Bansilal vs Dulichand

Shiv Dayal, J.—This second appeal arises from a suit for the recovery of Rs. 2,000/- as damages for battery. The Appellant's case was that because of previous ill-will and strained relations between the parties, Dulichand (Defendant No. 1) and Ganesh (Defendant 2) appeared at the place where the Plaintiff was cutting his grass. Defendant 1 gave a severe lathi blow on the Plaintiff's head, while Defendant 2 struck his lathi on the Plaintiff's left arm as a result of which Plaintiff fell down. The first Defendant dealt another forceful lathi blow on the Plaintiff's left arm and yet another blow on the ribs. The Plaintiff averred that he was again given many more lathi blows by the Defendants. He became unconscious as a result of Defendants'' grievous assault. The suit was resisted by both the Defendants. The trial Court passed a decree for Rs. 500/- in favour of the Plaintiff against both the Defendants and dismissed the rest of the claim. On the Defendants'' appeal the learned Additional District Judge dismissed the suit. The Plaintiff preferred this second appeal against both the Defendants (Respondents 1 and 2).

Ganesh (Defendant 2) died in the year 1964. The appeal has abated so far as he is concerned. Mr. S.C. Pandey, learned Counsel for the surviving Defendant, Dulichand, contends that the appeal has abated in its entirety. Mr. P.C. Verma, learned Counsel for the Appellant, relies on 5". S. Chatterji Vs. Dr. T.B. Sarwate and Others, . In my opinion, the preliminary objections must be rejected.

It is clear law that all persons acting unlawfully in pursuance of a common end are held liable for the entire result.

In Raydon's case 77 E.R. 1150 (1151) it was held:

All coming to do an unlawful act, and of one party the act of one is the act of all of the same party being present.

Therefore, on the plaint allegations, each of the Defendant would be liable for the entire damages, even if only one committed the battery. The liability of the joint tortfeasors is joint and several for the whole damage and the person injured may sue all or any of them severally for the whole loss, or all of them jointly in the same action.

In the case of two joint tortfeasors, if the amount of damages is recovered from one of them, he is entitled to contribution from the other. The rule in Merryweather v. Nixan (1799) 8 T.R. 186 was modified in its application even in England. The precise scope of that rule was never clearly and uniformly formulated. Lord Herschell, L.C. in Palmer v. Wick and Pulteney Town Steam Shipping Co. (1894) A.C. 318 (324), observed that the rule did not appear to him to be founded on any principle of justice or equity, or even of public policy. There was certainly a tendency to limit its application. The rule did not extend to wrongful acts done by mistake in ignorance of their real character. Now, the rule is no longer law in England since the enactment of the Law Reforms (Married Woman and Tortfeasors) Act, 1935. In our country, the trend of decisions regarding the applicability of the rule in Merryweather (supra) has not been uniform. So far as this Court is concerned, there is a direct authority in Khushalrao v. Baburao ILR 1942 Nag. 1 where Sir Gilbert. Stone C.J. speaking for the Court, after an elaborate discussion, observed that the rule in Merry-weather does not apply in India.

It appears to me that in a case where the Plaintiff chooses to sue both joint tortfeasors and then allows the suit to abate as regards either, the whole suit will abate inasmuch as the surviving tortfeasor will lose his right of contribution because of the Plaintiff's default. If he had not sued the deceased wrong doer, but had sued only the surviving wrong doer, the latter would have had a right of a contribution. This does not seem to have been considered in S. Chatterji Vs. Dr. T.B. Sarwate and Others, But I need not enter into a detailed discussion about it; nor is this an occasion for referring the matter to a larger Bench because of what I am going to say presently. In a case where the doctrine "actio personalis tnoritur cum persona" (personal action dies with the person) applies, ''there is no right of contribution as against the heirs of a deceased tortfeasor. That being so, where a suit abates as against one of them, it will not abate as against the surviving tortfeasors. In such a case, the abatement as against the deceased wrong doer stands in no different position than if the Plaintiff had not sued him at all, because in the latter case also, the liability of the deceased would have ended on his death and thereafter his heirs or legal representatives were not liable for contribution.

