Himachal Pradesh High Court
Reserved On: 08.04.2026 vs Poonam Verma on 22 April, 2026
2026:HHC:13034
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 154/2025
Reserved on: 08.04.2026
Decided on: 22.04.2026
.
Dinesh Kumar .....Appellant
Versus
Poonam Verma .....Respondent
Coram
of
The Hon'ble Mr. Justice Romesh Verma, Judge.
Whether approved for reporting ?1 Yes
For the appellant:
rt Mr. Ashok K. Tyagi, Advocate.
For the respondent: Mr. Neeraj Sharma, Sr. Advocate with
Mr. Vidush Sharma, Advocate.
Romesh Verma, Judge
The present appeal arises out of the judgment and decree, dated 01.04.2025, as passed by the learned Additional District Judge, Paonta Sahib, District Sirmaur, H.P., whereby the appeal preferred by the present appellant/defendant has been ordered to be dismissed and the judgment and decree dated 31.08.2022, as passed by the learned Sr. Civil Judge, Paonta Sahib, Distt. Sirmaur, H.P. have been affirmed whereby the suit filed by the plaintiff/respondent was decreed.
1Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 2 2 Brief facts of the case are that the respondent/ plaintiffs filed a suit for possession and permanent prohibitory injunction against the appellant/defendant on .
18.10.2011 before the learned Sr. Civil Judge, Paonta Sahib, Distt. Sirmaur. It was averred that Krishan Lal and Ramanand were owners in possession of the residential house and two shops, situated in Khasra No.165 of Abadi of Deh Majra. Ramanand was married with Smt. Shakuntla Devi and from this wedlock, plaintiffs were born, who are their only legal heirs. Subsequently, on 28.11.1985, Krishan Lal died rt issueless. Ramanand being his real brother inherited share of Krishan Lal and became absolute owner of the suit property. Ramanand sold one shop to Prem Chand in the year 1989 and now, Prem Chand is owner in possession of the said shop. Ramanand died on 29.9.1991, leaving behind plaintiffs as his daughters and Shankuntla Devi as his wife, being the only legal heirs.
3 As per the plaintiffs, they along with Shankuntla Devi inherited the suit property and they became absolute owners in possession of the same. It was further averred that late Krishan Lal had brought one Ashok Kumar in his childhood from Kapurthala and he was grown up as his child in the family and was residing in the house of his ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 3 family along with Shankuntla Devi. The defendant on 20.5.2000, approached Shankuntla Devi for taking shop on monthly rent of Rs.400/- in presence of Brijesh Goyal and .
Surender Kaur. The defendant offered to reconstruct/renovate the same for an amount of Rs.15,000/-
and accordingly, Shakuntla Devi agreed to adjust the aforesaid amount in monthly rental till its liquidation.
of Tenancy agreement was executed on 20.5.2000 between the defendant and Shakuntla Devi at Paonta Sahib in presence of the witnesses. The defendant after renovation of rt the shop again approached Shakuntla Devi in the presence of the witnesses and disclosed that he spent a sum of Rs.21,761/- instead of Rs.15,000/- on the renovation of the shop and proposed to incorporate the said amount and its liquidation in the tenancy agreement. As such additional tenancy agreement was executed on 15.1.2001, wherein it was agreed that the defendant shall pay monthly rent of Rs.400/- w.e.f. 01.02.2000 and an amount of Rs.21,767/-
shall be adjusted in the monthly rent till its liquidation for 54 months.
4 The agreement was got notarized with Notary Public, Mr. Anil Kumar Sareen, Advocate. The original tenancy agreement was handed over to the defendant and its ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 4 copy was retained with Shakuntla Devi. After the liquidation of the amount of Rs.21,767/-, spent on the renovation of the shop, on 31.8.2004, in 54 months w.e.f.
.
1.2.2000 to 31.8.2004, the tenancy for a fixed period of 18 months commenced w.e.f. 1.9.2004. Shankuntla Devi died on 14.05.2002 leaving behind the plaintiffs as her legal heirs and the plaintiffs became owners of the suit property.
of Thereafter, the defendant stopped paying rent w.e.f.
