DELHI DEVELOPMENT AUTHORITY versus DIWAN CHAND ANAND & ORS
[2022] 18 S.C.R. 1053, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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   [2022] 18 S.C.R. 1053
1053
DELHI DEVELOPMENT AUTHORITY
v.
DIWAN CHAND ANAND & ORS.
(Civil Appeal No. 2397-2398 of 2022)
JULY 11, 2022
[M. R. SHAH AND B.V. NAGARATHNA, JJ.]
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.
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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]
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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 non-
bringing 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/ 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. [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 co-
sharers – 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][1079-
G-H; 1080-A]
1.6 The suit was filed challenging the acquisition
proceedings under the Land Acquisition Act, that too, with respect
DELHI DEVELOPMENT AUTHORITY v. DIWAN CHAND
ANAND & ORS.
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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]
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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.
Case Law Reference
[2013] 1 SCR 1106
referred to
Para 4.3
[2002] 5 Suppl. SCR 350
referred to
Para 4.4
[1995] 3 SCR 857
referred to
Para 4.7
[2013] 9 SCR 782
referred to
Para 4.8
[2019] 7 SCR 262
referred to
Para 6
[2018] 14 SCR 222
referred to
Para 6
[1962] SCR 636
relied on
Para 6
[1991] 3 SCR 465
relied on
Para 4.3
CIVIL APPELLATE JURISDICTION : Civil Appeal No.2397
of 2022.
From the Judgment and Order dated 13.01.2012 of the High Court
of Delhi at New Delhi in Review Petition No.314 of 2008 in R.F.A.
No.280 of 2001.
With
Civil Appeal No.2398 of 2022.
DELHI DEVELOPMENT AUTHORITY v. DIWAN CHAND
ANAND & ORS.
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Sanjay Poddar, Sr. Adv., Vishnu B. Saharya, Vivek B. Saharya,
Viresh B. Saharya, Akshat Agarwal for M/s. Saharya & Co., Advs. for
the Appellant.
Shyam Divan, Sushil Dutt Salwan, Sunil Gupta, Sr. Advs., Pramod
Dayal, Sudipto Sircar, Sushil Dutt Salwan, Nikunj Dayal, Ms. Puja
Sharma, Karunakar Mahalik, Monaranjan Mishra, Gouranga Biswal, Ms.
Meera Mathur, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned order dated
09.07.2007 passed by the High Court of Delhi in RFA No.280 of 2001
and the subsequent order dated 13.01.2012 passed by the High Court in
R.P. No.314 of 2008 in the very same RFA No.280 of 2001, the original
appellant before the High Court – Delhi Development Authority (‘DDA’
for short) has preferred the present appeals.
2. The facts leading to the present appeals in a nutshell are as
under:
The two plaintiffs, namely, Shri Diwan Chand Anand and Smt.
Chanan Kanta Anand claiming to be the co-owners of the suit property
filed the suit before the Civil Court/learned Trial Court for declaration
and permanent injunction. The suit was filed challenging the acquisition
proceedings under the Land Acquisition Act, 1894 (hereinafter referred
to as ‘the Act’). In the plaint defendant nos. 8 to 39 were impleaded
alleging to be co-shares as proper parties to the suit. The original plaintiff
no.2, Smt. Chanan Kanta Anand, was the
wife of original defendant
no.8 – Shri Dharam Chand Anand. On the demise of the husband and
wife (original plaintiff no. 2 & defendant no. 8) their children were
substituted both as plaintiff nos. 2(i) to 2(x) and defendant nos. 8(i) to
8(x). The suit was contested by the original defendant nos. 1 to 5 and 7
including the appellant DDA. They filed the written statement
controverting the claim of the plaintiffs. The suit was resisted on the
ground that the Civil Court had no jurisdiction with respect to a challenge
to the acquisition proceedings under the Land Acquisition Act. Other
defendant nos. 8 to 39 did not file any written statement and they were
proceeded ex-parte vide order dated 22.03.1983 and 06.10.1983.
