Messrs Murray and Co. vs Kesar Bai and others

Srinivasan, J.—The second defendant in the suit is the appellant. The appeal is directed against the order of the learned Master allowing the application of the legal representatives of the deceased plaintiff to come on record in the suit and to continue the suit. The learned Master held that the right to sue survives and that the contention to the contrary advanced by the second defendant and the 38th defendant, an employee of the second defendant, could not be accepted, and it is this order of the learned Master that is canvassed in this appeal. Mr. L. V. Krishnaswami Aiyar for the second defendant urges that on the pleadings in the suit the cause of action rested solely upon the conspiracy alleged to have been entered into by the several defendants in the suit, and according to him the conspiracy is in the nature of personal wrong, the right to sue in respect of which cannot survive. This proposition can only be examined after scrutinising the pleadings in the plaint. The deceased plaintiff imported a certain quantity of electric bulbs and for some reasons that are not necessary to be stated, he was notable to clear the goods. According to him the Port Trust, the first defendant, purported to bring the goods to sale apparently for a claim for Port dues and other charges payable by the importer. Without any notice to him it is stated the Port Trust filed a bill of entry with the Customs authorities and had the customs duty payable thereon assessed and an auction sale was directed to be held by the second defendant, auctioneers, for the recovery of both the charges due to the Port Trust and the dues payable to the Customs. It was the case of the plaintiff that a body of merchants who are defendants 3 to 37 formed themselves into a ring in order to get the bid at the auction at a very low figure and that with this object, it was the charge of the plaintiff, that the auctioneer, second defendant, and its employee, the 38th defendant colluded. As a result of this auction, properties would appear to have been sold and the further charges levelled against the Port Trust was that in utter violation of the rules and without any notice to the owner of the goods the properties were also delivered to the successful bidder at the auction. It is upon these facts that the suit was brought by the plaintiff for recovery of damages which he assessed at 11/2 lakhs. It is not necessary to traverse the other parts of the plaint which sets out the several violations of the law or regulations; but confining ourselves only to this aspect of the conspiracy and the purpose of the conspiracy it is orderly established in the pleadings that the conspiracy was engineered with the intention of causing pecuniary loss to the plaintiff by the improper procuring of the sale of his properties with corresponding advantage to the defendants.

The learned Master took the view that upon the pleadings it could not be said that the claim of the plaintiff arose out of a personal wrong. He was of the opinion that since it was alleged that as a result of the conspiracy there was loss of property to the plaintiff such an action must survive to the legal representatives.

Learned Counsel for the second defendant has drawn my attention to a decision of the Full Bench of this Court in Rustomji Dorabji v. Nurse (44 Mad. 357=14 L. W. 200 (F.B.)). In the judgment of Kumaraswami Sastri, J. Blackstone''s definition of ''private wrongs'' is extracted and it is in these terms:

Personal acts are such whereby a man claims a debt or personal duty or damages in lieu thereof and likewise whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts and the latter upon torts or wrongs of the former nature are all actions upon debt or promises : of the latter all actions for trespass, nuisances, assaults, defamatory words and the like.

The attempt on the part of the learned Counsel for the second defendant is to bring the present action within the scope of the last part of the above extract. A conspiracy may be of various kinds. It may be one with intent to injure reputation of a person or to cause loss to him pecuniarily. It is the ultimate result of the conspiracy that gives rise to the cause of action and not the mere existence of a conspiracy which is not put through. If, therefore, in the present case, the conspiracy was for the purpose of causing pecuniary loss to the plaintiff and loss is alleged to have been so caused, I am wholly unable to see how it can be maintained that the legal representatives of the deceased plaintiff cannot continue the action. I can find no support for the proposition advanced by the learned Counsel for the second defendant that the facts of the present case bring if within the scope of personal wrong of the kind in respect of which the right to sue will not survive. The conclusion reached by the learned Master is correct. This appeal is dismissed with costs.