1.6.2005. The tenancy of the defendant came to an end on 28.2.2006 as per terms and conditions of tenancy rt agreement, dated 15.1.2000 and thus, the defendant is in unauthorized possession of the suit property from 1.3.2006 onwards. The plaintiffs, through their power of attorney, Kapil Verma @ Lucky, are looking after the suit, who is residing with his father in the house adjoining to the shop in question. Though the defendant was persuaded to vacate the suit property, but he failed to do so and filed Civil Suit No. 33/1 of 2007, titled as Dinesh Kumar vs. Ashok Kumar before the learned trial court, in which the plaintiffs were not made party and later on the suit was dismissed on 9.12.2009.
5 Against dismissal of the said suit, the defendant/appellant preferred an appeal, which also came to ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 5 be dismissed. The plaintiffs filed Civil Suit No. 52/1 of 2007, titled as Poonam Verma vs. Dinesh Kumar for possession of the suit property on the basis of title as the .
tenancy of the defendant had expired. The aforesaid suit was decreed vide judgment and decree, dated 21.9.2010, against which the defendant preferred an appeal before the Court of learned District Judge and the same was allowed on the of ground that no legal notice was issued to the defendant for his eviction from the suit property.
6 It was averred in the plaint that the defendant rt had admitted Shakuntla Devi to be owner and landlady of the suit property on the basis of the agreement, dated 15.1.2000 and 20.5.2000 in Civil Suit No. 33/1 of 2007, but denied rights of the plaintiffs in the Civil Suit No. 52/1 of 2007. The defendant was served with a registered AD notice dated 10.9.2011 and after receipt of the notice, the defendant is no more tenant of the shop in question, as such he is legally bound to hand over vacant possession of the premises to the plaintiffs. Therefore, the plaintiffs filed suit for possession, permanent prohibitory injunction and for grant of rent, use and occupation charges of the suit property before the learned trial court.
::: Downloaded on - 25/04/2026 08:23:23 :::CIS 67 The suit was contested by the defendant by raising preliminary objections qua maintainability, locus standi, valuation etc. On merits, all the averments, as made .
in plaint, were refuted and it was stated in the written statement that there is no relationship of the landlord and tenant between the parties. It was denied that Krishan Lal and Rama Nand were owners in possession of the suit of property. It was stated that the plaintiffs are required to prove relationship of Rama Nand with Shakuntla Devi.
Further, it was stated that the plaintiffs are permanent rt residents of Punjab and have no concern with the suit property nor Shankuntla Devi ever resided or occupied the suit property at any point of time. The defendant/appellant specifically stated that the plaintiffs have got no right and title over the suit property and there is no relationship of landlady and tenant between the parties, therefore, the suit, as filed by the plaintiffs, is bound, to be dismissed.
8 The plaintiffs filed replication to the written statement filed by the defendant, wherein all the averments as made in the plaint were reiterated.
9 The learned trial court on 10.01.2013 framed the following issues:-
::: Downloaded on - 25/04/2026 08:23:23 :::CIS 71. Whether the plaintiffs are owners of the suit property? OPP
2. Whether the tenancy agreement between the plaintiffs and defendants stand terminated and the .
defendant is liable to hand over the possession of the suit property to the plaintiffs, as alleged? OPP.
3. Whether the defendant is liable to pay arrear of rent (along with interest) to the plaintiff w.e.f. 1.9.2008 to 30.8.2011, as alleged? OPD.
4. Whether the defendant is liable to pay for the of unauthorized use and occupation charges of the shop @ Rs.2000/- per month w.e.f. 1.10.2011, as alleged? OPP
5. Whether the suit is not maintainable? OPD rt
6. Whether the plaintiffs have no locus standi to file the present suit? OPD
7. Whether the plaintiffs have no concern with the suit property? OPD
8. Whether there is no relationship of landlord and tenant between the parties, as alleged? OPD
9. Relief.
10 The learned trial court directed the parties to adduce evidence in support of their contentions to corroborate their respective case and ultimately, the learned trial court vide its judgment and decree, dated 31.08.2022 decreed the suit of the plaintiffs/respondent, whereby the defendant/petitioner was directed to hand over the vacant possession of the suit property to the plaintiffs within one month from the date of order. He was further directed to pay ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 8 Rs.14,400/- along with interest @ 9% per annum from 30.8.2011 till realization as also use and occupation charges @ Rs.500/- per month from 1.10.2011 till the vacant .
possession is handed over to plaintiffs along with interest @ 9% per annum from 1.10.2011 till realization.
