KURIAN GEORGE v. SUSAN JOSEPH and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA,** ## **1945** **CRP NO. 178 OF 2021** **AGAINST THE ORDER/JUDGMENT OS 273/2013 OF MUNSIFF COURT,** ## **PUNALUR** ## **REVISION PETITIONER/S:** KURIAN GEORGE AGED 77 YEARS S/O.T.K.GEORGE, THEKKINKADU NEW HOUSE, MAVILA, AGASTHYACODU, AREEPLACHI P.O., ANCHAL VILLAGE, KOLLAM DISTRICT. BY ADVS. JOHN VARGHESE SRI.A.L.GEORGE ## **RESPONDENT/S:** 1 SUSAN JOSEPH W/O.JOSEPH GEORGE, PALMSHADE VILLA, VADAVATHOOR, KOTTAYAM - 686 010. 2 JITHIN JOSEPH S/O.JOSEPH GEORGE, PALMSHADE VILLA, VADAVATHOOR, KOTTAYAM - 686 010. 3 RENJEETHA DANIEL D/O.JOSEPH GEORGE, PUTHENPURACKAL HOUSE, SANKARAYYA ROAD, POONTHOLE P.O., THRISSUR - 680 004. BY ADVS. P.B.KRISHNAN SABU GEORGE MANU VYASAN PETER P.B.SUBRAMANYAN B.ANUSREE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24.11.2023, THE COURT ON 30.11.2023 DELIVERED THE FOLLOWING: CRP No.178 of 2021 -2- **“CR”** ## **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 CRP No.178 of 2021 -3- 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 CRP No.178 of 2021 -4- 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]**_ . CRP No.178 of 2021 -5- 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. CRP No.178 of 2021 -6- 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 from the other or to claims for damages on the ground of adultery.”_ The proviso to Section 2 carves out an exemption to the general rule that, on the death of any person in a suit for compensation based on CRP No.178 of 2021 -7- damages sustained due to tortuous acts, all causes of action subsisting or vested in that person shall survive against, or, as the case may be, for the benefit of, his estate. Going by the proviso, the cause of action will not survive on the death of the person claiming damages against certain acts. The learned Munsiff, instead of deciding whether the prohibition under the Act affects the maintainability of the suit, decided to take up the issue of maintainability along with the other issues on the premise that Order XIV Rule 2 warrants a decision on all issues framed. The said finding cannot be sustained, since the issue of maintainability based on the question of whether the prohibition under the proviso to Section 2 of the Act would apply or not is a pure question of law. As such the requirement of pronouncing judgment on all issues will not apply. This position is clear from the scrutiny of Order XIV Rule 2 of CPC standing CRP No.178 of 2021 -8- ## extracted hereunder; ## “ _2._ _**Court to pronounce judgment on all**_ ## _**issues** .—_ _(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions - of sub rule (2), pronounce judgment on_ _all issues._ _(2) Where issues both of law and of fact arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try_ _that issue first if the issue relates to—_ - _(a) the jurisdiction of the Court, or_ _(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been_ _determined, and may deal with the suit in accordance with the decision on that issue.”_ CRP No.178 of 2021 -9- 9. Though, as per sub-rule (1) of Rule 2 of Order XIV, the court is bound to pronounce judgment on all issues, that requirement is subject to sub-rule (2) of Rule 2. Going by subrule (2), if the court is of the opinion that the case or any part thereof can be disposed of on an issue of law only, that issue can be tried first. This exemption is subject to the issue of law being with respect to either the jurisdiction of the court or bar to the suit created by any law for the time being in force. The words _the case or any part thereof may be disposed of on an issue of law only_ and _may deal with the suit in accordance with the decision on that issue,_ makes it abundantly clear that if a pure question of law is tried as the preliminary issue and the suit is found not maintainable or barred by any law, the court need not pronounce judgment on the other issues. The legal position has been succinctly laid down by a learned Judge of this CRP No.178 of 2021 -10- Court in _**State Bank of India v. Jancy Jose and Others [2015 (5) KHC 473]**_ . The erudite exposition at paragraph 8 of that judgment being relevant is extracted hereunder; _“8. O.14 R.2(2) mentions the issues which may be heard as preliminary issues. It should either relate to the jurisdiction of the Court or a statutory bar. If the decision depends upon existence of facts which are to be proved at the trial, it cannot be heard as a preliminary issue. If the finding on the preliminary issue is that the Court has no jurisdiction or the suit is barred by the law of limitation, it is liable to be dismissed. If the finding is in favour of the plaintiff, the Court shall proceed with the trial of the suit. When the result of finding on the preliminary issue is that the suit is not maintainable, it brings an end to the litigation between the parties. On the basis of the finding on the preliminary issue in such cases the Court shall pronounce a judgment. The Court need not pass an order first and thereafter, a separate judgment on its basis. It can be a composite one labelled_ CRP No.178 of 2021 -11- _judgment making the order on the preliminary issue a part of it. The Court shall discuss the preliminary issue first and after deciding it record that in view of the finding on the above issue the suit is dismissed. The last paragraph should be the result. i.e. dismissal of the suit, which will be the decree. If a separate order is passed on the preliminary issue, it shall be followed by a separate judgment declaring that in view of the finding on the preliminary issue the suit is liable to be dismissed, and the Court shall pass a decree accordingly.”_ Thus, as held by the Supreme Court in _**Nusli**_ ## _**Neville Wadia v. Ivory Properties and Others**_ _**[(2020) 6 SCC 557]**_ **,** Order XIV Rule 2(2)makes a departure from the mandate in Order XIV Rule 1 that the court should pronounce judgment on all issues. The above being the legal position, the issue as to maintainability raised by the revision petitioner, relying on a statutory bar, is bound to be considered as the preliminary issue. CRP No.178 of 2021 **==> picture [23 x 8] intentionally omitted <==** For the aforementioned reasons, the civil revision petition is disposed of as under; i. The decision to consider the issue as to the maintainability of the suit along with other issues is set aside. ii. The court below shall consider the issue of maintainability of the suit as the preliminary issue. iii. It is made clear that this Court has not considered the applicability or otherwise of the proviso to Section 2 of the Act and the court below may take appropriate decision on the issue. ## **V.G.ARUN JUDGE** Scl/