2.1 The learned Trial Court initially framed four issues as under:
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“Whether the notification dated 16.01.1969 under Section
6 of the Land Acquisition Act with respect to the land in dispute is
illegal due to non-satisfaction of the appropriate authority as to
the existences of the public purpose? OPP
2. Whether the defendants withdrew from the acquisition
proceedings? OPP
3. What is the effect of Letter dated 10.01.1967 and
February, 1968 filed as Annexure D and G to the Plaint? OPP.
4. Relief”
2.2 That thereafter one additional preliminary issue was framed
on 12.12.1995 as under:
“Whether Civil Court has jurisdiction to go into the validity
of the notification under Section 4 and 6 under Land Acquisition
Act?”
2.3 By judgment and decree dated 12.01.2000, the learned Trial
Court decreed the suit. It is the case on behalf of the appellant – DDA
that despite the learned Trial Court giving a finding that the Civil Court
had no jurisdiction to go into the question of validity and legality of the
notification under Section 4 of the Act, it decreed the suit and held that
the notifications in question ceased to exist although the notification under
Section 48 of the Act had not been issued. The contesting defendants
were restrained from dispossessing the plaintiffs and other co-owners
land so notified for acquisition.
2.4 Feeling aggrieved and dissatisfied by the learned Trial Court,
DDA preferred the appeal before the High Court being RFA No.280 of
2001. The original plaintiff no.1 was arrayed as Respondent No.38
whereas LRs
of plaintiff no.2 and defendant no.8 were arrayed as
Respondent no.39 (2 – 10), and other defendants 9-39 were arrayed as
Respondent nos. 7-37 in the appeal. The appeal was admitted for hearing.
The original plaintiff/respondent nos. 38 & 39 were represented by
counsel. That some of the respondents (original defendants) out of
respondent nos. 7 to 37 (out of original defendant nos. 9 to 39) were not
served as some of them had died. By order dated 09.07.2007 the Division
Bench of the High Court dismissed the entire appeal as having abated
by observing as under:
DELHI DEVELOPMENT AUTHORITY v. DIWAN CHAND
ANAND & ORS. [M. R. SHAH, J.]
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“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.
This appeal accordingly stands abated.”
2.5 That the appellant – DDA filed Review Petition No.314 of
2008 seeking review of the order dated 09.07.2007 dismissing the appeal
as having abated. The High Court issued notice on 03.09.2008 which
remained unserved till the decision in the impugned order dated
13.01.2012. In the meantime, the original plaintiff no.1 Shri Diwan Chand
Anand was reported to have expired on 16.11.2010 and after ascertaining
about his legal representatives, application for substitution, being CM
No.22449 of 2011 was filed on 08.11.2012, which also remained pending.
By the impugned order dated 13.01.2012 the High Court has dismissed
the review application and has refused to recall the order dated 09.07.2007
dismissing the appeal as having abated. The original order passed by the
High Court dated 09.07.2007 dismissing the main appeal as having abated
and the subsequent order dated 13.01.2012 dismissing the review
application and refusing to recall the order dated 09.07.2007 are the
subject matter of the present appeals.
3. Shri Sanjay Poddar, learned Senior Advocate has appeared on
behalf of the appellant – DDA and Shri Shyam Divan, learned Senior
Advocate has appeared on behalf of the contesting respondent nos.33
and Shri Sunil Gupta, learned
Senior Advocate has appeared on behalf
of respondent nos. 3 to 40.
4. Shri Poddar, learned Senior Advocate appearing on behalf of
the appellant – DDA has vehemently submitted that the High Court has
dismissed the appeal as abated solely on the ground of failure on the part
of the appellant to bring on record the legal representatives of certain
respondents without going into the question as to whether the presence
of such persons was necessary and also without deciding the application
being CM No.22449 of 2011 (for substitution of legal representatives of
original plaintiff - Shri Diwan Chand Anand).
4.1 It is submitted that as a matter of fact the appeal has not been
dismissed on the ground of non-substitution of plaintiffs, who are
necessary parties. It is 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
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ex-parte, in view of the provisions of Order 22 Rule 4(4) of the Code of
Civil Procedure (for short ‘CPC’).
4.2 It is further urged that the High Court has dismissed the appeal
on hyper technical ground without examining the core issue, as to, whether,
the Appeal can be heard in the absence of such respondents/defendants
or not.