The maxim "actio personalis tnoritur cum persona" was also the subject matter of criticism and was considered as unfair particularly when applied to a case where the injured party was denied redress because of the wrong doer's death. It is now settled law that an action may be maintained against executors, or administrators, or heirs, or representatives of a deceased person for any wrong committed by him in his life time for which he would be subject to an action (subject to the law of limitation). The exceptions are cases of defamation, assault, as defined in the Indian Penal Code and other personal injuries not causing death of a party.

On this analysis, since a cause of action for assault injury dies with the wrong doer, and this being such a case, there is no right of contribution against heirs of the other joint tortfeasor. This appeal therefore, survives against the surviving Defendant notwithstanding the fact that it has abated so far as the deceased Ganesh is concerned. The preliminary objection is rejected.

Averting now to the merits of the case, it must at once be stated that the learned Judge of the first appellate Court was in error when he held that the father of the defendant was a necessary partly just because real enmity was with him. To me it seems quite plain from the plaint allegations that it was not Tulsiram who caused any bodily injury to the Plaintiff. He, therefore, could not be jointed as a Defendant in the suit.

This brings us to the main question whether the Respondent gave any beating to the Appellant and if so whether he was justified on the ground of private defence of property. The lower appellate Court has held that the Plaintiff could not prove his ownership to the Bandhia. But it ignored the Defendant's submission that Bandhia was constructed by Plaintiff. This is conceded by Mr. Pandey, learned Counsel for the Respondent. It was also not the Defendant's case that it was not a Bandhia but a mendh (boundary). The Bandhia being of the Plaintiff, he was entitled to cut grass and the Respondent had no right of private defence of property. It was fully established by the evidence of Dr. Ramhidhami (P.W. 3) that the Plaintiff, had a number of injuries on his person. The Doctor examined him on the very day of the incident. His report is Ex. p. 2. The learned trial Judge relied on his evidence (paragraph 27 of judgment).

The trial court, no doubt, found that the Plaintiff's allegation that his 7th rib was fractured and the left arm became permanently disabled, were not proved. The trial Judge however, did not place reliance on the evidence of Dr. Warang (P.W. 11) Radiologist, because the original X-ray photograph, which he took, was not produced. There is no finding of the first appellate Court that the Plaintiff did not suffer any injury or pain-physical or mental. It is a different matter that the extent of the injury as alleged by the Plaintiff was not proved.

Bearing his own statement, the alleged injury sustained by the Defendant is not proved. The learned Additional District Judge erred in relying on the statement of Dr. Ramhidhami. His evidence does not support the Defendant that he sustained injuries. It being so, the lower appellate Court was wrong in thinking that this was a case of a free fight and therefore, neither party was entitled to damages.

The result of the above discussion is that the Plaintiff is entitled to damages for the physical and mental injuries suffered by him.

As regards the quantum of damages, the trial Court fixed Rs. 500/-. The first appellate Court held that the amount fixed was excessive. However, the learned Additional District Judge himself did not arrive at any figure because, in his opinion the suit was liable to be dismissed. In Mayne and McGregor on Damages, it is stated in paragraph 783 thus:

It is virtually impossible to give clear guidance on amounts varying as they do with the particular injury, the particular circumstances and the particular judge.

The injuries which the Plaintiff sustained were three minor contused lacerated wounds the dimensions not exceeding 1" x 1/2". Besides, there were 8 bruises, four on the arm, three on the shoulder and chest, and one on the left calf. In my opinion Rs. 200/- (Rupees two hundred only) would be the reasonable amount of damages to be awarded to the Plaintiff.

The Respondent has filed cross-objections claiming Rs. 1069/- as damages to the Bandia. On the finding already reached the cross-objections must be dismissed.

In the result the appeal is partly allowed. The judgment and decree of the first appellate Court are set aside and those of the trial Court are restored with the modification that the Plaintiff shall get Rs. 200/- (Rupees two hundred only), as damages and proportionate costs on that amount in all the Courts from the Defendant.