TaxTMI 
TaxTMI 
2022 (7) TMI 1641
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....esent appeals in a nutshell are as under: The two plaintiffs, namely, Shri Diwan Chand Anand and Smt. Chanan Kanta Anand claiming to be the co-owners of the suit property filed the suit before the Civil Court/learned Trial Court for declaration and permanent injunction. The suit was filed challenging the acquisition proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'). In the plaint defendant nos. 8 to 39 were impleaded alleging to be co-shares as proper parties to the suit. The original plaintiff no.2, Smt. Chanan Kanta Anand, was the wife of original defendant no.8 - Shri Dharam Chand Anand. On the demise of the husband and wife (original plaintiff no. 2 & defendant no. 8) their children were substituted both as plaintiff nos. 2(i) to 2(x) and defendant nos. 8(i) to 8(x). The suit was contested by the original defendant nos. 1 to 5 and 7 including the appellant DDA. They filed the written statement controverting the claim of the plaintiffs. The suit was resisted on the ground that the Civil Court had no jurisdiction with respect to a challenge to the acquisition proceedings under the Land Acquisition Act. Other defendant nos. 8 to 39 ....
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....o bring their Legal Representatives on record. This appeal accordingly stands abated." 2.5 That the appellant - DDA filed Review Petition No.314 of 2008 seeking review of the order dated 09.07.2007 dismissing the appeal as having abated. The High Court issued notice on 03.09.2008 which remained unserved till the decision in the impugned order dated 13.01.2012. In the meantime, the original plaintiff no.1 Shri Diwan Chand Anand was reported to have expired on 16.11.2010 and after ascertaining about his legal representatives, application for substitution, being CM No.22449 of 2011 was filed on 08.11.2012, which also remained pending. By the impugned order dated 13.01.2012 the High Court has dismissed the review application and has refused to recall the order dated 09.07.2007 dismissing the appeal as having abated. The original order passed by the High Court dated 09.07.2007 dismissing the main appeal as having abated and the subsequent order dated 13.01.2012 dismissing the review application and refusing to recall the order dated 09.07.2007 are the subject matter of the present appeals. 3. Shri Sanjay Poddar, learned Senior Advocate has appeared on behalf of the appell....
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....epresented the same in the appeal. It is submitted that the respondents/defendants who died did not file written statement and remained ex-parte and therefore they were not necessary parties for adjudication of the appeal. Reliance is placed upon the decision of this Court in the case of Mata Prasad Mathur vs. Jawala Prasad Mathur, (2013) 14 SCC 722 and Kanhiya Lal vs. Rameshwar, (1983) 2 SCC 260 (para 6). 4.4 It is further submitted that it is a well settled law that whether the appeal abets as a whole has to depend upon facts of each case and no straight formula is applicable since each case has its own peculiarities. It is submitted that the Hon'ble High Court has failed to examine this important and vital aspect which was required to be considered as observed and held by the Constitution Bench Judgment of this Hon'ble Court in the case of Sardar Amarjit Singh Kalra vs. Pramod Gupta, (2003) 3 SCC 272 (para 26). 4.5 It is urged that in the aforesaid Constitution Bench Judgment this Hon'ble Court has further held that the provisions of Order 22 Rule 4 CPC are required to be applied liberally with the object of protecting the rights of the parties and not to destr....
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.... in preferring the review was condoned by the High Court. Therefore, the appellant is entitled to seek exclusion of the period during the pendency of the review petition and the same has been challenged in the present proceeding. It is submitted that the submission of the respondents in this regard is liable to be rejected. This is because as observed and held by this Court in the case of Esha Bhattacharjee vs. Managing Committee of Ragunathpur Nafar Academy and others, (2013) 12 SCC 649 as well as in the recent decision in the case of Radha Gajapathi Raju & Ors. vs. P. Maduri Gajapathi Raju & Ors. In Civil Appeal No.6974-6975/2021 arising out of SLP (C) No.3373-3374 of 2020 decided on 22.11.2021 pendency of the proceedings in another Court can be said to be a sufficient ground for condonation of delay. Making above submissions and relying upon the above decisions, it is prayed to allow the present appeals, set aside the orders passed by the High Court dismissing the appeal as a whole as having abated due to non-bringing the legal representatives of some of the respondents - original defendants on record and to direct to decide the main appeal on merits. 5. While opposing the....