4.3 It is also submitted that even during the course of the hearing
of the SLPs, the contesting respondents have argued that said two
plaintiffs filed the suit on behalf of other co-owners/defendants and they
were prosecuting the suit on their behalf though these defendants remained
ex-parte and thus the learned Trial Court rightly passed the decree in
their favour. Reliance was placed on behalf of the appellants upon the
decision of this Court in the case of A. Viswanatha Pilliai and others
vs. The Special Tehsildar for Land Acquisition No.4 and others,
(1991) 4 SCC 17 in support of the submission that one co-owner can
prefer and prosecute the legal remedies for and on behalf of other co-
owners. It is submitted that applying the same analogy, the same co-
owner can also defend and represent the entire estate of other co-owner.
That if the entire estate is represented by the plaintiffs in the suit, then
they are deemed to have represented the same in the appeal. It is
submitted that the respondents/defendants who died did not file written
statement and remained ex-parte and therefore they were not necessary
parties for
adjudication of the appeal. Reliance is placed upon the decision
of this Court in the case of Mata Prasad Mathur vs. Jawala Prasad
Mathur, (2013) 14 SCC 722 and Kanhiya Lal vs. Rameshwar,
(1983) 2 SCC 260 (para 6).
4.4 It is further submitted that it is a well settled law that whether
the appeal abets as a whole has to depend upon facts of each case and
no straight formula is applicable since each case has its own peculiarities.
It is submitted that the Hon’ble High Court has failed to examine this
important and vital aspect which was required to be considered as
observed and held by the Constitution Bench Judgment of this Hon’ble
Court in the case of Sardar Amarjit Singh Kalra vs. Pramod Gupta,
(2003) 3 SCC 272 (para 26).
4.5 It is urged that in the aforesaid Constitution Bench Judgment
this Hon’ble Court has further held that the provisions of Order 22 Rule
4 CPC are required to be applied liberally with the object of protecting
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ANAND & ORS. [M. R. SHAH, J.]
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the rights of the parties and not to destroy the same. It is contended that
when the land is sought to be acquired and meant for a public purpose as
in the instant case interest of justice warrants that the appeal be heard
on merits in a time bound manner and may not be dismissed as abated.
4.6 Now so far as on the issue of abatement of present SLPs/
appeals on the alleged ground of non-impleadment of the LRs of Jagdish
Anand in the present SLPs/appeals who was one of the legal heirs of
original plaintiff no.2 and defendant no.8, it is submitted that Jagdish
Anand was one of the legal representatives of original plaintiff no.2 and
defendant no.8, out of the 10. That the other legal representatives are
already on record and therefore as the estate is represented by the other
legal representatives the present appeals can proceed in the presence of
the other legal representatives who are already on record as all of them
represent the estate of their father and mother.
4.7 So far as the submission on behalf of the contesting respondents
that on the issue of finality of judgment/decree on account of non-
substitution of legal representatives and/or there may be conflicting or
inconsistent decrees is concerned, it is submitted that as such the judgment
and decree passed by the learned Trial Court is a nullity being without
jurisdiction as this Hon’ble Court in the case of State of Bihar vs.
Dharender Kumar, (1995) 4 SCC
229 has held that the Civil Court
has no jurisdiction to entertain a civil suit in respect of the Land Acquisition
Proceedings/Notifications and cannot pass an injunction order to restrain
the government from taking possession. It is submitted that the decree
being a nullity the validity of such a decree can be questioned whenever
and wherever it is sought to be relied upon, even at the stage of execution
and even at the collateral stage of proceedings. It is submitted that the
defect of jurisdiction as to the subject matter of the suit land, strikes at
the root of the matter and such a defect cannot be cured even by consent
of the parties.
4.8 Now in so far as the submission on behalf of the contesting
respondents, that there is a huge delay in challenging the original order
dated 09.07.2007 passed in the First Appeal, it is submitted that the
appellant was prosecuting the Review Application which was filed in
the year 2008 which remained pending till 13.01.2012. That the delay in
preferring the review was condoned by the High Court. Therefore, the
appellant is entitled to seek exclusion of the period during the pendency
of the review petition and the same has been challenged in the present
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proceeding. It is submitted that the submission of the respondents in this
regard is liable to be rejected. This is because as observed and held by
this Court in the case of Esha Bhattacharjee vs. Managing
Committee of Ragunathpur Nafar Academy and others, (2013)
12 SCC 649 as well as in the recent decision in the case of Radha
Gajapathi Raju & Ors. vs. P. Maduri Gajapathi Raju & Ors. In
Civil Appeal No.6974-6975/2021 arising out of SLP (C) No.3373-
3374 of 2020 decided on 22.11.2021 pendency of the proceedings in
another Court can be said to be a sufficient ground for condonation of
delay.
