Special Leave Petition Civil Nos
12 12A of 1988
From the Judgment and order dated 18121987 of the Andhra Pradesh High Court in WA Nos
1649 and 1650 of 1987 PN Lekhi MK Garg and Lokesh Kumar for the Petitioner
Kuldeep Singh Additional Solicitor General and Mrs A Subhashini for the Respondents
The following order of the Court was delivered O R D E R In response to the queries made by this Court by its order dated January 8 1988 Shri Kuldeep Singh learned Additional Solicitor General has furnished the relevant information as under 1 In the matter of the age of Shri Justice K Bhaskaran Chief Justice of the Andhra Pradesh High Court the advice and comments of the Chief Justice of India were sought in terms of Articles 2173 of the Constitution of India
The files containing all the relevant papers were referred to the Chief Justice of India on 28th September 1987
2 The Chief Justice of India on 29th December 1987 desired to have an opinion as to the effect of the judgment pronounced by the Andhra Pradesh High Court concerning the matter of the age of the Chief Justice Bhaskaran
The opinion was made available to the Chief Justice of India on 6th January 1988
The Chief Justice of India on 11th January 1988 indicated further course of action in the matter
The file has been resubmitted to 730 the Chief Justice of India on 16th January 1988 for his further advice
3 A view in the matter will be taken by the President of India after the advice of the Chief Justice of India is made available
In view of the foregoing it is clear that the President of India in compliance with Article 2173 of the Constitution of India has referred the question as to the age of Shri K Bhaskaran the Chief Justice of the Andhra Pradesh High Court to the Chief Justice of India for his opinion
That being so no writ of mandamus can lie
The President of India as a constitutional functionary has discharged his duties under Article 2173 of the Constitution and the decision must rest on the advice of the Chief Justice of India and not the Council of Ministers
As laid down in the Union of India vs Jyoti Prakash Mitter
1971 3 SCR at 503  504 the matter as to the age of the Chief Justice or a sitting Judge of a High Court is a judicial function of the President of India which has to be discharged in accordance with the special provisions made under Article 2173 of the Constitution
Such a question as to the age of the Chief Justice or a Judge under Article 2173 of the Constitution is beyond the reach of the Council of Ministers under Article 74 of the Constitution
JC Shah CJ speaking for the Constitution Bench has laid down the law in these words It is necessary to observe that the President in whose name all executive functions of the Union are performed is by article 2173 invested with judicial power of great significance which has bearing on the independence of the Judges of the Higher Courts
The President is by article 74 of the Constitution the Constitutional head who acts on the advice of the Council of Ministers  The question as to the age of Shri K Bhaskaran the Chief Justice of the Andhra Pradesh High Court must therefore be decided by the President of India on the advice of the Chief Justice of India as enjoined by Article 2173 of the Constitution in the light of the principles laid down by this Court in Jyoti Prakash Mitter s case
The High Court in our considered opinion should have thrown out the petition under article 226 of the Constitution at the very threshold because the President of India was seized with the question under Article 2173 of the Constitution
Indeed it appears from the judgment of the 731 High court that when the learned counsel for the Union of India A informed the Court that the President of India is seized with the question the counsel for the appellant conceded that the writ of quo warranto is not maintainable
The special leave petitions are accordingly dismissed
GN Petitions dismissed


Summary:
 A tenant Mr Sequeira wanted to prefer an appeal to the Supreme Court against an order of the High Court confirming an order of eviction passed against him in respect of his business premises and engaged the appellant an Advocate of the Supreme Court to file the appeal
The AdvocateAppellant filed a petition for Special Leave in the Supreme Court
The petition came up for hearing on 22111971 and was dismissed as withdrawn
The tenant thereupon filed a suit in the Court of the District Munsiff against the appellant for damages and compensation on the allegations that the appellant had been negligent in rendering professional service and had misconducted himself by filing the appeal after considerable delay giving misleading information about the filing of the appeal and withdrawing the appeal instead of canvassing for its admission and that as a result of the withdrawal of the appeal he was evicted from his business premises in consequence whereof he had incurred loss of income and business besides suffering mental agony worry and loss of reputation
The plaintiff claimed compensation under various heads
The appellant filed a written statement refuting the charges levelled against him in the plaint and disputing the plaintiff s right to seek damages
During the pendency of the suit the plaintiff died and his legal representatives the respondents in this appeal filed a petition under order XXII Rule 31 of the Code of Civil Procedure for their substitution in the suit for prosecuting the suit further
The appellant opposed the petition on the grounds inter alia that the suit abated on the death of the plaintiff as per ahe maxim Actio Personalis cum moritur persona
The Trial Court 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 be impleaded and continue the suit
This appeal was filed by special leave against the order of the High Court
Dismissing the appeal the Court 607  HElD The High Court which in deciding the Revision before it followed Krishan Behari Sen vs Corporation of Calcutta ILR 31 Calcutta 993 had not followed the correct ratio
