Permanent Injunction Sought For Against A Particular Person Must Confine To That Person: Madras High Court

Justice N Anand Venkatesh of Madras High Court was hearing a second appeal filed by one A.Ganesh against the order the judgment and decree of Subordinate Judge, Vellore confirming the judgment and decree of Principal District Munsiff, Vellore.

The case of the of the plaintiff is that the first defendant was given license by the second defendant corporation to run a flower shop. The plaintiff had also entered into an agreement with the second defendant corporation for the possession of the shop for a consideration of one lack rupees. Further the defendant had agreed to change the name of the shop in the name of the plaintiff by making an application to the second defendant corporation. Till then, the plaintiff agreed to pay the monthly rent to the municipality.

The grievance of the plaintiff was that the first defendant acted against the agreement and attempted to interfere with the possession and enjoyment of the suit property.

The courts below had concurrently held against the plaintiff and had dismissed the suit. The courts below had stated that the property was allotted to the first defendant and that the documents relied by the plaintiff stood in the name of the first defendant.

While the second appeal was pending before the court, the first respondent died and his legal heirs were impleaded in the suit. This point was considered in detail by the court.

The court identified that all the allegations of interference with possession and enjoyment of suit property were made against the first defendant in his individual capacity. The court then went on to analyse the principle of Actio personalis moritur cum persona. The court observed that –

"The Hon'ble Supreme Court had an occasion to deal with this issue in Prabhakara Adiga vs Gowri And Others reported in (2017) 2 CTC Page 208. While dealing with this issue, the Hon'ble Supreme Court held that the Actio personalis moritur cum persona principle will apply when the decree relates to a class of action which is individual centric and the relief is focussed upon the wrong committed by that person. This principle will not apply where the decree relates to a property or a right which is heritable by the legal representatives and which is partible and it would bind the legal representatives also."

In the present case, since licence was granted by the municipality specifically in the name of the first defendant to run flower business, the license comes to an end with the death of the allottee. Such a right is not heritable. Therefore, the allegation of the plaintiff confines itself to the first defendant and on his death, the cause of action automatically dies.

"….the cause of action that was pleaded in the suit as against the first defendant came to an end on the death of the first defendant applying of the Actio personalis moritur cum persona principle. Thereafter, it will depend upon the action taken by the second defendant Municipality for allotment of the shop. If during this process, relief is granted in favour of the plaintiff, it will virtually amount to injuncting the Municipality to proceed further with the allotment of the shop. This is more so since the legal representatives of the first defendant do not have any automatic right of being granted licence by the second defendant Municipality. In such peculiar circumstances, this Court does not want to deal with the findings of both the Courts below." the court further added.

Mr. C.P Sivamohan appeared for the appellant while the respondents were represented by Mr. D. Gopal and Mr. Jaseem Mudassar Ali.

Case Title - A. Ganesan v. Javeed Hussain (died) and Ors.

Case No – SA No. 1383 of 2013

Citation - 2022 LiveLaw (Mad) 130