Mahendra Bhushan Sharma, J.
1. This is defendant's second appeal arisimr out of a suit for malicious prosecution filed by one Vijailal who expired during the pendency of the suit and is now represented by his legal representatives and is Banshidhar and others respondents.
2. The facts of the case out of which this appeal arises lie in a narrow Ghishilal, father of Om Sharan, the appellant (hereinafter referred to as the defendant) and one Vijailal, since dead and now represented by his legal representatives, the respondent, were having their shops in Chomu town in which each was carrying on the business of sweets (for sake of brevity vijailal, shall be hereafter described as plaintiff).Ghishilal was carrying on the business or sweets earlier than the plaintiff and as a result of which the plaintiff also starting the same business, it is alleged there was business rivalry in between the plaintiff and the defendant and the relations were strained. On June 28, 1956, the defendant filed a complaint against the plaintiff and his elder brother Totaram as also against Banshidhar Shankerlal, Ramdas and Bajranglal, all sons of the plaintiff, which report, according to the plaintiff, was false. The report was filed to the Secretary Home Affairs, Government of Rajasthan, to the effect that on June 19, 1956, the plaintiff and other accused persons had assaulted the defendant. That report was sent by the Secretary for Home Affairs, Government of Rajasthan to the Superintendent of Police, Jaipur, who in turn sent it to police station, Chomu which had jurisdiction in the matter. It is alleged that the plaintiff and the other accused persons named in the report of the defendant were arrested by the SHO, Chomu police station, hand cuffed and sent to Central Jail and only after some days they were released on bail. The police station, Chomu filed a challan against the plaintiff and others named above, for offences under Sections 452 and 147 IPC which on trial resulted in the acquittal of the plaintiff and others on September 30, 1959 in the Court of SDM, Amer. According to the plaintiff earlier also a report was lodged on June 15, 1956, by Ghishilal, father of the defendant, against the plaintiff and his family members that they dismantled the wall raised by Ghishilal and thus caused a loss to him to the tune of Rs. 200/-, but when police station, Chomu did not take steps against the plaintiff and others, Ghishilal, father of the defendant, filed a complaint in a proper court which after trial, was dismissed on December 20, 1957. The plaintiff filed a suit for malicious prosecution against the defendant on the ground that the prosecution of the plaintiff under the aforesaid report dated, June 20, 1956, to the Secretary for Home Affairs, Government of Rajasthan was with malice and without reasonable and probable cause and the plaintiff suffered a loss to the tune of Rs. 3,000/- as general and special damages. The plaintiff claimed general and rpecial damages for himself as well as for his brother and sons, named above, all of whom were arrayed as accused in the case and were acquitted. The details of the amount of Rs. 3,000/- are contained in the Schedule A annexed with the plaint.
3. The suit was contested by the defendant on the ground that the complaint leading to the prosecution of the plaintiff and others was true to his knowledge and it was not filed with the intention of causing harm to the plaintiff or the members of his family. The defendant did not dispute the prosecution of the plaintiff and others on his report and their acquittal by the Court. As the plaintiff died after institution of the suit and his legal representatives, all respondents to the present appeal, were bought on record, and objection was taken by the defendant that the suit is not maintainable after the death of Vijailal (plaintiff). The learned trial Court, on the pleadings of the parties, framed as many as five issues and after trial decreed the suit of the plaintiff against the defendant for Rs. 900/-. This amount includes Rs. 575/- as general damages and Rs. 25/- as special1 damages. The learned trial Court observed that the plaintiff was only entitled to the damages for himself and not for other members of his family Who were prosecuted and acquitted, as they had not filed a suit.
4. The defendant as well as the plaintiff filed appeals and both the cross appeals came up for consideration before the learned District Judge, Jaipur District, Jaipur, who, under his judgment and decree, dated July 29, 1968, partly allowed both the appeals. The learned District Judge held that the legal representatives of the plaintiff in a suit for damages for malicious prosecution, cannot claim general damages. Holding further that they were entitled for special damages, the learned District Judge observed that the special damages to which the plaintiff was entitled comes to rupees, 586.50 no only, Thus, the decree of the trial Court was modified to the extent that the suit of the plaintiff for special damages amounting to Rule 586.50 no only was decreed. The rest of the suit was dismissed.
