Order XXII Rule 2 CPC- Entire Suit Cannot Be Held To Be Abated On The Death Of One Of The Plaintiffs : Supreme Court

The Supreme Court observed that, where there are more than one plaintiffs, the entire suit cannot be held to be abated on the death of one of the plaintiffs.

In this case, the Trial Court decreed a suit for declaration of title and recovery of possession filed by the plaintiffs. The First Appellate Court allowed the appeal solely on the ground that one of the plaintiffs having died and as her legal representatives were not brought on record, the suit qua her stood abated and since it was a joint claim, the decree  is a nullity. The High Court also dismissed the second appeal on the same ground.

The issue raised in appeal before the Apex Court was whether on the non-substitution of legal representatives of some of the plaintiff – owners of the land and/or whether on demise of the some of the respondents during the pendency of the first appeal, the entire appeal would stand abated or it will be so only in respect of the particular deceased respondent.?

In this regard, the bench referred to following observations made in a recent judgment in Delhi Development Authority vs. Diwan Chand Anand 2022 LiveLaw (SC) 581:

1.  The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives;
2. 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); 
3. 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 subrule 1 of Order 22 Rule 4, the suit shall abate as against the deceased defendant; 
4. The provision of Order 22 shall also apply to the appeal proceedings also.

"In our considered view also, where there are more than one plaintiffs, the entire suit cannot be held to be abated on the death of one of the plaintiffs.", the bench of Justices Surya Kant and MM Sundresh observed while allowing the appeal.

Case details

Siravarapu Appa Rao vs Dokala Appa Rao | 2022 LiveLaw (SC) 845 | CA 7145 OF 2022 | 11 October 2022 | Justices Surya Kant and MM Sundresh

Counsel: For Petitioner(s) Mr. Sindoora VNL, Adv. Mr. Raavi Venkata Yogesh, Adv. Mr. Vishnu Shankar Jain, AOR ; For Respondent(s) Mr. Nishit Agrawal, AOR Ms. Kanishka Mittal, Adv.

Headnotes

Code of Civil Procedure, 1908 ; Order XXII Rule 2 - Where there are more than one plaintiffs, the entire suit cannot be held to be abated on the death of one of the plaintiffs - Referred to Delhi Development Authority vs. Diwan Chand Anand 2022 LiveLaw (SC) 581. (Para 8-9)

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