Code of Civil Procedure, 1908 : Order 22 – Abatementof appeal – Nature and extent of the abatement – Effect of abatement of the appeal against each of the respondents in case of multiple respondents – Suit filed by two co-owners-plaintiffs and rest of the co-owners joined as defendants as proper parties, for declaration and permanent injunction and challenging the acquisition proceedings under the Land Acquisition Act – Trial court decreed the suit holding that the Notifications ceased to exist, and the defendants were restrained from dispossessing the plaintiffs and the other co-owners from the land notified for acquisition – Appeal by the appellant-DDA – Some of the respondents not served as some of them had died – Appeal dismissed by the High Court as having abated for failure to bring on record the legal representatives of some of the deceased respondents – Review petition there against also dismissed and refusal to recall the order passed by the High Court – On appeal, held: Appeal as a whole cannot be treated as abated merely for failure to substitute the legal representative of some of the co-shares/co-owners-respondents who died during pendency of the appeal – On facts, the entire estate was represented through original plaintiffs in which even the co-sharers/ co-owners were also joined as defendants as proper parties – While considering whether the suit/appeal has abated due to non-bringing the legal representatives of plaintiffs/defendants or not, the Court has to examine if the right to sue survives against the surviving respondents – Thereafter, the appellate court has to consider the question whether non-bringing the legal representatives of some of the defendants, the appeal could have proceeded against the surviving respondents – While passing the impugned order, the High Court neither considered the relevant provisions of CPC namely Order 22 Rule 1 to 11 nor held any enquiry – Order passed by the High Court dismissing the appeal as a whole as having abated is set aside. Allowing the appeals, the Court
HELD: 1.1 The nature and extent of the abatement in a given case and the decision to be taken thereon will depend upon the facts of each case and, therefore, no exhaustive statement can be made either way and that the decision will ultimately depend upon the fact whether the decree obtained was a joint decree or a separate one. This question cannot and should not also be tested merely on the format of the decree under challenge or it being one or the manner in which it was dealt with before or by the Court which passed it. [Para 9.1][1078-B-C]
1.2 As observed and held by this Court while considering whether the suit/appeal has abated due to non-bringing the legal representatives of plaintiffs/defendants or not, the Court has to examine if the right to sue survives against the surviving respondents. Thereafter the Appellate Court has to consider the question whether non-bringing the legal representatives of some of the defendants, the appeal could have proceeded against the surviving respondents. Therefore, the Appellate Court has to consider the effect of abatement of the appeal against each of the respondents in case of multiple respondents. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives; that if there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants (Order 22 Rule 2); that if where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Where within the time limited by law no application is made under sub-rule 1 of Order 22 Rule 4, the suit shall abate as against the deceased defendant; and the provision of Order 22 shall also apply to the appeal proceedings also.[Para 9.1][1078-C-G]
1.3 While considering whether the suit/appeal has abated due to non-bringing the legal representatives of plaintiffs/defendants or not, the Court has to examine if the right to sue survives against the surviving respondents. Thereafter the Appellate Court has to consider the question whether nonbringing the legal representatives of some of thedefendants, the appeal could have proceeded against the surviving respondents. Therefore, the Appellate Court has to consider the effect of abatement of the appeal against each of the respondents in case of multiple respondents.[Para 9.2][1078-H; 1079-A-B]
