Case: Delhi Development Authority Vs. Diwan Chand Anand &amp; Ors

before or by the Court which passed it. Thus, as observed and held by the Court: (i) The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives; (ii) 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); (iii) 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; (iv) the provision of Order 22 shall also apply to the appeal proceedings also. 9.2 As observed and held by this Court in the aforesaid decisions 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. 9.3 Applying the law laid down by this Court in the aforesaid decisions 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 as observed hereinabove, 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. At the cost of repetition, it is observed that as such the original plaintiffs instituted the suit being co- owners/co-sharers 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. 9.4 As observed and held by this Court in the case of K. Vishwanathan Pillai (supra), the co-owner is as much an owner of the entire property as a sole owner of the property. No co-owner 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 co-owner can file a suit and recover the property against strangers and the decree would enure to all the co-owners. The aforesaid principle of law would be applicable in the appeal also. Thus, 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 co- sharers – defendants – respondents in appeal the appeal would abate as a whole. 9.5 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 as observed hereinabove. 9.6 One another important aspect which is also required to be noted is that 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 learned 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 aforesaid aspect is also required to be determined. 9.7 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]At this stage, it is required to be noted that there was a delay in preferring the Review Application which came to be condoned by the High Court. That subsequently the appellant herein – DDA – original appellant, preferred the present two appeals, one, challenging the original order dated 09.07.2007 dismissing the appeal as a whole as having abated and the second, challenging the order dismissing the review application. It is sought to be contended on or behalf of the contesting respondents that there is a huge delay in preferring the appeal challenging the order dated 09.07.2007 and therefore present Appeal may not be entertained. However, the appellant was bona fide prosecuting the review application. That after dismissal of the review application in which the appellant prayed to review and recall the order dated 09.07.2007, that the appellant has preferred two separate appeals, one, challenging the dismissal of the review application and another, challenging the original order dated 09.07.2007. Therefore, once the appellant was bona fide prosecuting the review application, it was justified in waiting for the outcome of the Review Application. If, without waiting for the outcome of the review application, the appellant would have preferred the appeal at that stage, the appellant would have been non- suited on the ground of the pendency of the review application and the appellant would have been told to wait till the outcome of the review application. Therefore, in the facts and circumstances of the case the time taken in prosecuting the review application is to be excluded and the appeal preferred challenging the order dated 09.07.2007 is to be considered on merits. Therefore, the objection on behalf of the contesting respondents not to consider the substantive appeal challenging the order dated 09.07.2007 on merits is hereby overruled and we may proceed to consider the order dated 09.07.2007 dismissing the appeal as a whole as having abated on merits.8.4 Thus, from the aforesaid it can be seen that the original plaintiffs – two co-owners/co-sharers of the entire land in question fought with respect to the entire land belonging to the plaintiffs and the co-owners jointly. It can be said that the original plaintiffs instituted the suit for themselves as well as for and/or on behalf of the other co-owners – co-sharers with respect to the entire land jointly owned by all of them. Thus, it can safely be held that the entire estate was represented through original plaintiffs in which even the co-sharers/co- owners were also joined as defendants as proper parties. Therefore, even when the learned Trial Court passed the judgment and decree, it passed the judgment and decree with respect to the entire land and even granted the permanent injunction to protect the ownership and protection of the plaintiffs as well as the other co-sharers over the suit land. In light of the above factual scenario the order passed by the High Court dated 09.07.2007 in dismissing the first appeal as a whole as having been abated on not taking step to bring on record the legal representatives of some of the original defendants/respondents in the appeal is required to be tested and/or considered in light of the settled legal principles.9. While considering the impugned order passed by the High Court dated 09.07.2007, dismissing the appeal as having abated, the law on abatement and on Order 22 CPC is required to be discussed. Order 22 CPC fell for consideration before this Court in the recent decision in the case of Venigalla Koteswaramman (supra) in which this Court considered in detail the earlier decisions of this Court in the case of Nathu Ram (supra) as well as the other decisions including the later decision in the case of Hemareddi (supra). The relevant discussion on Order 22 CPC in paragraphs 42 to 44.8 are extracted as under:42. The rules of procedure for dealing with death, marriage, and insolvency of parties in a civil litigation are essentially governed by the provisions contained in Order 22 of the Code.42.1. Though the provisions in Rule 1 to Rule 10- A of Order 22 primarily refer to the proceedings in a suit but, by virtue of Rule 11, the said provisions apply to the appeals too and, for the purpose of an appeal, the expressions plaintiff, defendant and suit could be read as appellant, respondent and appeal respectively.42.2. Rule 1 of Order 22 of the Code declares that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. When read for the purpose of appeal, this provision means that the death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives.42.3. Rule 2 of Order 22 of the Code ordains the procedure where one of the several plaintiffs or defendants dies and right to sue survives to the surviving plaintiff(s) alone, or against the surviving defendant(s) alone. The same procedure applies in appeal where one of the several appellants or respondents dies and right to sue survives to the surviving appellant(s) alone, or against the surviving respondent(s) alone. The procedure is that the Court is required to cause an entry to that effect to be made on record and the appeal is to proceed at the instance of the surviving appellant(s) or against the surviving respondent(s), as the case may be.42.4. However, by virtue of Rule 4 read with Rule 11 of Order 22 of the Code, in case of death of one of the several respondents, where right to sue does not survive against the surviving respondent or respondents as also in the case where the sole respondent dies and the right to sue survives, the contemplated procedure is that the legal representatives of the deceased respondent are to be substituted in his place; and if no application is made for such substitution within the time limited by law, the appeal abates as against the deceased respondent.42.5. Of course, the provisions have been made for dealing with the application for substitution filed belatedly but the same need not be elaborated in the present case because it remains an admitted fact that no application for substitution of legal representatives of Defendant 2 (who was Respondent 3 in AS No. 1887 of 1988) was made before the High Court.42.6. The relevant provisions contained in Rules 1, 2, sub-rules (1), (2) and (3) of Rule 4 and Rule 11 of Order 22 could be usefully reproduced as under1. No abatement by partys death, if right to sue survives.