11 The defendant/appellant, feeling dissatisfied by the judgment and decree as passed by the learned trial court, of preferred an appeal before the learned first Appellate Court on 01.04.2025, which came to be dismissed vide judgment and decree dated 01.04.2025.
12rt Still, aggrieved by the aforesaid judgments and decrees, the appellant/defendant has preferred the instant regular second appeal, which came up for consideration before this Court on 09.07.2025, when notice was issued to the respondent/plaintiff No.1 on substantial question of law No.3, which reads as under:-
"Whether the suit stood abated automatically in toto when the application under Order 22 Rule 9 CPC read with Order 22 Rule 3 CPC filed by the respondent/plaintiff was dismissed by learned trial court, since the suit property was inseparable and indivisible and similarly 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?"::: Downloaded on - 25/04/2026 08:23:23 :::CIS 9
13 With the consent of the parties, the instant appeal is finally heard at the admission stage.
14 It is contended by Mr. Ashok K. Tyagi, learned .
counsel appearing for the defendant/appellant that perusal of the memo of parties would reveal that the suit was filed by Poonam Verma, wife of Jagat Verma and Rano Devi, wife of Rajender Kumar before the learned Senior Civil Judge, of Paonta Sahib on 31.08.2022. He has submitted that during the pendency of the suit, plaintiff No.2 Rano Devi expired and an application under Order 22 Rules 3 and 9 CPC having rt been filed by plaintiff No.1 Poonam Verma, for bringing on record legal heirs of deceased plaintiff No.2, was dismissed and the suit was abated qua plaintiff No.2. He has submitted that since the suit was ordered to be abated qua plaintiff No.2, therefore, it ought to have been dismissed as a whole.
Learned counsel for the defendant/appellant has only argued, with vehemence, before this Court that the suit ought to have been dismissed as having been abated in toto.
15 On the other hand, Mr. Neeraj Sharma, learned Senior Advocate, assisted by Mr. Vidush Chauhan, Advocate, has defended the impugned judgments and decrees as passed by the learned courts below. He has submitted that there are concurrent findings of fact and the learned Courts ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 10 below have rightly determined point in controversy. He has further submitted that on account of death of plaintiff No.2 coupled with dismissal of application under Order 22 .
Rules 3 and 9 CPC, the suit could not have been dismissed as a whole since one of the surviving plaintiffs namely Poonam Verma was already on record as plaintiff No.1 and right to sue survives in her favour.
of 16 I have heard the learned counsel for the parties and have also gone through the case file in detail.
17 The only contention, which has been raised by rt the learned counsel for the appellant/defendant is that the suit ought to have been dismissed as a whole, once the learned trial court came to the conclusion that on account of death of plaintiff No.2, Rano Devi, proceedings qua her stood abated.
18 It would be apposite to reproduce provisions of Order 22 Rules 3 and 9 CPC, which read as under:-
"3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.--(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 11 proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, .
the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
9. Effect of abatement or dismissal.--
(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may rt apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the 1 [Indian Limitation Act, 1877 (15 of 1877)] shall apply to applications under sub-rule (2).
[Explanation.--Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.]"
19 Judgment of the Hon'ble Supreme Court in Civil Appeal No. 7145/2022, titled as Siravarapu Appa Rao vs. Dokala Appa Rao, dated 11.10.2022 is answer to the ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 12 contention as raised by the learned counsel for the appellant/defendant. It shall be apposite to reproduce relevant paras of the aforesaid judgment, which read as .
under:-
"8. 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 of 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 rt 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 ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 13 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 of the death of one of the plaintiffs."
20 The Hon'ble Supreme Court has held that if there rt are more than one plaintiffs, entire suit cannot be held to be abated on the death of one of the plaintiffs.
21 To the similar effect is judgment, dated 03.08.2022, rendered by the Hon'ble Supreme Court in Civil Appeals No. 5067-5068/2022, titled as Sakharam (since deceased) through L.Rs vs Kishanrao, wherein it was held as under:-
"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 ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 14 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 of 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 rt No.3.
However, one of the two successful plaintiffs, who 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.
