What is abatement of proceeding as per CPC?

 Abatement of proceedings in Indian law refers to the automatic termination or suspension of a legal proceeding due to specific events affecting the parties involved. It is governed primarily by Order XXII of the Code of Civil Procedure, 1908.

Definition and Scope

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Supreme Court: Whether the court should abate a proceeding for death of some of parties where parties having separate rights have jointly filed any proceeding?

34. In the light of the above discussion, we hold:-

(1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of the one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them.

(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees.

(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one.

(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other.

 IN THE SUPREME COURT OF INDIA

Appeal (civil) 1027-1028 of 1992,

Decided On: 17.12.2002

S. Amarjit Singh Kalra (dead) by Lrs. and Ors. Vs. Pramod Gupta (dead) by Lrs. and Ors.

Hon'ble Judges/Coram:

G.B. Pattanaik, C.J., M.B. Shah, Doraiswamy Raju, S.N. Variava and D.M. Dharmadhikari, JJ.

Author: Doraiswamy Raju, J.

Citation:  MANU/SC/1214/2002,2002 SCALE 9 5772003 AIR SC 27992002 AIOL 592003 SCC 3 2722003 BOMCR SC 4 4462003 SUPREME 1 2622003 AIR SC 25882003 AIR SCW 2799 

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Framework for Determining Joint and Inseverable vs. Separable Decrees in the context of abatement proceeding: Sardar Amarjit Singh Kalra Analysis

 Constitutional Framework Established

The Constitution Bench of the Supreme Court in Sardar Amarjit Singh Kalra (Dead) by LRs v. Pramod Gupta (Smt.) (Dead) by LRs (2003) 3 SCC 272 established a comprehensive framework for determining whether decrees are joint and inseverable or separable, particularly in the context of abatement proceedings.

Four-Point Test for Decree Classification

1. Distinct and Separate Rights Analysis

The Court held that wherever plaintiffs, appellants, or petitioners are found to have distinct, separate and independent rights of their own and for convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed should be viewed in substance as a combination of several decrees in favor of one or the other parties and not as a joint and inseverable decree.

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Whether partition suit will abate if legal representatives of deceased are not brought on record?

 At this juncture, this Court worth recall the decisions in Morasa Anjaiah v. Kondragunte Venkateswarlu and other, MANU/AP/0030/1993 : AIR 1993 AP 156 wherein it is held hereunder:

a partition suit does not abate even if legal representatives are not brought on record.{Para14}

 On a careful consideration of the contention advanced on behalf of the Revision Petitioners and also in the light of an established facts that a partition suit does not abate even a legal representatives are not brought on record this Court comes to an inevitable conclusion that the view taken by the trial Court to the effect that I.A. No. 238 of 2000 filed by the Revision Petitioners his hit by a limitation is not quite tune that the principle of law and as such this Court per-forced to interfere with the orders passed by the trial Court and accordingly allows the present Civil Revision Petition in the interest of justice leaving the parties to bear their own costs. {Para 17}

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

C.R.P. (NPD)(MD) No. 2698 of 2001

Decided On: 25.01.2011

 Mariyammal and Ors. Vs. S. Mariyappan and Ors.

Hon'ble Judges/Coram:

M. Venugopal, J.

Citation: MANU/TN/0551/2011

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When an appeal will not abate even if legal heir of one of the parties is not brought on record?

 Learned counsel for the appellant has placed reliance on the case reported as 2009 (2) Mh.L.J. 1 : [2008 ALL SCR 1944] (P.B. Devaswom v. Bhargavi Amma). In this case the Apex Court has discussed the provisions of Order XXII Rules 9 and 11 of the Code of Civil Procedure Code and Section 5 of the Limitation Act in paragraph 13. Para 13 reads thus :-

"13. Thus it can safely be concluded that if the following three conditions exist, the Courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceased - on account of the abatement):

(i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed;

(ii) Neither the counsel for the deceased respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the Court and the Court has not given notice of such death to the appellant;

(iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt orcontradict his claim." {Para 10}

12. The Apex Court has held that in view of this provision the Court can decide to proceed ex parte even after death of a defendant without Legal Representative of deceased defendant if parameters of Order XX Rule 4(4) CPC are complied with. The object behind this provision needs to be kept in mind and the power given to the Court can be used in a case like present one.

