SHAMIM AKHTAR Versus FATIMA BI

SARDAR SAID MUHAMMAD KHAN, C.J. ‑‑‑This appeal has been directed against the judgment and decree of the High Court, dated 23‑9‑2000, whereby the appeal filed by the respondent, herein, was accepted.

2. The brief facts of the case are that a suit for the recovery of Rs.2,69,250 as damages was filed by the plaintiff‑respondent against Muhammad Resham Khan, the predecessor‑in‑interest of the appellant. During the pendency of the suit, Resham Khan died and the appellants, herein, who are his legal representatives, were brought on record. They filed an application that the plaintiff‑respondent had no cause of action against them and the suit should be dismissed on this sole ground. The learned District Judge framed an additional issue on 7‑11‑1996 and after hearing the parties dismissed the suit vide his order, dated 30‑4‑1997. The respondent filed an appeal before the High Court which was accepted by the High Court observing that as the suit was not for malicious prosecution but for the recovery of damages, the plaintiff‑respondent had the cause of action to continue with the suit against the appellants even after the death of Resham Khan, their predecessor‑in -interest. It was further observed by the High Court that the objection raised by the learned counsel for the appellants that the separate suit could not be filed for the recovery of costs incurred on litigation could not be decided because the same was not covered by the issue framed.

3. Sardar Shamshad Hussain Khan, Advocate, the learned counsel for the appellants, has argued that the High Court has committed an error in holding that the suit filed by the respondent for claiming damages could be proceeded against after bringing the legal representatives of Resham Khan on record. The learned counsel has argued that in cases of torts, the right to sue does not survive after the death of plaintiff or defendant and such a suit entails dismissal. The learned counsel has further argued that the High Court was not correct in holding that a suit for damages was n competent if the damages pertained to malicious criminal proceedings and not to malicious civil proceedings. The learned counsel has argued that the suit for damages for malicious civil proceedings is also competent in special cases. Therefore, even if a suit is filed for damages alleging that previous civil suit was malicious and without a reasonable cause, the right to sue does not survive to the concerned plaintiff. The learned counsel has referred to the following cases in support of his contentions:‑‑‑

In a case reported as Mercantile Co operative Bank Ltd. v. Messrs Habib & Co. (PLD 1967 Karachi, 755), it has been held that in a suit for recovery of money of bank against its Auditor on the basis that during the period of several years, the Auditor has acted negligently in discharging his duties; there was no allegation of fraud, dishonesty or misappropriation on the part of defendant. Therefore, the action was clearly one for torts and, thus, the legal representatives of the defendant could not be brought on record because the action vanished with the death of the original Auditor.

In a case reported as Mohamed Amin v. Jogendra Kumar Bannerjee (AIR 1947 P.C. 108), it was observed as under:‑‑‑

"The reasons why an action does not lie for falsely and maliciously prosecuting an ordinary civil action is that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing. The defendant's reputation will be cleared of any imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party.

In a case reported as Rustomaji Dorabji v. W. H. Nurse (AIR 1921 Madras 1), it was held that in a suit for malicious prosecution, the right to sue does not survive and, thus, the legal representatives of the concerned plaintiff or defendant cannot be brought on the record.

Identical view was expressed in a case reported as Sardar Muhammad Ali v. Pakistan (PLD 1961 Karachi 88).

4. It is evident from the above mentioned authorities that it is not correct that a suit for damages in civil malicious prosecution is barred in all cases; such a suit would be competent if it is found that the concerned party could not be properly compensated by awarding costs in the original suit. Thus, in case of a civil malicious prosecution if the plaintiff or a defendant dies, the right to sue does not survive and such a suit cannot be proceeded with. In such a case there will be no distinction between the malicious criminal prosecution and malicious civil prosecution so far as the question of bringing the legal representatives of the deceased party on the record is concerned.

In the light of what has been stated above, we accept the appeal and set aside the judgment of the High Court holding that the suit filed by the respondent was no more maintainable after the death of Resham Khan, the predecessor of the appellants, herein. We make no order as to the costs.

H.B.T./210/SC(AJ&K) Appeal accepted.