DELHI DEVELOPMENT AUTHORITY versus DIWAN CHAND ANAND & ORS

Citation: [2022] 18 S.C.R. 1053 · Decided: 11-07-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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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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SUPREME COURT REPORTS
[2022] 18 S.C.R.
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 

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