Making above submissions and relying upon the above decisions,
it is prayed to allow the present appeals, set aside the orders passed by
the High Court dismissing the appeal as a whole as having abated due to
non-bringing the legal representatives of some of the respondents –
original defendants on record and to direct to decide the main appeal on
merits.
5. While opposing the present appeals, learned Senior Advocates
appearing on behalf of the contesting respondents, have, firstly, submitted
that as such there is a huge delay of 1811 days in filing Civil Appeal
No.2398 of 2022 against the main order dated 09.07.2007 with no plausible
justification and explanation. As a matter of fact, even the review petition
before the High Court was barred by limitation by 378 days.
5.1 It is further submitted by Learned Senior Advocates on behalf
of the Contesting Respondents that
in order to appreciate the controversy
before the learned Trial Court, few facts are required to be considered
which are as under:
“1. Plaintiffs 1 & 2, Diwan Chand Anand and Smt. Chanan Kanta
Anand, along with Sh. Dharam Chand Anand, Sh. Gian Chand
etc. were migrants from Lahore, Pakistan. The said plaintiffs along
with Sh. Dharam Chand Anand & others, in and around 1947-48,
purchased the disputed land, situated in Village Kharera, Tehsil
Mehrauli, bearing Khasra no.393, 394 & 395, admeasuring 30
bighas 6 biswas of land, along with super structure, from one Sh.
Mohd Ishaq. Sh. Dharam Chand Anand re-started his business of
body building on Trucks by constructing a factory on the said
parcels of land in the name of Anand Automobiles and supplied
bus bodies to the Military.
DELHI DEVELOPMENT AUTHORITY v. DIWAN CHAND
ANAND & ORS. [M. R. SHAH, J.]
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2. Since Mohd Ishaq migrated to Pakistan, the properties were
claimed by Custodian of Evacuee Properties. Representation was
made by the Plaintiffs & others to de-notify the same as Evacuee
Property. The same was duly considered and on 5th December
1953, the Custodian of Evacuee Properties confirmed the sale of
the said land with the super-structure, in favour of Plaintiffs &
other co-sharers. Sale Certificate was filed with the plaint. The
said land is situated within “Lal Dora”.
3. Subsequently, two Deeds of Conveyance with respect to 30
bighas 6 biswas of land, were executed by the President of India,
in the year 1962, in favour of the said Plaintiffs along with Sh.
Dharam Chand Anand, Sh. Gian Chand & other co-sharers. The
deeds neither specified the shares of he said six persons in the
parcels of land nor allocated or demarcated any portions of the
land between them.
4. In the year 1964, Notification under Section 4 of the Land
Acquisition Act, 1894 was issued in respect to number of parcels
of land including the aforesaid land.
5. On 1st May, 1964, the co-sharers filed objections against the
notification and nothing was heard for almost 5 years. On 19th
September, 1966, one of the co-sharer of the said property, made
representation against the proposed acquisitions to GoI.
6. On 23th December, 1966, the Central Govt wrote to the Lt.
Governor of Delhi to release the land comprised in Khasra nos.
393, 394 & 395,
covered by notification dated 21st March, 1964
7. Release Policy: On 7th January, 1967, Central Govt. made a
policy decision that lands which were isolated and situated amidst
built up areas and not required for public purposes were to be
released from acquisition. On 10th January, 1967, the Central Govt.
wrote to one of the co-owners, viz Shiv Raj Bahadur that Delhi
Administration has been directed to de-notify the land in dispute.
8. Thereafter, on 6th February, 1967, the Lt. Governor of Delhi
wrote to Central Govt. confirming necessary draft to de-notify
the land to ensure directions.
9. Again on 10th October 1967, one of the co-sharer made another
representation requesting for release of land.