5. I have heard counsel for the parties and have perused, the record of the case. The only contention raised by the learned counsel for the defendant is that the leaned courts below have erced in even allowing special damages to the legal representatives of deceased plaintiff, Vijailal, It is contended that the right to sue for malicious prosecution was personal to Vijailal and, therefore, with the death of the Vijailal during the pendency of the suit the right to sue does not survive to the legal representatives, respondents, not only with regard to general damages claimed by Vijailal but also with regard to special damages claimed by him.
6. The contention of the learned advocate for the plaintiff, on the other hand, is that cause of action for a suit for malicious prosecution does, does not die with the death of either of the parties and it survives to the legal representatives of the plaintiff. According to him Vijailal, plaintiff when he along with the others was prosecuted by the defendant, which prosecution resulted in acquittal and was without reasonable and probable cause and with malice, he had to incur expenses in attending the Court from Chomu to Jaipur, in engaging a lawyer and also suffered loss of business because of the closure of his shop during the days the case was fixed at Jaipur. Thus this loss is a loss to the estate of Vijailal deceased and atleas to the extent of this loss the cause of action survives to the legal representatives of deceased plaintiff. The learned advocates have cited a few cases in support of their respective contentions, which cases shall be referred hereinafter.
7. A already observed above, the learned District Judge has made a distinction in general damages and special damages. In this view, so far as the cause of action for general damages is concerned, it does not survive to the legal representatives of the deceased plaintiff in a suit for malicious prosecution, but so far as cause of action for special damages is concerned, it survives to the legal representatives of the deceased plaintiff. The question is whether the distinction is warranted under law.
8. Claims by and against the legal representatives of a deceased person are regulated by Section 306 of the Indian Succession Act, 1925 (Act XXXIX of 1925) (hereinafter referred to as, the Act) which reads as, follows:
Section 306--Demands and rights of action of or against deceased survive to and against executor or administrator:-All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his deceased survive to and against his executors or administrators, except causes of action for defamation, assault, as defined in the Indial Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after death of the party, the relief sought could not be enjoyed or granting it would be nugatory.
The above extracted section of the Act gives recognition to the maxim actio personalis moriture cum persona (personal actions die with the person). Such personal actions which are founded upon any obligation, contract, debt covenant or other cuty and such right of action on which the deceased, estate or intestate, night have sued in his life time survives his death and are transmitted to his executor or to his administrator or to his legal representatives. The first part of Section 306 of the Act deals with regard to survival of cause of action on the death of a person to his legal representatives. The second part of Section 306 of the Act engrafts various exceptions to the general rule enunciated in the first part as aforesaid. The contention of the learned counsel for the defendant is that so far as the cause of action for a suit for malicious prosecution is concerned, it was personal to the plaintiff and is based on tort. With the death of the plaintiff during the pendency of the suit, such cause of action dies not only with regard to general damages but also with regard to special damages. It is contended by him that in the instant case the special damages which have been awarded are with regard to the expenses incurred for attending the court, for loss of business on the date fixed and for payment of fees to the advocate. He submits that it is not a loss to the estate of deceased plaintiff and, therefore, the learned District Judge has erreu in making a distinction in general and special damages so far as the survival of the cause of action is concerned.
9. Almost all the High Court in India except that of Calcutta have taken a view that an action for malicious prosecution does not survive but abates on the death of the party. In their view the words 'other personal injuries not causing death of the party' in Section 306 of the Act must be read as ejusdem generis with both defamation and assault. But according to Calcutta High Court such an action does not abate as the words 'personal injuries' in Section 306 of the Act must be read as ejusdem generis with the words just preceding it, namely, 'assault'. In Motilal Satyanarayan and Anr. v. Harnayan Premsuk and Anr. A.I.R. 1923 Bombay 408 it has been held, that an action for malicious prosecution does not survive beyond the life time of the plaintiff, even so far as it relates to the expenses incurred by the deceased plaintiff in defending himself against prosecution. In Palaniappa Chetiar V. B. Raja Rajeswara Sethumathi alias Mathu Ramalinga Sethumathi Avergal and Ors. A.I.R. 1926 Madras 243, it has been held that in a suit for damages for malicious prosecution if the plaintiff dies then the claim for the expenses for defending the prosecution do not survive to the legal representatives of the plaintiff as the cause of action was tortious act of the