Ld. Advocates representing both the parties are present. Ld. Advocate representing the complainant filed petition No.182/17 under order XXII Rule 3 r/w Section 151 of Civil Procedure Code, 1908 on 29.03.2017 praying for substituting the legal heirs/representatives in place of original complainant Krishna Kumar Vijaya who expired on 02.01.2017 in this complaint.

                                    Heard both sides upon the petition filed by the complainant.

                     On behalf of the complainant it is argued that the original complainant Krishna Kumar Vijaya filed this complaint against the opposite party Dr. Ramesh Kumar Agarwal. During pendency of the case said Krishna Kumar Vajaya died on 02.01.2017 leaving behind him his wife Smti. Radha Vijaya, his married daughter Smti. Madhulikha Hansaria and his son Shri Sunil Vijaya as his legal heirs. Petition No. 182/17 filed on behalf of the complainant is accompanied by Xerox copies of death certificate and next keen certificate and it was submitted as substantial question of right, title and interest of the deceased complainant do subsists in favour of his legal heirs and as such their names should be substituted in place of original complainant Krishna Kumar Vijaya. On the other hand the opposite party submitted written objection against petition No.182/2017 filed on behalf of the complainants under order XXII, Rule 3 r/w Section 151 of the Code of Civil Procedure, 1908. On behalf of the opposite party it is submitted that the complaint was filed by the deceased complainant in respect of his personal loss which was on his personal body and not on his property. This case was filed with claim by the deceased complainant in respect of the loss sustained by him on his body. The right of sue does not survive upon the person rather upon the property of the person and thus the right to sue does not survive upon the legal heirs of the deceased complainant. The relief claimed by the deceased complainant was in respect of his person which has extinguished on his death, there is no question or scope of any substantial right, title or interest, title or interest of the deceased complainant to substitute upon his legal heirs.

                                    After considering the arguments of both sides and after going the case records carefully this Commission holds its observations as follows :

                                    Order XXII, Rule 3 of the Civil Procedure Code, 1908 says that whether one of two or more plaintiff dies and the right to sue does not survive to the surviving plaintiffs or plaintiff alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survive, the Court, on an application made on that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. But in this particular case we have observed that the complaint filed by the complainants is in respect of his person and not in respect of his property. Section 306 of Indian Succession Act, in effect, provides that the right to sue does not survive in suits for the defamation, assault or other personal injuries not causing the death of the party; and also in cases where after the death of the party, the relief sought could not be enjoyed or granted it would be nugatory. The result is that the right to sue survives in such actions as suits for damages for breach of contract, suits for recovery of property, suits for recovery of debt. The personal cause of action, such as the personal requirement of the premises by the landlord, must perish with the death of the plaintiff and his legal representative could not continue the proceedings on his death. If the legal representatives were permitted to continue the proceedings, the lis will assume the complexion wholly beyond the compass of the original cause of action. Indeed, it is difficult to say how the fundamental alteration of the pleading proceedings could be continued. Such alteration will fall beyond the scope of liberal interpretation of order 6, rule 17.

                                    On the basis of above observations this Commission comes to the conclusion that with the death of the original                             complainant (now deceased) Krishna Kumar Vijaya right to sue has extinguished and his legal heirs cannot claim right, title                       and interest in respect of the claim on his person under Order XXII, Rule 3 r/w Section 151 of the Civil Procedure Code,                          1908 and hence the prayer of the petition No.182/17 is rejected and the case is dropped accordingly.