Law Web: Whether suit got abated against all the plaintiffs when suit is abated against one of the plaintiff in the joint claim?

The main question for consideration is whether on the

non-substitution of legal representatives of some of the plaintiff

– owners of the land and/or whether on demise of the some of the

respondents during the pendency of the first appeal, the entire

appeal would stand abated or it will be so only in respect of the

particular deceased respondent. This question, in our considered

view, has been answered in favour of the plaintiff - appellants by

this Court in more than one decisions. A coordinate Bench of this

Court recently in Delhi Development Authority vs. Diwan Chand Anand

and Others, (2022) SCC Online SC 855, has held as under:

“36. 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 subrule

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. In our considered view also, where there are more than

one plaintiffs, the entire suit cannot be held to be abated on the

death of one of the plaintiffs.{Para 8}

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.7145 OF 2022

SIRAVARAPU APPA RAO & ORS. Vs DOKALA APPA RAO

Dated: OCTOBER 11, 2022.

1. Leave granted.

2. The instant appeal by way of special leave is directed against

judgment and order dated 16.03.2017 passed by the High Court of

Judicature at Hyderabad for the State of Telangana and the State of

Andhra Pradesh whereby the High Court dismissed the Second Appeal

filed by the appellants herein and held the judgment and decree of

the trial court stands nullified by reason of death of one of the

plaintiffs and that the suit stood abated.

3. The appellant Nos.1-4 before this Court are brothers whereas

appellant No.5 is their sister. The appellants along with one

Vemala Chanti jointly filed a suit for declaration of title and

recovery of possession against the respondent herein before the

learned Junior Civil Judge, Bhimavaram (hereinafter referred to as

`the Civil Court’) stating that the father of the respondent -

Yarakayya was in permissive possession of the subject schedule

property by way of a licence, and that after the death of the

licensor, the respondent herein continued to be in unauthorized

possession of the said schedule property.

4. It is an undisputed fact that during the pendency of the

suit, one of the sisters of the appellants, namely, Vemala Chanti

passed away on 23.04.2011 and her legal representatives were not

brought on record. Regardless thereto, the Civil Court proceeded to

decide the suit and decreed the same in favour of the appellants.

5. The respondent challenged the above-stated judgment and

decree by way of First Appeal before the III Additional District

Judge, Bhimavaram (hereinafter referred to as `the First Appellate

Court’). The First Appellate Court allowed the appeal solely on

the ground that one of the plaintiffs, namely, Vemla Chanti having

died on 23.04.2011 and as her legal representatives were not

brought on record, the suit qua her stood abated and since the

appellants and the deceased plaintiff jointly made a claim, the

decree obtained by the appellants is a nullity. To say it

differently, the First Appellate Court viewed that the suit got

abated not only against the deceased plaintiff, the said suit also

got abated as against the other plaintiff-appellants as the claim

was joint.

6. Aggrieved appellants filed a Second Appeal before the

High Court but their appeal was also dismissed on the same premise.

The High Court viewed that “Since her right in the property is

joint along with the appellants, the dismissal of the suit as

against her would result in the dismissal of the suit as against of

the appellants also. Otherwise there would be conflicting

judgments”.

7. We have heard learned counsel for the parties at a

considerable length and gone through the material placed on record.

8. The main question for consideration is whether on the