13. In view of the facts and circumstances of the present case, this Court hold that the aforesaid provisions can be used in the present case. Thus, it cannot be said that the appeal is liable to dismissed. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

T. V. NALAWADE, J.

Prabhakar s/o. Apparao Pawar & Anr. Vs. Vaijnath s/o. Babarao Pawar & Ors.

Civil Application No.12021 of 2012,Civil Application No.8010 of 2013,Second Appeal No.117 of 2011

13th March, 2014.

Citation: 2015(4) ALL MR 273

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What is Impact Of Reduction Of Number Of Convicts Below 5 Pending An Appeal Against Conviction U/Sec 149 IPC Owing To Death Of Co-Convicts?

  The next question to be looked into to appreciate the contentions of the appellant is whether the reduction in number of the convicts below five on account of death of the co-accused got any impact or effect on the surviving convict(s) in the matter of consideration of his/their, vicarious liability in view of Section 149, I.P.C. There can be no two views on the position that reduction of number of accused/convicts in an appeal, below five on account of acquittal of co-accused/co-convicts and such reduction in numbers below five due to death of co-convicts are different and distinct.{Para 12}

14. As stated above, the effect and impact of reduction of the number of convicts pending an appeal owing to the death of co-convicts is bound to be different from the effect and impact of reduction of the number of accused/convicts on account of acquittal.

16. The long and short of the aforesaid discussion is that the mere fact that seven out of the ten convicts died, either during the pendency of Criminal Appeal No. 1510/1992 before the High Court or during the pendency of this appeal, could not be a reason, by that itself, to canvass non applicability of the provision for constructive/vicarious liability, arising out of the achievement of the common object by the unlawful assembly.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 965 OF 2018; 

 Gurmail Singh & Anr. VsState of Uttar Pradesh & Anr.

Coram: C.T. RAVIKUMAR; J., SUDHANSHU DHULIA; J.

Dated; October 17, 2022

Author: C.T. RAVIKUMAR, J.

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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.

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Supreme court: Appeal Against Composite Sentence Of Imprisonment & Fine Does Not Abate On The Death Of The Accused

 Rejecting the above submission, this Court laid down that if by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of Section 431. In paragraph 10, following was laid down:

10. The narrow question which then requires to be considered is whether an appeal from a composite order of sentence combining the substantive imprisonment with fine is for the purposes of Section 431 not an appeal from a sentence of fine. It is true that an appeal from a composite order of sentence is ordinarily directed against both the substantive imprisonment and the fine. But, such an appeal does not for that reason cease to be an appeal from a sentence of fine. It is something more not less than an appeal from a sentence of fine only and it is significant that the parenthetical Clause of Section 431 does not contain the word "only". To limit the operation of the exception contained in that Clause so as to take away from its purview appeals directed both against imprisonment and fine is to read into the Clause the word "only" which is not there and which, by no technique of interpretation may be read there. The plain meaning of Section 431 is that every criminal appeal abates on the death of the Accused "except an appeal from a sentence of fine". The Section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of Section 431. All that is necessary is that a sentence of fine should have been imposed on the Accused and the appeal filed by him should involve the consideration of the validity of that sentence.

16. The above judgment categorically laid down that even if sentence of fine is imposed alongwith the sentence of imprisonment Under Section 431, such appeal shall not abate. The similar expression, which was used in Section 431, i.e., "except an appeal from the sentence of fine" has been used in Section 394 Code of Criminal Procedure. Thus, the appeal in the present case where Accused was sentenced for imprisonment as well as for fine has to be treated as an appeal against fine and was not to abate and High Court did not commit any error in deciding the appeal on merits.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 77 of 2020 

Decided On: 21.01.2020

 Ramesan (Dead) through L.R.  Vs.  The State of Kerala

Hon'ble Judges/Coram:

Ashok Bhushan and M.R. Shah, JJ.

Citation: MANU/SC/0065/2020,(2020) 3 SCC 45

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What are tests for determining whether an appeal will abate as whole or partially?

The next question which arises is whether non-substitution of legal representatives of the deceased defendant Nos. 4, 8 and 9 has resulted in abatement of the appeal in its entirety or only qua the deceased defendants. In this regard it would be advantageous to refer to the decision in Budh Ram & Ors. vs. Bansi & Ors. MANU/SC/0565/2010 : 2010 (11) SCC 476 wherein after considering previous judgments on the issue the Apex Court has held thus:

"17. Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of LRs of the defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respondents, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter-dependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-à-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test.".

