P. Inamdevi, Sumangala A.Chakalabhi
For the Respondents: Sanjay S.Katageri
Under the principle of 'actio personalis moritur cum persona', a suit for bare injunction is a personal remedy; therefore, upon the death of the sole plaintiff, the cause of action dies with them and does not pass to legal representatives.
Headnote:(A) Civil Procedure - Death of Party - Suit for bare injunction - Application of the maxim 'actio personalis moritur cum persona' - Injunction being a personal remedy, the cause of action dies with the person and does not survive to legal representatives upon the death of the sole plaintiff. (Para 2)
Issues: Whether the appeal for a bare injunction survives after the death of the sole plaintiff.
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2. Appellant sought continuation of injunction suit; respondent argued cause of action dies with the person. (Para 2 )
3. Injunction is a personal remedy; cause of action dies with the person and does not pass to legal representatives. (Para 2 )
4. In a suit for bare injunction, the right to sue does not survive the death of the sole plaintiff. (Para 2 )
5. Regular Second Appeal dismissed. (Para 3 )
6. Does the cause of action in a suit for bare injunction survive the death of the sole plaintiff?
No, the cause of action dies with the person and does not pass on to legal representatives. (Para 2 )
7. What is the principle of 'actio personalis moritur cum persona'?
It means that a personal action dies with the person; a personal remedy like injunction does not survive after death. (Para 2 )
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE 1908.
THIS APPEAL POSTED FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
Sri.S.B.Doddagoudar learned counsel on behalf of Sri.A.C.Chakalabbi and Associates for appellant and Sri.Sanjay S.Katageri, learned counsel for respondents 1(a) to (f) have appeared in person.
2. This is an appeal from the Court of Senior Civil Judge, Khanapura in R.A.No.54/2008 confirming the judgment and decree passed by the Court of Principal Civil Judge (Jr.Dn.), Khanapura in O.S.No.37/1991.
Counsel for appellant submits that a memo has been filed on 13.12.2021 stating that the sole appellant Smt.Parvati W/o.Maruti Khatavakar has died on 21.09.2019 and the death certificate is also furnished along with the memo.
Counsel Sri.Sanjay S.Katageri submits that appellant is the plaintiff before the Trial Court. The suit is filed for bare injunction. In view of the death of sole plaintiff the cause of action also dies with the person. Hence, the appeal may be dismissed.
Submission is noted. Perused the memo.
The suit giving rise to this appeal was filed for injunction simpliciter. It is unnecessary to the pleadings in detail. Applying the principles of "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 representatives. It is perhaps well to observe that in a suit for permanent injunction simpliciter, where one or two more defendants die during the pendency of the suit before the final adjudication of the dispute, the right to sue does not survive.
In the present case, the sole plaintiff died during the pendency of the appeal. As already noted above, the suit is for bare injunction and the relief of injunction is a personal remedy. Once a man dies, the cause of action dies with him and does not pass on to the legal representatives.
3. Hence, the Regular Second Appeal is dismissed.
