Sakharam Since Deceased Through L.Rs vs Kishanrao

2022 INSC 1312 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5067-5068 OF 2022 (Arising out of SLP(C)Nos.13573-74 of 2022 (D.No.15379 of 2021)

SAKHARAM SINCE DECEASED THROUGH L.RS & ANR. ... APPELLANT(S)

VERSUS

KISHANRAO ... RESPONDENT(S)

O R D E R

Leave granted.

2. These appeals arise out of the judgment and decree of

the High Court of Judicature at Bombay, Aurangabad Bench,

dismissing a Second Appeal as having abated due to the

death of one of the respondents and dismissing an

application to set aside abatement.

3. Heard learned counsel for both sides. 2

4. Sans unnecessary details, the facts leading to the

aforesaid appeals can be summarized as follows:-

(i) Two sons of one Tukaram Rodge filed a civil suit for declaration and possession against the two sons of one Gangaram Rodge impleading the mother of the plaintiffs as a proforma Defendant No.3.

(ii) The suit was dismissed by a judgment and decree dated 30.06.1982.

(iii) The unsuccessful plaintiffs filed a Regular First Appeal in C.A.No.134 of 1982. The First Appellate Court decreed the suit as prayed for, by a judgment and decree dated 30.12.1992.

(iv) The Defendant Nos. 1 and 2 namely sons of Gangaram filed a Second Appeal in S.A. No. 67 of 1993, on the file of the High Court.

(v) The original plaintiffs, namely, the two sons of Tukaram, were Respondent Nos. 1 and 2 in the Second Appeal and the 3rd Defendant, who was only a proforma defendant, was Respondent No.3 in the Second Appeal.

(vi) During the pendency of the second appeal, the proforma Defendant No.3, who was Respondent No.3, died on 30.03.1994. Since, her sons were already parties as Respondent Nos. 1 and 2 in the Second Appeal, the appeal did not abate on account

of the death of the proforma Respondent No.3.

However, one of the two successful plaintiffs, who 3

was the second Respondent in the Second Appeal, died on 02.02.1996.

(vii) In view of the above, the High Court thought the appeal had abated on account of the failure of the appellant to bring on record the legal representatives of the deceased second Plaintiff who was Respondent No.2 in the Second Appeal.

(viii) The application filed for setting aside abatement was also dismissed by the High Court. This is why, the Defendant Nos. 1 and 2, who were the appellants in the second Appeal, have come up with the above Civil Appeals.

5. Fundamentally, the High Court fell into an error in

thinking that the Second Appeal abated upon the death of

Respondent No.2 (second Plaintiff).

6. When two plaintiffs joined together and secured a

decree of declaration and possession of an immovable

property, the death of one of the decree holders will not

make the second appeal abate. As against the surviving

successful plaintiff, the cause of action

survived. Abatement occurs only when the cause of action

does not survive upon or against the surviving party.

7. Order XXII Rule 2 of the Civil Procedure Code reads

as follows:-

4

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.”

8. The above Rule makes it clear that where there are

more defendants than one and any of them dies and where

the right to sue survives against the surviving

defendant, the suit shall proceed against the surviving

defendant. Order XXII Rule 11 states that in the

application of Order XXII to appeals, the word

“plaintiff” shall be held to include an appellant, the

word “defendant” a respondent, and the word “suit” an

appeal.

9. Therefore, if the word “defendant” appearing in Order

XXII Rule 2 is replaced by the word “respondent”, it will

be clear that the second appeal did not abate and the

right to sue survives against the surviving respondent. 5

10. In view of the above, the dismissal of the Second

Appeal by the High Court on the ground that the appeal

stood abated, without going into the merits of the case

is not in accordance with law. Consequently the dismissal

of the application was also contrary to law.

11. Therefore, the appeals are allowed. The judgment and

decree of the High Court dismissing the Second Appeal as

well as the order dismissing the application to set aside

abatement are set aside and the Second Appeal is remanded

back to the High Court for a fresh consideration on

merits.

12. We request the High Court to hear and decide the

appeals as early as possible, preferably within six

months from the date of communication of this order.

………………………………………...J. (Indira Banerjee)

………………………………….....J. (V. Ramasubramanian)

New Delhi;

August 03, 2022 6

ITEM NO.11 COURT NO.6 SECTION IX

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 15379/2021

(Arising out of impugned final judgment and order dated 08-04-2019 in SA No. 67/1993 08-06-2021 in CA No. 6740/2019 passed by the High Court Of Judicature At Bombay At Aurangabad)

SAKHARAM SINCE DECEASED THROUGH L.RS. & ANR. Petitioner(s)

VERSUS

KISHANRAO Respondent(s)

(IA No. 84320/2021 - CONDONATION OF DELAY IN FILING IA No.84318/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)

Date : 03-08-2022 These matters were called on for hearing today.

CORAM : HON'BLE MS. JUSTICE INDIRA BANERJEE HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN

For Petitioner(s) Mr. Shashibhushan P. Adgaonkar, AOR Mr. Omkar J. Deshpande, Adv.

For Respondent(s) Ms. Rohini Wagh, Adv.

Mr. Ilin Saraswat, adv.

Mr. Aalekh Wagh, Adv.

Mr. Devendra Kumar Shukla, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeals are allowed in terms of the signed

reportable order. The judgment and decree of the High

Court dismissing the Second Appeal as well as the order

dismissing the application to set aside abatement are set 7

aside and the Second Appeal is remanded back to the High

Court for a fresh consideration on merits.

12. We request the High Court to hear and decide the

appeals as early as possible, preferably within six

months from the date of communication of this order.

(GULSHAN KUMAR ARORA) (MATHEW ABRAHAM) AR-CUM-PS COURT MASTER (NSH)

(Signed reportable order is placed on the file)