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 488 of 2017 

Decided On: 09.08.2019

 Yashwant Hari Parit  Vs.  Sunita Ashok Bhandare 

Hon'ble Judges/Coram:

Anuja Prabhudessai, J.

Citation: 2020(2) MHLJ 191

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When court should pass order of abatement of appeal against some of parties or all of parties?

The exposition of the Constitution Bench in Sardar Amarjit Singh Kalra (Dead) by LRs and Ors. (supra) is as under:

34. In the light of the above discussion, we hold:

(1) Wherever the Plaintiffs or Appellants or Petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree.

The same would be the position in the case of Defendants or Respondents having similar rights contesting the claims against them.

(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees.

(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one.

(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other.

20. It was further considered in Budh Ram and Ors. v. Bansi and Ors. MANU/SC/0565/2010 : 2010 (11) SCC 476 and the principle, therefore, emerges is to test whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer from the vice of contradictory or inconsistent decrees inasmuch as the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 8109 and 8110 of 2010

Decided On: 26.04.2019

Goli Vijayalakshmi  Vs.  Yendru Sathiraju 

Hon'ble Judges/Coram:

A.M. Khanwilkar and Ajay Rastogi, JJ.

Citation: (2019)11 SCC 352

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When court should dismiss whole appeal as abated if there is death of one of appellant?

We would think that the appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the Defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the Appellant.

19. We would think that the situation cannot be any other different, when we contemplate the converse of the aforesaid scenario which happens to be the factual matrix obtaining in this case. The right which was set up by the Appellant alongwith his late brother was joint. They were members of the joint Hindu family consisting of their late father and which consisted of late Govindareddi, their father Shriram Reddy and Basavareddi, who was none other than the husband of the second Defendant. This is not a case where their claims were distinct claims. 

21. The decree, which the Appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the Defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed.

22. The argument that in view of the order passed on 10/09/2001 by which despite the death of late brother of the Appellant, permission to prosecute the appeal was granted by the court there would arise an estoppel against the order being passed holding that the appeal has abated as a whole, cannot be accepted. The impact of death of the late brother of the Appellant qua the proceeding is one arising out of the incompatibility of a decree which has become final with the decree which the Appellant invites the appellate court to pass. In such circumstances, the mere fact that the Appellant was permitted to prosecute the appeal by an interlocutory order would not be sufficient to tide over the legal obstacle posed by the inconsistent decree which emerges as a result of the failure to substitute legal representative of the late brother and the abating of the appeal filed by his late brother. Consequently, we see no merit in the appeal. It is accordingly dismissed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4103 of 2008

Decided On: 07.05.2019

Hemareddi  Vs.  Ramachandra Yallappa Hosmani and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan and K.M. Joseph, JJ.

Citation: (2019) 6 SCC 756

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Whether right to sue will survive if plaintiff dies during pendency of appeal in defamation suit?

 Where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal is his right to sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the appellant dies during the pendency of the appeal. The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged in the decree and the decretal debt forms part of his estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff-respondent which his legal representatives is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff.

10. Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also.

11. The position, therefore, is that had the Appellant died during the pendency of his suit, the suit would have abated. Had he died during the pendency of the appeal filed by him in the District Court, the appeal would have equally abated because his suit had been dismissed by the Trial Court, had he, however, died during the pendency of the second appeal filed by the respondent in the High Court, the appeal would not have abated because he had succeeded in the first appeal and his suit had been decreed. As, however, the High Court allowed the second appeal and dismissed the suit, the present Appeal by Special Leave must abate because what the Appellant was seeking in this Appeal was to enforce his right to sue for damages for defamation. This right did not survive his death and accordingly the Appeal abated automatically on his death and his legal representatives acquired no right in law to be brought on the record in his place and stead.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 91 of 1972

Decided On: 29.11.1985

Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair

Hon'ble Judges/Coram:

D.P. Madon and G.L. Oza, JJ.

Citation: (1986) 1 SCC 118.

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Whether appeal will abate as a whole if there is death of one co-appellant?