1.4 Applying the law laid down to the impugned judgment and order dated 09.07.2007 passed by the High Court, it appears that the High Court has mechanically and without holding any further enquiry which was required to be conducted, has simply dismissed the entire appeal as having abated due to non-bringing on record the legal representatives of some of the respondents – the original defendants who, as such, neither contested the suit nor filed the written statements. It is observed that as such the original plaintiffs instituted the suit being co-owners/ cosharers and for and on behalf of all the co-owners/co-sharers of the entire land sought to be acquired under the Land Acquisition Act. [Para 9.3][1079-C-D]
1.5 In the instant case, when the original plaintiffs – two co-owners instituted the suit with respect to the entire suit land jointly owned by the plaintiffs as well as defendants nos. 9 to 39 and when some of the defendants/respondents in appeal died, it can be said that estate is represented by others – more particularly the plaintiffs/heirs of the plaintiffs and it cannot be said that on not bringing the legal representatives of the some of the cosharers – defendants – respondents in appeal the appeal would abate as a whole. While passing the impugned order dated 09.07.2007, the High Court has neither considered the relevant provisions of CPC namely Order 22 Rule 1 to 11 nor held any enquiry which was required to be conducted. [Para 9.4, 9.5][1079G-H; 1080-A]
1.6 The suit was filed challenging the acquisition proceedings under the Land Acquisition Act, that too, with respect to the land in question. It was the specific case on behalf of the appellant and even the issue was framed by the trial court on the jurisdiction of the Civil Court to entertain the suit challenging the acquisition proceedings under the Land Acquisition Act. From the findings recorded by the learned Trial Court, it appears that though the learned Trial Court held the issue of jurisdiction in favour of the appellant herein, still thereafter it granted the relief and decreed the suit which was the subject matter before the High Court. Thus, according to the appellant DDA – the judgment and decree passed by the learned Trial Court was a nullity and wholly without jurisdiction. If that be so, then, another question which may be required to be considered is, when the original plaintiffs/legal heirs are on record, can it be said that the entire appeal has abated, if in the appeal it is held that the decree was a nullity and/or wholly without jurisdiction then the decree will be nullity for all purposes. The said aspect is also required to be determined. [Para 9.6][1080-B-E]
1.7 In any case what would have been the consequences of not bringing the legal representatives of some of the respondents/defendants who died during the pendency of the appeal and whether the right to sue survives against the original plaintiffs and/or surviving respondents/defendants was to be considered by the High Court, which the High Court failed to consider in the instant case. [Para 9.7][1080-E-F]
1.8 The impugned judgment and order passed by the High Court dismissing the appeal as a whole as having abated for not bringing the legal representatives of some of the respondents/original defendants who died during the pendency of the appeal is hereby set aside. The High Court to consider the Appeal now in accordance with law and on its own merits and in light of the observations made, more particularly, the High Court shall have to consider and hold an enquiry, whether, on the death of some of the respondents in the appeal (defendants in suit) the right to sue against the remaining respondents-original plaintiffs/the remaining original defendants would survive or not including the fact that the estate is being represented by surviving original plaintiffs/heirs of the original plaintiffs/surviving defendants having a bearing on the enquiry to be held. [Para 10][1080-G-H; 1081-A] Mata Prasad Mathur vs. Jawala Prasad Mathur (2013)
14 SCC 722; [2013] 1 SCR 1106; Kanhaiya Lal vs. Rameshwar, (1983) 2 SCC 260; Sadar Amarjit Singh Kalra vs. Pramod Gupta (2003) 3 SCC 272, [2002] 5 Suppl. SCR 350; State of Bihar vs. Dharender Kumar (1995) 4 SCC 229 : [1995] 3 SCR 857; Esha
Bhattacharjee vs. Managing Committee of Ragunathpur Nafar Academy and others (2013) 12 SCC 649 : [2013]
9 SCR 782; Hemareddi vs. Ramachandra (2019) 6 SCC
756 : [2019] 7 SCR 262; Sunkara Lakehminarassama vs. Sagi (2019) 11 SCC 787 : [2018] 14 SCR 222 – Referred to
State of Punjab vs. Nathu Ram AIR 1962 SC 89 : [1962] SCR 636; A. ViswanathaPilliai and others vs. The Special Tehsildar for Land Acquisition No. 4 and others (1991) 4 SCC 17 : [1991] 3 SCR 465; Venigalla
Koteswaramman vs. Malempati Suryamba (2021) 4 SCC
246 : 2021 (2) SCALE 170 – Relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.