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....964, the co-sharers filed objections against the notification and nothing was heard for almost 5 years. On 19th September, 1966, one of the co-sharer of the said property, made representation against the proposed acquisitions to GoI. 6. On 23th December, 1966, the Central Govt wrote to the Lt. Governor of Delhi to release the land comprised in Khasra nos. 393, 394 & 395, covered by notification dated 21st March, 1964 7. Release Policy: On 7th January, 1967, Central Govt. made a policy decision that lands which were isolated and situated amidst built up areas and not required for public purposes were to be released from acquisition. On 10th January, 1967, the Central Govt. wrote to one of the co-owners, viz Shiv Raj Bahadur that Delhi Administration has been directed to de-notify the land in dispute. 8. Thereafter, on 6th February, 1967, the Lt. Governor of Delhi wrote to Central Govt. confirming necessary draft to de-notify the land to ensure directions. 9. Again on 10th October 1967, one of the co-sharer made another representation requesting for release of land. 10. On 9th February 1968, the GoI wrote to Delhi Administration that decis....
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....e suit property. It is submitted that thereafter in an appeal preferred by DDA alone, a number of opportunities were given to bring the legal representatives (LRs) of some of the respondents on record. But the DDA failed to bring on record the LRs of many of the respondents who died. It is submitted that, at one point of time, the suit was dismissed for non-prosecution which was later restored. Several of the five respondents i.e. the original purchasers of the lands and their heirs died. Even the plaintiff - original plaintiff no.1 - respondent died on 16.11.2010. Though opportunities were given for substitution of LRs. They were not substituted. It is submitted that in these circumstances, the High Court vide final order dated 09.07.2007 dismissed the appeal as abated. It is submitted that owing to the original plaintiff no.1 - respondent dying and also a number of other private respondents dying, the High Court in the said order, appears to have not given their details. It is submitted that however, it is not in dispute that a large number of private respondents did die during the pendency of the appeal and the LRs were not brought on record despite more than thirty opportunitie....
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....dly, the permanent injunction was granted in favour of the plaintiffs and private respondents (co-sharers) and against the land acquisition authorities as well as the DDA, where the DDA was restrained from dispossessing them. It is submitted that considering the aforesaid facts of the case, in the absence of legal representatives of the deceased respondents, the decree in respect of the suit property would become final vis-à-vis the said persons. But in the present proceedings in respect of the self-same suit property are allowed to continue as against the other respondents, the enforcement of the decree consequent to the possible success of the proceedings would lead to conflict of decrees not permissible in law. The relief of permanent injunction in favour of the deceased respondents would continue to be in force, whereas it would not be in force as against the respondents. This also will result in passing of two conflicting decrees which shall be incapable of enforcement. 5.6 It is submitted that the present is the case of "joint and indivisible decree"/"joint and inseverable or inseparable decree". Hence when there is omission or lapse or failure to bring on record th....
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....f of the contesting respondents that there is a huge delay in preferring the appeal challenging the order dated 09.07.2007 and therefore present Appeal may not be entertained. However, the appellant was bona fide prosecuting the review application. That after dismissal of the review application in which the appellant prayed to review and recall the order dated 09.07.2007, that the appellant has preferred two separate appeals, one, challenging the dismissal of the review application and another, challenging the original order dated 09.07.2007. Therefore, once the appellant was bona fide prosecuting the review application, it was justified in waiting for the outcome of the Review Application. If, without waiting for the outcome of the review application, the appellant would have preferred the appeal at that stage, the appellant would have been non- suited on the ground of the pendency of the review application and the appellant would have been told to wait till the outcome of the review application. Therefore, in the facts and circumstances of the case the time taken in prosecuting the review application is to be excluded and the appeal preferred challenging the order dated 09.07.200....