 In this case, undoubtedly as we have noted the appellant and his late brother sued as plaintiffs for a declaration that the first defendant was not the adopted son and he has no rights. They also sought a prohibitory injunction. The suit stood dismissed by trial court. Let us take the converse position. Assuming that the suit was decreed by the trial court and appeal was carried by the defendants, and pending the appeal by the defendants, if the late brother of the appellant had died and if the defendants had not impleaded the legal representatives of late brother and the appeal abated as against him, would it then not open to the appellant as respondent in the appeal to contend

that if the appeal was to be allowed to proceed in the absence of the legal representatives of his late brother and succeed, there would be an inconsistent decree. On the one hand, there will be a decree by the trial Court declaring that the first defendant was not the adopted son and had no interest in the property qua the late brother of the appellant. On the other hand, the appellate court could be invited to pass a decree which should be to the effect that the first defendant was found to be the adopted son and had right and interest over the property and a declaration to that effect would have to be granted. Would not the appellate court then have to necessarily hold though the decree in favour of the deceased brother of the appellant has become final, and under it, a declaration is granted that the defendant No.1 is not the adopted son and he has no right to claim the property and there is an

injunction against him that he is the adopted son opposed to the decree which has been passed by the trial court which has attained finality. We would think that the appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the appellant.

19. We would think that the situation cannot be any other different, when we contemplate the converse of the aforesaid scenario which happens to be the factual matrix obtaining in this case. The right which was set up by the appellant alongwith his late brother was joint. They were members of the joint Hindu family consisting of their late father and which consisted of late Govindareddi,

their father Shriram Reddy and Basavareddi, who was none other than the husband of the second defendant. This is not a case where their claims were distinct claims. This is not the situation which was present in the case dealt with by the Constitution Bench under the land acquisition case. Therein, several persons came together and sought relief in one proceeding. We would think that this is not the position in this case.

20. It may be true that if a separate suit had been filed by the late brother and it had abated on his death, there will be no decree on merits and the suit would have abated. No doubt, it could be argued that even though the appellant and his late brother set up the case of joint right, it would only mean that they are co-owners of the property, and therefore, they had independent rights as co-owners

which could be canvassed in two different proceedings, and therefore, the decree of the trial court dismissing the suit be treated as two different decrees - one decree against the appellant and the other against his late brother. Even then, the decree, which the High court would be invited to pass, would be contradictory and inconsistent with the decree as against late brother of the appellant which may not be permissible in law.

21. The decree, which the appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth

of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4103 OF 2008

HEMAREDDI  Vs  RAMACHANDRA YALLAPPA HOSMANI

K.M. JOSEPH, J.

Dated:May 07, 2019.

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Whether case against Hindu undivided family will abate on death of its Karta?

The matter can be looked at from another point of view also. Rule 10, Order 30. Civil P.C. provides that a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under Order 30 shall apply accordingly. Rule 4 of Order 30. Civil P.C. provides that notwithstanding anything contained in Section 45 of the Contract Act, 1872, where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such person dies, whether before the institution or during the pendency of any suit, it shall not be necessary to joint the legal representatives of the deceased as a party to the suit. It is not disputed that Messrs. Rai Bahadur Kishore Chand and Sons was a Joint Hindu family concern and had been sued through its Karta, Rai Bahadur Kishore Chand. In view of the said provision of Rule 4. on the death of the Karta, it was not necessary to bring on record his legal representatives because the joint Hindu family concern continues to be a party in spite of the death of the Karta. So the question of the abatement of the appeal did not arise and the name of the new Karta could be impleaded as a party any time. It is therefore, not possible to sustain the view of the learned single Judge that the appeal had abated on the death of Rai Bahadur Kishore Chand, the Karta of the joint Hindu family concern and the impugned judgment is accordingly reversed.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Decided On: 21.03.1983

 Shila Wanti  Vs. R.B. Kishore Chand and Ors.

Hon'ble Judges/Coram:

S.S. Sandhawalia, C.J. and Satya Parkash Goyal, J.

Citation: AIR 1984 P& H 35

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Whether appeal will abate as a whole if legal heirs of respondent no 2 is not brought on record?

