S. No. 45 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No. 365/2024 Shabir Ahmad Rather …Appellant/Petitioner(s) Through: Mr. Gulzar Ahmad Bhat, Advocate Vs. Abdul Rehman Rather and Ors. ...Respondent(s) Through: Mr. Towseef Mohammad Khan, Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 15.07.2025 Through the medium of this petition, the petitioner prays to set-aside and quash order dated 05.12.2023 passed by the court of 3rd Additional District Judge, Srinagar, dismissing application for bringing on record legal heirs of deceased defendant as also dismissing the suit as having become abated, on the grounds mentioned therein. Petitioner approached the Trial Court in terms of Order 33 Rule 1 CPC, permitting him to institute a suit as an indigent person, and passing a decree of Rs. 20.00 Lakhs in his favor and against defendant namely Riyaz Ahmad Rather for the physical damage caused by the said deceased defendant by attacking him. While the case was pending before the Trial Court defendant, Riyaz Ahmad Rather died in the month of July 2020 and as a consequence of which plaintiff/petitioner filed an application for bringing on record the legal heirs of deceased defendant. Trial Court by order impugned dismissed application as also suit. According to counsel for petitioner, the claim in the suit is for damages resulting from a beating and injuries sustained by the plaintiff at the hands of deceased defendant. The injuries caused to the plaintiff made him disabled, unable to seek permanent employment, and deprived him of future earnings and business opportunities. FIR was also registered under Section 341 and 325 and is pending before the Court. The claim was based on an assault committed by the deceased defendant. It is clear that on account of the personal act of the deceased defendant compensation is sought. The question is as to whether the claim for compensation will survive upon death of defendant inasmuch as the claim is a personal action against the deceased defendant. Answer to the said question is no because law is already settled on such issue that too by the Supreme Court in Puran Singh and Ors vs. State of Punjab and Ors, AIR 1996 SC 1092, in which it has been said that a personal action dies with the death of the person on the maxim “action personalis moritur cum persona”, and this operates in limited class of actions ex delicto, such as action for damages for defamation, assault or other personal injuries not causing the death of the party. In M. Veerappa vs. Evelyn Sequeira & Ors. AIR 1988 SC 506, it has been laid down that in any action for damages if the claim is found entirely on torts, the suit would abate and it would survive only if the claim is based entirely on contract. Since the relief sought was in respect of an action for the damage for assault and the injuries caused due to the act of the deceased defendant the trial court while relying upon various judgments has held that the suit has abated. The defendant against whom the damages or tort have been claimed by the plaintiff is in respect of an action in his personal capacity, has died, therefore, such liability on account of such act would not devolve upon the legal heirs of the defendant after his death. The Trial Court while dealing with this issue in detail relying upon the judgments held that the suit cannot survive because the liability will not devolve upon legal heirs of deceased. On account of the personal action of the said deceased an application to substitute legal heirs has been rightly rejected and the Trial Court has correctly said that the plaintiff’s suit is abated. This abatement occurred because the right to sue does not survive. Having gone through the judgment passed by the Trial Court and found that suit does not survive so far as the legal heirs are concerned because the claim is in respect of a personal action of the deceased defendant does not survive, the Trial Court has found no merit in the suit. It is made clear here that there is no merit in instant petition inasmuch as no illegality in the Trial Court’s order can be found. Consequently, the petition stands dismissed. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 15.07.2025 Shabroz