1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4179 OF 2009 Balaji s/o Pandurang Amle, R/o-Shanti Doot Nagar, Khandoba Bazar, Parbhani. ...PETITIONER. VERSUS Ashroba s/o Sakharam Shinde, expired, through his legal heirs: 1) Dagdabai w/o Sakharam Shinde, R/o- Kupta, Tq-Sailu, Dist-Parbhani, 2) Parubai w/o Ashroba Shinde, R/o- Kupta, Tq-Sailu, Dist-Parbhani, 3) Sakharam s/o Ashroba Shinde, Age-12 years, 4) Pralhad s/o Ashroba Shinde, Age-9 years, 5) Nitin s/o Ashroba Shinde, Age-3 years, 6) Nikita d/o Ashroba Shinde, Age-3 years, (Respondent Nos. 3 to 6 are minors and under guardianship of their natural mother Respondent No.2.) ...RESPONDENTS. 2 ... Mr.M.N. Kalani Advocate for Petitioner. Mr.N.R. Jamdhade Advocate for Respondent Nos.1 to 6. ... CORAM: K.K. TATED, J. DATE : 14TH SEPTEMBER, 2009. PER COURT : 1. Heard learned counsel for the Petitioner and learned counsel for Respondent. Present Petition preferred by the Petitioner - original defendant under Articles 226 and 227 of the Constitution of India challenging the order dated 1st April, 2009 passed by Civil Judge, Senior Division, Parbhani, below Exhibit 38 in Special Civil Suit No.50 of 2007 by which the trial Court allowed the Respondents - original plaintiff's application for bringing legal heirs on record of deceased plaintiff. A few facts of the present case are as under: . The predecessor of Respondents - Ashroba Sakharam Shinde filed Special Civil Suit No.50 of 2007 in the Court of Civil Judge, Senior Division, Parbhani claiming damages to the tune of Rs.1,10,000/- from the Petitioner 3 - original defendant on account of malicious prosecution and defamation in fictitious case bearing No. S.C.C. No. 30 of 2001, along with interest at the rate of 18% per annum from the date of filing of the suit till its realization. The Respondent - original plaintiff specifically stated in Para 5 of the Plaint that he spent sum of Rs.1,10,000/- on advocates fees and traveling expenses etc. Para 5 of the Plaint reads as under: "5. That the plaintiff is labourer and he earns more than Rs.12,000/- per year i.e. Rs.1000/- per month and plaintiff has given fees to his advocate of Rs.10,000/- and he expended more than Rs.16,000/- for the attending the Court and traveling expenses. The yearly income of Rs.12,000/- X 6 years = Rs.72,000/- Plus two months income of Rs.2000/- and + Rs.10,000/- for advocate frees, and Rs.16,000/- for traveling expenses and mental agony of Rs.10,000/-. Thus the total amount of Rs. 1,10,000/- approximately expended by the plaintiff for the criminal case." 3. During the pendency of proceeding of Special Civil Suit No.50 of 2007, original plaintiff expired on 10th December, 2008 and therefore the present Respondents - legal heirs of original plaintiff filed application 4 below Exhibit 38 for bringing them on record as legal heirs of deceased plaintiff. 4. Learned counsel appearing on behalf of the Petitioner - original defendant submitted that in view of Section 306 of the Indian Succession Act, cause of action does not survive after the death of the original plaintiff in present case. Section 306 of the Indian Succession Act reads as under: "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 or or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, 1860 or other personal injuries not causing the death of the party; and 5 except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory." 5. Learned counsel for the Petitioner further submitted that as the original plaintiff filed suit for recovery of damages for malicious prosecution, the cause of action does not survive on the death of original plaintiff. In support of his contention, learned counsel for the Petitioner relied on the Authority in the matter of Melepurath Sankunni Ezhuthassan vs. Thekittil Geopalankutty Nair, reported in A.I.R. 1986, Supreme Court, Page 411. In that case, the Apex Court held that cause of action for defamation does not survive after the death of the plaintiff. Learned counsel for the Petitioner also relied on the Judgment in the matter of M. Veerappa vs. Evelyn Sequeira and others, reported in A.I.R. 1988 Supreme Court, Page 506. In that case the Apex Court held that on the death of plaintiff the suit abates if claim is founded entirely on torts but survives if claim is based entirely on contract. On the basis of these submissions, learned counsel for the 6 Petitioner submitted that the impugned order passed by the Civil Judge, Senior Division, Parbhani below Exhibit 38 in Special Civil Suit No.50 of 2007 is liable to be set aside because the original plaintiff filed the suit for damages on account of malicious prosecution and defamation in proceedings against him. 6. I have gone through the copy of the Plaint annexed by the Petitioner which is at Exhibit A to the Petition. In the Plaint, it is specifically stated that original plaintiff filed suit for recovery of the amount spend by him on travelling, advocate fees etc. It is to be noted that a suit for damages for malicious prosecution does fall under the category of personal injuries. But in the present case the original plaintiff filed suit for recovery of the expenses incurred by him for defending the case filed by the Petitioner. Therefore both the authorities cited by the Petitioner as above not applicable in present case. Considering these facts, I do not find any illegality in the order passed by the Civil Judge, Senior Division, Parbhani below Exhibit 38 in Special Civil Suit No.50 of 2007, allowing the Respondents' application for bringing legal heirs on 7 record of original plaintiff. Writ Petition is dismissed summarily with no order as to the costs. [K.K. TATED, J.] asb/SEPT09/wp4179.09