 Reverting to the present case, the claim for damages (excluding the damages for Rs. 6 lakhs, which are separately claimed against the defendant No. 2), is made jointly and severally against both the defendants. The claim is based on the ground that the defendant Nos. 1 and 2, reproduced the drawings and submitted the drawings to the NGPDA, which is an infringement of the copyright of the plaintiff, in the said drawings. It can thus be seen that the claim for damages, is joint and several against the defendant Nos. 1 and 2. It is on the basis of a claim that the defendant Nos. 1 and 2 by their joint act have infringed the copyright of the plaintiff. The Trial Court has dismissed the suit holding that there is no breach/infringement of any copyright. In appeal the legal representatives of the respondent No. 2 (defendant No. 2), have not been brought of record and thus, the Appeal has abated as against the respondent No. 2. The question is whether, this would result in abatement of the appeal as a whole and in my view, the answer has to be in the affirmative. This is because the decree which is challenged is "joint and inseverable". The defendant No. 1 or for that matter, defendant No. 2 were not capable of committing the alleged infringement on his own. The submission of the drawings/plans to the NGPDA required the services of an Architect to be engaged by the owner. The owner cannot submit such drawings on his own and thus, independently they were-in-capable of committing the infringement of the copyright as claimed by the plaintiff. The matter can be looked at, from another angle. For instance, if these appeals were to be allowed, it would result into two decrees, which would be in-congruent or contradictory in nature. While the decree against the defendant No. 2 holding that defendant No. 2 has not committed any infringement of the copyright, would subsist (as the appeal as against respondent No. 2 has abated), there would be a decree holding that the defendants have committed infringement of the copyright. Therefore, in my considered view, the appeals shall abate as a whole on account of the failure of the appellant to bring the legal representatives of the respondent No. 2 on record. The point is accordingly answered in the affirmative.

IN THE HIGH COURT OF BOMBAY AT GOA

First Appeal Nos. 221, 222 and 223 of 2007

Decided On: 19.07.2017

 Architect Bruno Dias Souza Vs. Gustavo Renato Pinto and Ors.

Hon'ble Judges/Coram:

C.V. Bhadang, J.

Citation: 2017(6) MHLJ 542

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Whether introduction of Plaintiff or Defendant for one stage of suit was introduction for all stages?

I, however, find that the question raised is fully covered by the decision of the Privy Council in Brij Indar Singh v. Kanshi Ram ILR 1917 Cal 94 : AIR 1917 PC 156 wherein it was ruled that introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages, even it be made on an appeal from a mere interlocutory order. In that case legal representatives of the deceased party were substituted in an application for revision pending in the Chief Court against an order of the trial Court directing the parties to produce certain documents. No application was, however, made for substitution of the legal representatives of the deceased in the suit. In holding that the suit did not abate, their Lordships of the Judicial Committee observed as follows:

"The plaintiff as representative of the original plaintiff, and the defendant's representatives of Joti Lal, had been introduced in the Chief Court. No doubt that was only done in the course of an interlocutory application as to production of books. But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages and the prayer, which seems to have been made ob majorem cautelam by the plaintiff, in his application to the District Judge Prenter under Section 365, was superfluous and of no effect. Coates, the judgment-debtor was only formally called, and the non-presence of his representatives would afford no ground for the abatement of the suit."

5. Mr. R. P. Bali appearing for the respondent, has brought to my notice that their Lordships of the Supreme Court have, in Rangubai v. Sunderbai MANU/SC/0007/1965 : AIR 1965 SC 1794, accepted this as an authority for the proposition that if the legal representatives of the deceased plaintiff or defendant are brought on record in an appeal or revision within the prescribed time at one stage of the suit it will ensure for the benefit of all the subsequent stages of the suit, though they have ruled that the same principle cannot be invoked in the reverse case as a suit is not a continuation of an appeal and an order made in a suit subsequent to the filing of an appeal at an earlier stage cannot be projected backwards into the appeal that had already been filed.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revn. No. 260 of 1971

Decided On: 04.10.1972

 Harbans Lal Vs.Ved Parkash

Hon'ble Judges/Coram:

Gurdev Singh, J.

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Whether order bringing legal representatives on record would enure for subsequent stages of suit?