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10. On 9th February 1968, the GoI wrote to Delhi Administration
that decision in letter dated 23.12.1966 stands and directed to de-
notify the parcels of land, which are subject matter of the SLPs.
11. However, on 16th January, 1969, Notification under Section 6
of the Land Acquisition Act was issued with respect to the land
aforesaid.
12. Two out of the six persons, in whose favour the Deeds of
Conveyance were executed, viz Dewan Chand Anand & Chanan
Kanta Anand w/o Dharam Chand Anand, filed a suit in the High
Court of Delhi, in the year 1974, seeking declaration that the
Notification dated 21.03.1964 issued under Section 4 of the Land
Acquisition Act stands withdrawn and or cancelled/waived and
that the Section 6 Notification is mala-fide, null and void, inoperative
in law and without and or in excess of jurisdiction and acquisition.
It was inter alia the plea of the plaintiffs in the suit, that the Central
Government, upon being approached by some of the owners of
the land, who were impleaded as defendants, had by a
communication to the then Delhi Administration stated that the
subject land was not required for the stated purpose and thus the
Notification under Section 6 was bad and without application of
mind.
13. The suit was instituted by 2 plaintiffs i.e. 2 of the co-owenrs.
However, out of the remaining 4 persons, in whose favour
conveyance deeds were executed, 3 had already died and
accordingly in the said suit, Dharam Chand Anand, the co-owner
and the legal heirs of the remaining 3 co-owners had to be and
were also impleaded as defendants, as being proper parties, besides
the Land Acquisition Authorities and DDA.”
5.2 It is submitted that the other owners of the land impleaded as
defendants, did not contest the suit, as the suit was in mutual interest. A
preliminary issue, namely, whether a civil suit impugning the notifications
under Sections 4 & 6 of the Act is maintainable was decided against the
plaintiffs. However, ultimately, the suit was decreed vide judgment and
decree dated 12.01.2000 by which a decree of declaration was passed
holding that the notifications under Sections 4 & 6 of the Act had ceased
to exist even before filing of the suit and the suit lands stood released
from the ambit and scope of the notifications. The learned Trial Court
also passed a decree of permanent injunction restraining the official
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defendants from dispossessing the plaintiffs and other co-sharers from
the suit property. It is submitted that thereafter in an appeal preferred by
DDA alone, a number of opportunities were given to bring the legal
representatives (LRs) of some of the respondents on record. But the
DDA failed to bring on record the LRs of many of the respondents who
died. It is submitted that, at one point of time, the suit was dismissed for
non-prosecution which was later restored. Several of the five respondents
i.e. the original purchasers of the lands and their heirs died. Even the
plaintiff – original plaintiff no.1 – respondent died on 16.11.2010. Though
opportunities were given for substitution of LRs. They were not
substituted. It is submitted that in these circumstances, the High Court
vide final order dated 09.07.2007 dismissed the appeal as abated. It is
submitted that owing to the original plaintiff no.1 – respondent dying and
also a number of other private respondents dying, the High Court in the
said order, appears to have not given their details. It is submitted that
however, it is not in dispute that a large number of private respondents
did die during the pendency of the appeal and the LRs were not brought
on record despite more than thirty opportunities being given to the DDA.
5.3 Now so far as the main issue on merits, that is, whether on the
non-substitution of legal representatives of some of the respondents -
owners of the land and/or whether on demise of the some of the
respondents during the pendency of the first appeal and the appellant
therein not bringing the LRs on record despite repeated opportunities,
whether the entire appeal stood abated or only in so far as the particular
deceased respondents, it is vehemently submitted by the learned Senior
Advocate for the contesting respondents that there would be conflicting
decrees qua the respondents who are already served and whose LRs
are brought on record and qua the deceased respondents whose legal
representatives are not brought on record. It is submitted by the learned
Senior Advocate that decree dated 12.01.2000 will be in favour of the
legal representatives of all the deceased respondents and if the appeal
succeeds in High Court, there will be conflicting decrees since the
property is jointly owned and the decree is inseparable or inseverable as
the property remains undivided with each party having right, title and
interest in the entire property.
