Order XXII Rule 4 CPC - Appeal As A Whole Does Not Abate Merely Because LRs Of Some Deceased Respondents Were Not Brought On Record: Supreme Court

The Supreme Court observed that an appeal as a whole cannot be treated as abated merely for failure to substitute the legal representative of some of the respondents who died during pendency of the appeal.

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, the bench comprising Justices MR Shah and BV Nagarathna observed.

In this case, the two plaintiffs, namely, Shri Diwan Chand Anand and Smt. Chanan Kanta Anand claiming to be the co­owners of the suit property filed the suit before the Civil Court/learned Trial Court for declaration and permanent injunction. The suit was filed against Delhi Development Authority and other defendants challenging the acquisition proceedings under the Land Acquisition Act, 1894. The Trial Court decreed the suit. The DDA filed appeal and this was dismissed on the ground that 'many respondents have died during the pendency of the appeal but no steps have been taken by the appellant to bring their Legal Representatives on record.' 

Before the Apex Court, DDA - appellant contended that the appeal as a whole cannot be treated as abated on failure to substitute the legal representative of such defendants who even did not file written statement and even remained exparte, in view of the provisions of Order 22 Rule 4(4) of the Code of Civil Procedure. It was submitted that the respondents/defendants who died did not file written statement remained ex­parte and therefore they were not necessary parties for adjudication of the appeal. On the other hand, respondents- plaintiffs contended that there would be conflicting decrees qua the respondents (in appeal) who are already served and whose LRs are brought on record and qua the deceased respondents whose legal representatives are not brought on record. They also submitted this will result in conflicting decrees since the property is jointly owned.

The bench, to consider the rival contentions, referred to recent judgment in Venigalla Koteswaramman vs. Malempati Suryamba, (2021) 4 SCC 246 and noted:

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

The bench observed:

"While considering whether the suit/appeal has abated due to non­bringing 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 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."

Allowing the appeal, the court observed 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 non­bringing 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.

Case details

Delhi Development Authority vs Diwan Chand Anand | 2022 LiveLaw (SC) 581 | CA 2397 of 2022 | 11 July 2022

Coram: Justices MR Shah and BV Nagarathna

Headnotes

Code of Civil Procedure, 1908 ; Order XXII Rule 1-4 - While considering whether the suit/appeal has abated due to non­bringing the legal representatives of plaintiffs/defendants or not, the Court has to examine if the right to sue survives against the surviving respondents - Court has to consider the effect of abatement of the appeal against each of the respondents in case of multiple respondents - Referred to Venigalla Koteswaramman vs. Malempati Suryamba, (2021) 4 SCC 246 (Para 9- 9.2)

Property Law- Co-ownership - The co­owner is as much an owner of the entire property as a sole owner of the property. No co­owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. It is observed that, therefore, one co­owner can file a suit and recover the property against strangers and the decree would enure to all the co­owners. (Para 9.4)

Click here to Read/Download Judgment