Let us now consider the question on principle. A combined reading of Order XXII, Rules 3, 4 and 11, of the Code of Civil Procedure shows that the doctrine of abatement applies equally to a suit as well as to an appeal. In the application of the said Rules 3 and 4 to an appeal, instead of "plaintiff" and "defendant", "appellant" and "respondent" have to be read in those rules. Prima facie, therefore, if a respondent dies and his legal representatives are not brought on record within the prescribed time, the appeal abates as against the respondent under r. 4, read with r. 11, of O. XXII of the Code of Civil Procedure. But there is another principle recognized by the Judicial Committee in the aforesaid decision which softens the rigour of this rule. The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit. The application of this principle to different situations will help to answer the problem presented in the present case. (1) A filed a suit against B for the recovery of possession and mesne profits. After the issues were framed, B died. At the stage of an interlocutory application for production of documents, the legal representatives of B were brought on record within the time prescribed. The order bringing them on record would enure for the benefit of the entire suit. (2) The suit was decreed and an appeal was filed in the High Court and was pending therein. The defendant died and his legal representatives were brought on record. The suit was subsequently remanded to the trial Court. The order bringing the legal representatives on record in the appeal would enure for the further stages of the suit. (3) An appeal was filed against an interlocutory order made in a suit. Pending the appeal the defendant died and his legal representatives were brought on record. The appeal was dismissed. The appeal being a continuation or a stage of the suit, the order bringing the legal representatives on record would enure for the subsequent stages of the suit. This would be so whether in the appeal the trial Court's order was confirmed, modified or reversed. In the above 3 illustrations one fact is common, namely, the order bringing on record the legal representatives was made at one stage of the suit, be it in the suit or in an appeal against the interlocutory order or final order made in the suit, for an appeal is only a continuation of the suit. Whether the appellant order confirms that of the first Court, modifies or reverses it, it replaces or substitutes the order appealed against. It takes its place in the suit and becomes a part of it. It is as it were the suit was brought to the appellate Court at one stage and the orders made therein were made in the suit itself. Therefore, that order enures for the subsequent stages of the suit.

13. But the same legal position cannot be invoked in the reverse or converse situation. A suit is not a continuation of an appeal. An order made in a suit subsequent to the filing of an appeal at an earlier stage will move forward with the subsequent stages of the suit or appeals taken therefrom; but it cannot be projected backwards into the appeal that has already been filed. It cannot possibly become an order in the appeal. Therefore, the order bringing the legal representatives of the 7th respondent on record in the final decree proceedings cannot enure for the benefit of the appeal filed against the preliminary decree. We, therefore, hold that the appeal abated so far as the 7th respondent was concerned.

IN THE SUPREME COURT OF INDIA

Civil Miscellaneous Petition Nos. 2402 of 1964

Decided On: 01.03.1965

Rangubai Kom Shankar Jagtap Vs.  Sunderabai Bhratar Sakharam Jedhe and Ors.

Hon'ble Judges/Coram:

J.C. Shah, K. Subba Rao and R.S. Bachawat, JJ.

Citation:(1966)1 SCA 29,68 BOM LR 26

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Whether suit or appeal will abate if all legal heirs are not brought on record?

When this provision speaks of "legal representatives" is it the intention of the legislature that unless each and every one of the legal representatives of the deceased defendants, where these are several is brought on record there is no proper constitution of the suit or appeal, with the result that the suit or appeal would abate ? The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the decease and the decision obtained with them on record will bind not merely those impleaded but the entire estate included those not brought on record. The principle of this rule of law was thus explained is an early decision of he Madras High Court in Kadir v. Muthukrishna Ayyar (1902) I.L.R. Mad. 230. The facts of that case were that when the defendant died the first defendant before the Court was impleaded as his legal representative. The impleaded person raised no objection that he was not the sole legal representative of the deceased defendant and that there were others who had also to be joined. In these circumstances, the Court observed :

"In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposed of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate ...... If this were not the law, it would in no few cases, be practically impossible be secure a complete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan Party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose by a person whose name is entered on the record in place of the deceased party under sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the legal representative."

15. This, in our opinion, correctly represents the law. It is unnecessary, here, to consider the question whether the same principle would apply when the person added is not the true legal representative at all. In a case where the person brought on record is a legal representative we consider that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 360 of 1962

Decided On: 08.09.1964

Daya Ram and Ors.Vs.Shyam Sundari

Hon'ble Judges/Coram:

P.B. Gajendragadkar, C.J., N. Rajagopala Ayyangar and J.C. Shah, JJ.

