Case Title: Delhi Development Authority V. Diwan Chand Anand
The Supreme Court stated that a single failure to replace the legal representation of certain respondents who passed away while the appeal was pending cannot be used to regard the appeal in totality as abated.
The court must determine if the right to litigate against the surviving respondents still exists before determining whether or not the action or appeal has ceased as a result of the absence of the plaintiffs' or defendants' legal counsel, the bench made clear.
The two plaintiffs in this lawsuit - Shri Diwan Chand Anand and Smt. Chanan Kanta Anand filed a lawsuit for a declaration and a permanent injunction before the Civil Court/learned Trial Court, claiming to be the co-owners of the subject property. The Land Purchase Act of 1894's acquisition procedures were being challenged in the lawsuit filed against Delhi Development Authority and other defendants. The suit was decided by the Trial Court. Due to the fact that "several respondents have died during the pendency of the appeal, but no actions have been made by the appellant to get their Legal Representatives on record," the DDA's appeal was denied.
DDA, the appellant, argued before the Apex Court that, in light of the provisions of Order 22 Rule 4(4) of the Code of Civil Procedure, the appeal as a whole cannot be treated as abated on the failure to substitute the legal representative of such defendants who did not even file a written statement and remained ex-parte as well. It was argued that since the deceased respondents and defendants did not provide written statements or remained ex-parte, they were not required parties for the determination of the appeal. Respondents-Plaintiffs argued that there would be contradictory decrees about the respondents (in the appeal) who have previously been served and whose LRs have been added to the record and regarding the deceased respondents whose legal representatives have not been added to the record. Furthermore, they claimed that because the land is jointly held, this will lead to contradictory rulings.
In order to weigh the competing arguments, the bench cited a recent decision in Venigalla Koteswaramman vs. Malempati Suryamba, and noted:
If the right to sue remains, the lawsuit will not stop because a plaintiff or defendant has passed away.
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 if there are multiple plaintiffs or defendants and any of them dies, and if the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone (Order 22 Rule 2).
The Court, upon an application made in this regard, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit in cases where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or where a sole defendant or sole surviving defendant dies and the right to sue survives. If no application is submitted in accordance with Order 22 Rule 4's subrule 1 within the legally prescribed time frame, the case will be dropped against the dead defendant.
Order 22's provisions will also be applicable to the appeals process.
The bench noticed:
"While considering whether the suit/appeal has abated due to nonbringing 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 of whether nonbringing 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."
In granting the appeal, the court noted that the High Court had simply dismissed the entire case as having abated because some of the respondents' legal counsel had not been brought on record. These respondents were some of the original defendants and, as such, had not opposed the lawsuit or submitted written statements.