defendant and the incurring of expenses merely go to swell the damages. In Mahtab Singh V. Hub Lal and Anr. A.I.R. 1926 All. 610 also the question was an to whether the right to sue for legal expenses/or other losses caused to a person due to a malicous prosecution instituted against him is a personal right and whether it survives to the legal representatives of such person or not. It was held that a cause of action even for the expenses incurred in the defence does not survive to the legal representatives as they were only incidental to to the main cause of action and when the main cause of action does not survive, then for incidental expenses falls through with it. In Ratan Chand V. Municipal Committee, Hinganghai A.I.R. 1931 Nagpur 9 also a similar view as was taken. In Mahant Salig Ram V. Charon Dass and Anr. A.I.R. 1939 Lahore 492, though it was a case where it was also decided that if the claim fruitfies in a decree then the cause of action will not die. But it was also held that if the injured person brings an action in his life time but dies before a decree is passed in his favour, the suit will abate and his legal representatives could not continue the suit after his death. In Kakumanu Bedasubbayya and Anr. v. Kakumanu Akkamma Anr. : 1SCR1249 some observations have made in para 15 by their Lordships of the Supreme Court which are relevant. It will be pertinent to quote them: 'It was urged that the cause of action for a suit for partition by a minor was one personal to him, and that on his death before hearing the suit must abate on the principle of the maxim actio personalis moritur cum persona. But that maxim has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for peoperty the rule in question has no application to it'. In G. Jayaprakash v. The State of Andhra Pradesh and Ors. A.I.R. 1977 A.P. 20, white dealing with the applicability of the maxim actio personalia maritur cum personsa it was observed in para 3: 'From the above discussion it is clear that the meaning of this maxim is that a personal action dies with the person, and the effect is that the death extinguishes the liability in tort. In others words the death of the party wronged or the wrongdoer brings an end to the cause of action and the right to sue gets extinguished. But this is subject to a qualification, viz, where a tortfeasor's estate is benefitted by the wrong done, an action would lie against the representative of a wrong doer. The essence of the maxim applies to an action brought for damages for a personal wrong.
10. Mr. Mehta, learned advocate for the respondents has referred to Kotah Transport Ltd., Kotah v. Jhalawar Transport Service Ltd., Jhalawar: 1960 R.L.W. 294. But that authority is not relevant to the present case. He has also referred to Peoples Bank of Northern India Ltd., Gujarat Branch v. Das Rai and Ors. A.I.R. 1935 Lahore P. 705 and D.K. Cassim and Sons v. Sara Bibi and Ors. A.I.R 1936 Rangoon 17. Dealing with Section 306 of the Act it was held that the expression 'personal injuries' in Section 306 does not include injuries of all descriptions caused by tortious acts, but it is used in the sense of bodily injury. In D.K. Cassim and Sons case (supra) a similar view has been taken. A reference may also be made to Koncara Narayanamma and Ors. v. Uppala China Simachalam and Ors. 1975 ACJ 448 wherein a view has been expressed that with regard to expenses incurred for the treatment of the plaintiff, in case of injuries received by him in a motor-accident, the cause of action not only rests with the plaintiff but also survives to his legal representatives.
11. The prosecution of the plaintiff in a criminal case is personal and on his acquittal it gives a cause of action for a suit for malicious prosecution and the plaintiff can only succeed in case he proves--(1) that he was prosecuted by the defendant and his prosecution resulted in acquittal, (2) that his prosecution was malicious, and (3) it was without reasonable and probable cause. Thus the cause of action in a suit for malicious prosecution is the tortious act of the defendant and the expenses in defence incurred by the plaintiff also relate to that cause of action. Thus even for the expenses incurred in the criminal prosecution by the plaintiff the maxim 'actio personalia moritur cum persona' will be attracted and the cause of action even for the expenses will not survive to the legal representatives and dies with him. The learned District Judge in arrriving at the conclusion that so far as the special damages are concerned cause of action survives to the legal representatives of the deceased plaintiff, has not referred to any peovision of law or the decided case. The contention of Mr. Mehta that a cause of action for the suit fof malicious prosecution is not one of the exceptions engrafted in second, part of Section 306 of the Act does not appeal to me. As already observed above, cause of action for a suit for malicious prosecution is personal to the plaintiff and it is so even with regard to expenses incurred by him in defending himself. I am, therefore, of the opinion that the cause of action in this case even for special damages which cannot be said to be a loss to the estate of the decease I, does not survive to the respondents who are legal representatives of the plaintiff, the plaintiff having died during the pendency of the suit before his claim could fruitify in a decree.
12. In the result, I allow this appeal, set aside the judgments of the courts below and dismiss the suit of the plaintiff for damages against the defendant. In view of peculiar facts of this case I leave the parties to bear their own costs throughout.