—The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.— Where 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.4. Procedure in case of death of one of several defendants or of sole defendant.—(1) 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.(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.11. Application of Order to appeals.—In the application of this Order to appeals, so far as may be, the word plaintiff shall be held to include an appellant, the word defendant a respondent, and the word suit an appeal.43. For determining if Order 22 Rule 2 could apply, we have to examine if right to sue survived against the surviving respondents. It is not the case that no legal heirs were available for Defendant 2. It is also not the case where the estate of the deceased Defendant 2 passed on to the remaining parties by survivorship or otherwise. Therefore, applicability of Order 22 Rule 2 CPC is clearly ruled out.44. Admittedly, steps were not taken for substitution of the legal representatives of Defendant 2, who was Respondent 3 in AS No. 1887 of 1988. Therefore, sub-rule (3) of Rule 4 of Order 22 of the Code directly came into operation and the said appeal filed by Defendants 16 to 18 abated against Defendant 2 (Respondent 3 therein). We may profitably recapitulate at this juncture that in fact, the other appeal filed by Defendants 4, 13 and 14 (AS No. 1433 of 1989) was specifically dismissed by the High Court as against the deceased Defendant 2 on 25-4-2006.44.1. Once it is found that the appeal filed by Defendants 16 to 18 abated as against Defendant 2 (Respondent 3), the question arises as to whether that appeal could have proceeded against the surviving respondents i.e. the plaintiff and Defendants 1 and 3 (who were Respondents 1, 2 and 4). For dealing with this question, we may usefully refer to the relevant principles, concerning the effect of abatement of appeal against one respondent in case of multiple respondents, as enunciated and explained by this Court.44.2. The relevant principles were stated and explained in depth by this Court in State of Punjab v. Nathu Ram [State of Punjab v. Nathu Ram, AIR 1962 SC 89 ]. In that case, the Punjab Government had acquired certain pieces of land belonging to two brothers jointly. Upon their refusal to accept the compensation offered, their joint claim was referred to arbitration and an award was passed in their favour that was challenged by the State Government in appeal before the High Court. During pendency of appeal, one of the brothers died but no application was filed within time to bring on record his legal representatives. The High Court dismissed [Province of East Punjab v. Labhu Ram, 1954 SCC OnLine P&H 132] the appeal while observing that it had abated against the deceased brother and consequently, abated against the surviving brother too. The order so passed by the High Court was questioned before this Court in appeal by certificate of fitness.44.3. While dismissing the appeal and affirming the views of the High Court, this Court in Nathu Ram case [State of Punjab v. Nathu Ram, AIR 1962 SC 89 ] enunciated the principles concerning the effect of abatement and explained as to why, in case of joint and indivisible decree, the appeal against the surviving respondent(s) cannot be proceeded with and has to be dismissed as a result of its abatement against the deceased respondent; the basic reason being that in the absence of the legal representatives of deceased respondent, the appellate court cannot determine between the appellant and the legal representatives anything which may affect the rights of the legal representatives. This Court pointed out that by abatement of appeal qua the deceased respondent, the decree between the appellant and the deceased respondent becomes final and the appellate court cannot, in any way modify that decree, directly or indirectly.44.4. The Court observed in that case, inter alia, as under: (Nathu Ram case [State of Punjab v. Nathu Ram, AIR 1962 SC 89 ] , AIR pp. 90-91, paras 4-6 & 8)4. It is not disputed that in view of Order 22 Rule 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co- respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22 Rule 4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.5. The same conclusion is to be drawn from the provisions of Order 1 Rule 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.6. The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the courts coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the courts passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court; and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.8. The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.9.1 After referring to the decision of this Court in the case of Nathu Ram (supra), in the case of Vennigalla Koteswaramma vs. Malampati Suryamba and Others, (2003) 3 SCC 272,  it is observed by this Court that 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. It is further observed that 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.Thus, as observed and held by the Court:(i) The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives;(ii) 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);(iii) 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;(iv) the provision of Order 22 shall also apply to the appeal proceedings also.9.2 As observed and held by this Court in the aforesaid decisions 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.9.3 Applying the law laid down by this Court in the aforesaid decisions 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 as observed hereinabove, 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. At the cost of repetition, it is observed that as such the original plaintiffs instituted the suit being co- owners/co-sharers 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.9.4 As observed and held by this Court in the case of K. Vishwanathan Pillai (supra), the co-owner is as much an owner of the entire property as a sole owner of the property. No co-owner 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 co-owner can file a suit and recover the property against strangers and the decree would enure to all the co-owners. The aforesaid principle of law would be applicable in the appeal also. Thus, 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 co- sharers – defendants – respondents in appeal the appeal would abate as a whole.9.5 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 as observed hereinabove.9.6 One another important aspect which is also required to be noted is that 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 learned 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 aforesaid aspect is also required to be determined.9.7 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.