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Whether doctrine of abatement is applicable to appeals?

It is clear from the combined reading of Order
XXII Rules 3, 4 and 11 CPC that the doctrine of abatement is
applicable equally to a suit as well as to an appeal. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6567 OF 2015
BANWARI LAL (D) BY LRS. & ANR. V BALBIR SINGH .
Citation: 2016(6) MHLJ 1

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When appeal will abate as whole if legal heirs of one of deceased defendant is not brought on record?

 In Sardar Amarjit Singh Kalra & Ors. Vs. Pramod Gupta & Ors. AIR 2003 SC 2588, a Constitution Bench of this Court, while dealing with the similar issue, has after considering large number of judgments of this Court, reached the following conclusion :-

"(a) In case of "Joint and indivisible decree", "Joint and inseverable or inseparable decree", the abatement of proceedings in relation to one or more of the appellant(s) or respondent(s) on account of omission or lapse and failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal and require to be dismissed in toto as otherwise inconsistent or contradictory decrees would result and proper reliefs could not be granted, conflicting with the one which had already become final with respect to the same subject matter vis-a-vis the others; (b) the question as to whether the Court can deal with an appeal after it abates against one or the other would depend upon the facts of each case and no exhaustive statement or analysis could be made about all such circumstances wherein it would or would not be possible to proceed with the appeal, despite abatement, partially; (c) existence of a joint right as distinguished from tenancy in common alone is not the criteria but the joint  character of the decree, dehors the relationship of the parties inter se and the frame of the appeal, will take colour from the nature of the decree challenged; (d) where the dispute between two groups of parties centerd around claims or based on grounds common relating to the respective groups litigating as distinct groups or bodies -- the issue involved for consideration in such class of cases would be one and indivisible; and (e) when the issues involved in more than one appeals dealt with as group or batch of appeals, which are common and identical in all such cases, abatement of one or the other of the connected appeals due to the death of one or more of the parties and failure to bring on record the legal representatives of the deceased parties, would result in the abatement of all appeals." (Emphasis added) The Court further observed that any relief granted and the decree ultimately passed, would become totally unenforceable and mutually self-destructive and unworkable vis-`-vis the other part, which had become final. The appeal has to be declared abated in toto. It is the duty of the court to preserve and protect the rights of the parties.

18. In Shahazada Bi & Ors. Vs. Halimabi AIR 2004 SC 3942, this Court considered the same issue and held as under :-

"..................That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question  whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles. If the case is of such a nature that the absence of the legal representative of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties." (Emphasis added)

19. Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of LRs of the defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respondents, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter-dependent  upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-`-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test.

20. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. Therefore, in theory, every co-owner has an interest in every infinitesimal portion of the subject matter, each has a right irrespective of the quantity of its interest, to be in possession of every part and parcel of the property jointly with others. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless  partition takes place. In the instant case a declaratory decree was passed in favour of respondents/plaintiffs and Smt. Parwatu to the effect that they were co-owners, though, they had specific shares but were held entitled to be in "joint possession". The appellants/applicants had sought relief against Smt. Parwatu before the 1st Appellate court as there was a decree in her favour, passed by the Trial Court where Smt. Parwatu had been impleaded by the appellants/applicants as proforma respondent. In such a fact-situation, she had a right to contest the appeal. Once a decree had been passed in her favour, a right had vested in her favour. On her death on 19.11.2000, the said vested right devolved upon her heirs. Thus, appeal against Smt. Parwatu stood abated. In the instant case, the 1st Appellate Court rejected the application for condonation of delay as well as the substitution of LRs of Smt. Parwatu, respondent No. 4 therein. The only question remains as to whether the appeal is abated in toto or only in respect of the share of Smt. Parwatu. The High Court has rightly reached the conclusion that there was a possibility for the Appellate Court to reverse the Judgment of the Trial Court and in such an  eventuality, there could have been two contradictory decrees, one in favour of Smt. Parwatu and the other, in favour of the present appellants. The view taken by the High Court is in consonance with the law laid down by this Court consistently. The facts of the case do not warrant any further examination of the matter.

Reportable

Supreme Court of India

Budh Ram & Ors vs Bansi & Ors on 5 August, 2010

Bench: P. Sathasivam, B.S. Chauhan

Citation:2010 AIR SCW 5071

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