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....tion against the proposed acquisition to the Government of India, through the Hon'ble Minister Shri Mehar Chand Khanna of the Ministry of Works & Housing. A copy of the representation made, is attached herewith as Annexure "C". 44. That the Plaintiffs and the other co-sharers have all along been harassed for reasons unknown, for acquiring the said property by the Local Administration in spite of two specific directions and decisions of the Central Government to denotify the said property. (45) That the legal representatives of the co- sharers who had died, were entitled to be heard and although it was brought to the notice of the Land Acquisition Collector that there were legal representatives of the deceased owners, but they were not given any opportunity of being heard, and no notice was issued to them, therefore, the entire proceedings are vitiated. 47. That Defendants nos. 8 to 39 are co-sharers in the land in dispute and have been impleaded as proper parties to the suit" 8.3 That the plaintiffs being co-owners/co-sharers of the entire suit land in question prayed for the following reliefs: "(a) It is declared that the-entire proceedin....
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.... whole as having been abated on not taking step to bring on record the legal representatives of some of the original defendants/respondents in the appeal is required to be tested and/or considered in light of the settled legal principles. 9. While considering the impugned order passed by the High Court dated 09.07.2007, dismissing the appeal as having abated, the law on abatement and on Order 22 CPC is required to be discussed. Order 22 CPC fell for consideration before this Court in the recent decision in the case of Venigalla Koteswaramman (supra) in which this Court considered in detail the earlier decisions of this Court in the case of Nathu Ram (supra) as well as the other decisions including the later decision in the case of Hemareddi (supra). The relevant discussion on Order 22 CPC in paragraphs 42 to 44.8 are extracted as under: "42. The rules of procedure for dealing with death, marriage, and insolvency of parties in a civil litigation are essentially governed by the provisions contained in Order 22 of the Code. 42.1. Though the provisions in Rule 1 to Rule 10- A of Order 22 primarily refer to the proceedings in a suit but, by virtue of Rule 11, the....
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....efendant shall not cause the suit to abate if the right to sue survives. 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. *** 4. Procedure in case of death of one of several defendants or of sole defendant .- (1) 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. (2) Any person so made a party may make any defence appropriate to his character as legal representat....
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....t in appeal before the High Court. During pendency of appeal, one of the brothers died but no application was filed within time to bring on record his legal representatives. The High Court dismissed [Province of East Punjab v. Labhu Ram, 1954 SCC OnLine P&H 132] the appeal while observing that it had abated against the deceased brother and consequently, abated against the surviving brother too. The order so passed by the High Court was questioned before this Court in appeal by certificate of fitness. 44.3. While dismissing the appeal and affirming the views of the High Court, this Court in Nathu Ram case [State of Punjab v. Nathu Ram, AIR 1962 SC 89] enunciated the principles concerning the effect of abatement and explained as to why, in case of joint and indivisible decree, the appeal against the surviving respondent(s) cannot be proceeded with and has to be dismissed as a result of its abatement against the deceased respondent; the basic reason being that in the absence of the legal representatives of deceased respondent, the appellate court cannot determine between the appellant and the legal representatives anything which may affect the rights of the legal representati....
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.... to proceed further with the appeal and therefore dismiss it. 6. The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action ....
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....ion will ultimately depend upon the fact whether the decree obtained was a joint decree or a separate one. It is further observed that this question cannot and should not also be tested merely on the format of the decree under challenge or it being one or the manner in which it was dealt with before or by the Court which passed it. 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 appli....
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....n file a suit and recover the property against strangers and the decree would enure to all the co-owners. The aforesaid principle of law would be applicable in the appeal also. Thus, in the instant case, when the original plaintiffs - two co-owners instituted the suit with respect to the entire suit land jointly owned by the plaintiffs as well as defendants nos. 9 to 39 and when some of the defendants/respondents in appeal died, it can be said that estate is represented by others - more particularly the plaintiffs/heirs of the plaintiffs and it cannot be said that on not bringing the legal representatives of the some of the co-sharers - defendants - respondents in appeal the appeal would abate as a whole. 9.5 While passing the impugned order dated 09.07.2007, the High Court has neither considered the relevant provisions of CPC namely Order 22 Rule 1 to 11 nor held any enquiry which was required to be conducted as observed hereinabove. 9.6 One another important aspect which is also required to be noted is that the suit was filed challenging the acquisition proceedings under the Land Acquisition Act, that too, with respect to the land in question. It was the specific case on be....