5.4 It is submitted that factually there were two deeds of
conveyance in respect of the entire land in favour of six owners, without
demarcating their respective shares. Thus, in law each of the six owners
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or their heirs were the owners of the entire land having right, title and
interest in every part and parcel of land along with others and it cannot
be said that the said owners were exclusive owners of any portion of the
suit lands. It is submitted that in the case of K.Vishwanathan Pillai
versus Special Tehsildar for Land Acquisition No.IV, (1991) 4
SCC 17, it has been held that one of the co-owners can file a suit and
recover the property against the stranger and the decree would enure to
the benefit of all the co-owners. It is submitted that no co-owner has
right, title and interest in any of the item or portion of the property but
has a right, title and interest in every part and parcel of the joint property.
5.5 It is submitted that in the present case the learned Trial Court
vide judgment and decree had decreed that firstly, the notifications had
ceased to exist even before filing of the suit and therefore, the suit land
stood released from the scope of the said notifications. Secondly, the
permanent injunction was granted in favour of the plaintiffs and private
respondents (co-sharers) and against the land acquisition authorities as
well as the DDA, where the DDA was restrained from dispossessing
them. It is submitted that considering the aforesaid facts of the case, in
the absence of legal representatives of the deceased respondents, the
decree in respect of the suit property would become final vis-à-vis the
said persons. But in the present
proceedings in respect of the self-same
suit property are allowed to continue as against the other respondents,
the enforcement of the decree consequent to the possible success of the
proceedings would lead to conflict of decrees not permissible in law.
The relief of permanent injunction in favour of the deceased respondents
would continue to be in force, whereas it would not be in force as against
the respondents. This also will result in passing of two conflicting decrees
which shall be incapable of enforcement.
5.6 It is submitted that the present is the case of “joint and indivisible
decree”/” joint and inseverable or inseparable decree”. Hence when
there is omission or lapse or failure to bring on record the LRs of one or
more deceased respondents on time, it would be fatal and would require
the appeal to be dismissed in toto and it would result in abatement of
entire proceedings. Otherwise, inconsistent or contradictory decrees
would result with respect to same subject matter vis-à-vis the others.
Making the above submissions it is vehemently submitted that the
High Court has rightly dismissed the entire appeal as having abated and
the same is not required to be interfered with by this Court.
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6. Making above submissions and relying upon the decisions of
this Court in the case of State of Punjab vs. Nathu Ram, AIR 1962
SC 89; Hemareddi vs. Ramachandra, (2019) 6 SCC 756; Sunkara
Lakehminarassama vs. Sagi, (2019) 11 SCC 787 and the recent
decision of this Court Venigalla Koteswaramman vs. Malempati
Suryamba, (2021) 4 SCC 246, it is prayed to dismiss the present appeals.
7. We have heard learned counsel for the respective parties at
length.
8. At the outset, it is required to be noted that by order dated
09.07.2007, the High Court dismissed the First Appeal preferred by the
appellant herein as having abated on the ground that with respect to
some of the original defendants – respondents in appeal who died, their
legal representatives were not brought on record. Thus, on non-bringing
the legal representatives of some of the respondents who died during
the pendency of the appeal on record, the High Court dismissed the
appeal as a whole as having abated. The said order dated 09.07.2007
reads as under:
“R.F.A. No.280/2001
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. This appeal accordingly stands abated.”
8.1 Thereafter the appellant preferred the review application in
the year 2008 which has been dismissed by the High Court by the impugned
order dated 13.01.2012. 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
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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.
8.2 Before we consider the order dated 09.07.2007 on merits the
relevant pleadings and the necessary averments in the plaint which would
have a direct bearing on the controversy in the present appeal are required
to be referred to. It is required to be noted and it is not in dispute that the
suit was filed by only two co-owners and rest of the co-owners/co-
sharers were joined as defendants as proper parties. According to the
original plaintiffs, the land in
question was owned jointly by the original
plaintiffs and the other co-sharers which can be culled out from the
following averments in the plaint:
“4. That by order dated 5th December, 1953, the Custodian of
Evacuee Properties confirmed the sale regarding the said land in
favour of the Plaintiffs and the other co-sharers on condition that
they will pay the amount of Rs. 65,399.00 to the Custodian of
Evacuee Properties. That amount of Rs. 65,339.00 was paid to
the Custodian by the Plaintiffs and other Co-sharers.