Section 306 of the  which corresponded to section 89 of the Probate and Administration Act 1881 set out the rights of the Executors and Administrators to continue actions of or against a deceased person
Section 306 was almost a re production of section 89
In so far as the rights of a legal representative to proceed with a suit filed by a deceased plaintiff were concerned order XXII Rules I and 31 governed the matter
611C F The maxim action personalis cum moritur persona  had been applied not only to those cases where a plaintiff died during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff died during the pendency of an appeal to the Appellate Court be it the first Appellate Court or the second Appellate Court against the dismissal of the suit by the Trial Court andlor the first Appellate Court as the case might be
This was on the footing that by reason of the dismissal of the suit by the Trial Court or the first Appellate Court as the case might be the plaintiff stood relegated to his original position before the Trial Court 614G H 615A  Though section 306 spoke only of executors and administrators
and order XXII Rule 3 Civil Procedure Code set out the rights of the legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survived the Courts had taken the view that the legal representatives stood on par with the executors and administrators regarding their right to seek impleadment to continue the suit
There was unanimity of view among many High Courts regarding the interpretation to be given to the words other personal injuries not causing the death of the party occurring in section 306 of the 
Preponderant view taken by several High Courts found acceptance with this Court in Melepurath Sankumari Ezhu Thassan vs Thekittl Geopalankutty Nair Al
It was on account of these factors the Court expressed its disapproval of the view taken by the High Court in this case
615E F H 616A B What now fell for consideration in this case was whether the suit filed by the plaintiff was founded on torts or contract
In view of the fact that this aspect of the matter had not been considered by the Trial Court the Court did not think it proper to express any opinion one way or the other as to whether the suit cause of action was founded on torts 608 or contract
Having regard to the nature of the claim the Court was not able to comprehend how without any enquiry and recording of evidence the Trial Court and the High Court had proceeded on the basis that the suit claim was based only on tortious liability though the two courts had reached different conclusions about abatment of the suit
Since no discussion had been made and no finding rendered on this question and since the Court could not render any finding on the basis of the materials on record whether the suit was based on the personal injuries sustained by the plaintiff or upon the loss suffered by the estate the Court thought the proper course would be to allow the judgment under appeal to stand even though the Court did not approve the reasoning of the High Court
The matter was left upon for the trial Court to decide whether the suit was founded entirely on torts or on contract or partly on torts and partly on contract and deal with the matter according to law
If the entire suit claim was founded on torts the suit would undoubtedly abate
If the action was founded partly on torts and partly on contract then such part of the claim as related to torts would stand abated and the other part would survive
If the suit claim was founded entirely on contract then the suit had to proceed to trial in its entirety and be adjudicated upon
616C 617G H 618B d A legal practitioner could not claim exemption from liability to be sued in respect of any loss or injury suffered by the client due to any negligence in the conduct of his professional duties merely by reason of his being a legal practitioner
Whether section 2b of the  would afford protection to a legal practitioner from being sued for negligence by a client if he only pleaded or agreed to plead was a matter for judicial determination in an appropriate case
For the present the Court did not express any opinion on the matter except pointing out that there was a specific provision in the  saying that the legal practitioners would also be liable to be sued by their clients if they had been negligent in the performance of their professional duties
In conclusion since the Court found that the question whether the suit had abated or not could be answered only after the nature of the suit was determined on the basis of the materials placed and the evidence adduced by the parties the appeal had to be dismissed
The suit would stand restored to the file of the trial Court for disposal in accordance with law in the light of the guidelines given by the Court in this Judgment
621G H622A C Krishna Behari Sen vs Corporation of Calcutta ILR
31 Calcutta 993 Rustomji Dorabji vs WH Nurse ILR 44 Madras 357 Motilal 609 Satyanarayan  Anr
vs Harnarain Premsukh  Anr  Palaniappa Chettiar vs Rajah of Ramnad ILR 49 Madras 208 Irulappa vs Madhava AIR 1951 Madras 733 Arnuchalam vs Subramanian AIR 1958 Madras 142 Gopal vs Ram Chandra ILR XXVI Bombay 597 Maniramlala vs Mtz
Chalti Bai  Anr ILR 1938 Nagpur 280 Baboo vs Subanshi ILR 1942 Nagpur 650 Baboolal vs Ramlal AIR 1952 Nagpur 408 Punjab Singh vs Ramautar Singh AIR 1920 Patna 841 Joginder Kaur vs Jagdish Singh AIR 1964 Patna 548 Ratanlal vs Baboo lal AIR 1960 Madhya Pradesh 200 G Jaya Prakash vs State AIR 1977 Andhra Pradesh 20 DK Cassim  Sons vs Sara Bibi ILR XIII Rangoon 385 Melepurath Sankunni Ezhuthassan vs Thekittil Geopalakutty Nair  Hedley Byrne  Co Ltd vs Heller  Partners   Rondel vs W  Rondel vs Worsley  1967 3 All
ER 993 Heywood vs Wellers    Midland Bank Trust Co Ltd  Anr vs Hett Stubles  Kemp and Re Bell s Indenture Bell  Anr
vs Hickley  ors
  referred to