Summary
Two of six co-owners of 30 bighas in Delhi sued in 1974 to declare notifications under Sections 4 and 6 of the Land Acquisition Act, 1894 void, impleading the other co-sharers as proper parties who never contested; the trial court, despite finding the civil court lacked jurisdiction, decreed the suit in 2000 and restrained the DDA from dispossessing the plaintiffs and co-sharers. In the DDA's first appeal several non-contesting co-sharer respondents died and their heirs were not substituted; the Delhi High Court in 2007 dismissed the whole appeal as abated in a one-line order and in 2012 rejected review. The Supreme Court set aside the abatement. Under Order XXII Rules 1 to 11 CPC an appeal abates only against the deceased respondent;
Issues
- Whether a first appeal abates as a whole when the legal representatives of some deceased respondents, who were co-sharer defendants impleaded as proper parties and had never contested the suit, are not brought on record, while the plaintiffs or their heirs remain on record.
- What enquiry an appellate court must undertake under Order XXII CPC before holding that abatement against some respondents prevents the appeal from proceeding against the others.
- Whether time spent bona fide prosecuting a review petition is to be excluded in considering the delay in appealing against the original order.
Provisions considered
- Order XXII Rules 1, 2, 4 and 11, Code of Civil Procedure, 1908Death does not abate a suit or appeal if the right to sue survives; where it survives against surviving respondents alone the appeal proceeds against them, and only where it does not survive, and no substitution is made in time, does the appeal abate as against the deceased respondent. Whether the appeal can then proceed against the others depends on the nature of the decree and the Nathu Ram tests (Venigalla Koteswaramma); the High Court applied none of this. (¶¶ 9, 9.1, 9.2, 9.3, 9.5)
- Sections 4, 6 and 48, Land Acquisition Act, 1894The suit challenged the Section 4 and 6 notifications and the trial court held they had ceased to exist though no Section 48 withdrawal was issued; the DDA's plea that the civil court had no jurisdiction over acquisition proceedings (State of Bihar v. Dharmendra Kumar) and that the decree was a nullity is a further question bearing on whether the appeal could abate. (¶¶ 2.3, 4.7, 9.6)
- Exclusion of time spent in bona fide prosecution of a review petition, Limitation Act, 1963The DDA bona fide prosecuted its review from 2008 to 2012 and would otherwise have been told to await its outcome; the time was excluded and the appeal against the 2007 order considered on merits (Esha Bhattacharjee, Radha Gajapathi Raju). (¶¶ 4.8, 8.1)
Held
- The plaintiffs, two co-owners, sued for the entire land jointly owned with the defendant co-sharers and sought injunction protecting the plaintiffs and all co-sharers; the suit was effectively for and on behalf of all co-owners and the entire estate was represented through them. A co-owner is as much an owner of the whole as a sole owner, and one co-owner may sue for the whole and the decree enures to all (A. Viswanatha Pillai); the same principle applies in appeal, so the death of some non-contesting co-sharer respondents did not abate the appeal as a whole when the plaintiffs or their heirs represented the estate. (¶¶ 8.2, 8.3, 8.4, 9.4)
- Order XXII Rule 4 provides only for abatement against the deceased respondent; whether the appeal can proceed against the rest depends on whether the court can deal with the controversy between the parties before it, tested by whether success would produce a decree conflicting with the one that became final, whether the action could have been brought against the surviving respondents alone, and whether the decree would be ineffective (Nathu Ram). The nature and extent of abatement depends on the facts of each case and not merely on the format of the decree (Venigalla Koteswaramma). (¶¶ 9, 9.1, 9.2)
- The High Court mechanically dismissed the entire appeal by a one-line order without considering Order XXII or holding the enquiry required, and without deciding the pending substitution application for the deceased plaintiff. On remand it must also consider the DDA's contention that the decree was a nullity for want of jurisdiction, in which case the question of abatement would stand on a different footing. (¶¶ 9.3, 9.5, 9.6, 9.7, 10)
Result
Appeals allowed; the Delhi High Court's order of 09.07.2007 dismissing RFA No. 280 of 2001 as abated, and the order of 13.01.2012 rejecting review, set aside; the High Court to decide the appeal on merits after enquiring whether the right to sue survives against the remaining respondents, having regard to the estate being represented by the surviving plaintiffs, their heirs and surviving defendants. No order as to costs.