5. That on the 26th April, 1962, the Custodian of Evacuee
Properties issued Sale Certificates regarding the said land in favour
of the Plaintiff and the other co-sharers. A copy of the Sale
Certificate is attached herewith as Annexure “B”.
7. That after the purchase, the Plaintiffs and the other
cosharers began to reside on land bearing Khasra No. 395 and
some of the co-sharers made a number of improvements and
constructions from 1947-48 to 1963 in the land comprised in the
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said Khasra and some co-sharers also set up an Automobile
Factory for the manufacture of automobiles and ancillary parts
and body building for mechanically propelled vehicles, in the said
land.
11. That on 1st May, 1964, the co-sharers of this property
filed objections against the said Notification and thereafter for
almost 5 years, no hearing was fixed for the said objections and
no notice of any kind was received by any of the cosharers.
12. That on 19th September, 1966, Mrs. Shiv Raj Bahadur,
who is one of the co-sharers of this property, made a representation
against the proposed acquisition to the Government of India,
through the Hon’ble Minister Shri Mehar Chand Khanna of the
Ministry of Works & Housing. A copy of the representation made,
is attached herewith as Annexure “C”.
44. That the Plaintiffs and the other co-sharers have all
along been harassed for reasons unknown, for acquiring the said
property by the Local Administration in spite of two specific
directions and decisions of the Central Government to denotify
the said property.
(45) That the legal representatives of the co-sharers who
had died, were entitled to be heard and although it was brought to
the notice of the Land Acquisition Collector that there were legal
representatives of the deceased owners, but they were not given
any opportunity of being heard, and no notice was issued to them,
therefore, the entire proceedings are vitiated.
47. That
Defendants nos. 8 to 39 are co-sharers in the land
in dispute and have been impleaded as proper parties to the suit”
8.3 That the plaintiffs being co-owners/co-sharers of the entire
suit land in question prayed for the following reliefs:
“(a) It is declared that the-entire proceedings adopted under
Section SA of the Land Acquisition Act are malafide, illegal and
incomplete violation of the letter and spirit of. the Land Acquisition
Act and is contrary to the principles of natural justice, fair-play,
equity and good conscience.
(b) It is declared that the Notification no. F.19(93-A)/63-
L&H(ii) dated 21st March, 1964 issued under, Section 4 of the
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Land Acquisition Act stands withdrawn and/ or cancelled and
waived by your own conduct.
(c) It be declared that the Notification No. F.19(93-A)/63-
L&H dated 16th January, 1969 issued under Section 6 of the Land
Acquisition Act is malafide, illegal, null and void, ultra vires,
inoperative in Law and without jurisdiction and/ or in excess of
jurisdiction.
(d) A permanent injunction be issued against the Defendants
not to dispossess the Plaintiffs and the other co-sharers from the
property and land bearing Khasra no. 395, 394 and 708/393 of
Village Kharera.
(e) An ad interim ex-parte injunction in terms of the
proceedings prayer.
(f) The costs of the suit be allowed to the Plaintiff against
the Defendants.
(g) The Defendants be ordered to pay to the Plaintiffs the
cost of incidentals.
(h) The Court may pass such other and further orders as
may be just, proper and necessary under the circumstances of
the case.”
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/
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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) inwhich 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
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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 under
“1. No abatement by party’s 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.
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(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
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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
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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 court’s coming
to a decision which be in conflict with the decision between
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the appellant and the deceased respondent and therefore
which would lead to the court’s 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.”
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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
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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.
DELHI DEVELOPMENT AUTHORITY v. DIWAN CHAND
ANAND & ORS. [M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2022] 18 S.C.R.
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.
10. In view of the above discussion and for the reason stated
above both these appeals succeed. The impugned judgment and order
passed by the High Court dated 09.07.2007 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 hereinabove, 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
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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.
With these observations the present Appeals are Allowed
accordingly to the aforesaid extent. However, there shall be no order as
to costs.
Nidhi Jain and Amarendra Kumar
Appeals allowed.
(Assisted by : Ajay, LCRA)
DELHI DEVELOPMENT AUTHORITY v. DIWAN CHAND
ANAND & ORS. [M. R. SHAH, J.]