::: Downloaded on - 25/04/2026 08:23:23 :::CIS 15Abatement 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:-
.
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.
of
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 rt 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.
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."
22 In Civil Appeal No. 2397/2022, titled as Delhi Development Authority vs. Diwan Chand Anand, decided ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 16 on 11.07.2022, the Hon'ble Supreme Court has held as under:-
"8.4 Thus, from the aforesaid it can be seen that the original plaintiffs - two co-owners/co-sharers of the .
entire land in question fought with respect to the entire land belonging to the plaintiffs and the co-owners jointly. It can be said that the original plaintiffs instituted the suit for themselves as well as for and/or on behalf of the other co-owners - co-sharers with of respect to the entire land jointly owned by all of them. Thus, it can safely be held that the entire estate was represented through original plaintiffs in which even the co-sharers/co owners were also joined as defendants rt as proper parties. Therefore, even when the learned Trial Court passed the judgment and decree, it passed the judgment and decree with respect to the entire land and even granted the permanent injunction to protect the ownership and protection of the plaintiffs as well as the other co-sharers over the suit land. In light of the above factual scenario the order passed by the High Court dated 09.07.2007 in dismissing the first appeal as a 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 ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 17 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, of by virtue of Rule 11, the said provisions apply to the appeals too and, for the purpose of an appeal, the expressions "plaintiff", "defendant" and "suit" could be read as "appellant", "respondent" and "appeal"
respectively.
rt 42.2. Rule 1 of Order 22 of the Code declares that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. When read for the purpose of appeal, this provision means that the death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives.
42.3. Rule 2 of Order 22 of the Code ordains the procedure where one of the several plaintiffs or defendants dies and right to sue survives to the surviving plaintiff(s) alone, or against the surviving defendant(s) alone. The same procedure applies in appeal where one of the several appellants or respondents dies and right to sue survives to the surviving appellant(s) alone, or against the surviving respondent(s) alone. The procedure is that the Court is required to cause an entry to that effect to be made on record and the appeal is to proceed at the instance of the surviving appellant(s) or against the surviving respondent(s), as the case may be.
42.4. However, by virtue of Rule 4 read with Rule 11 of Order 22 of the Code, in case of death of one of the several respondents, where right to sue does not survive against the surviving respondent or respondents as also in the case where the sole respondent dies and the right to sue survives, the contemplated procedure is that the legal representatives of the deceased respondent are to be substituted in his place; and if no application is made for such substitution within the time limited by law, the appeal abates as against the deceased respondent.
::: Downloaded on - 25/04/2026 08:23:23 :::CIS 1842.5. Of course, the provisions have been made for dealing with the application for substitution filed belatedly but the same need not be elaborated in the present case because it remains an admitted fact that no application for substitution of legal representatives of Defendant 2 (who was Respondent Court.
.
42.6. The relevant provisions contained in Rules 1, 2, sub-rules (1), (2) and (3) of Rule 4 and Rule 11 of Order 22 could be usefully reproduced as under:-
"1. No abatement by party's death, if right to sue survives.--The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
of
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 rt 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 representative of the deceased defendant.
(3) Where within the time limited by law no application is made under subrule (1), the suit shall abate as against the deceased defendant.
*** ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 19
11. Application of Order to appeals.--In the application of this Order to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal."
43. For determining if Order 22 Rule 2 could apply, we .
have to examine if right to sue survived against the surviving respondents. It is not the case that no legal heirs were available for Defendant 2. It is also not the case where the estate of the deceased Defendant 2 passed on to the remaining parties by survivorship or otherwise. Therefore, applicability of Order 22 Rule 2 CPC is clearly ruled out.
44. Admittedly, steps were not taken for substitution of of the legal representatives of Defendant 2, who was Respondent 3 in AS No. 1887 of 1988. Therefore, subrule (3) of Rule 4 of Order 22 of the Code directly came into operation and the said appeal filed by Defendants 16 to 18 abated against Defendant 2 (Respondent 3 therein). We may profitably recapitulate at this juncture that in rt fact, the other appeal filed by Defendants 4, 13 and 14 (AS No. 1433 of 1989) was specifically dismissed by the High Court as against the deceased Defendant 2 on 25--
4-2006.
44.1. Once it is found that the appeal filed by Defendants 16 to 18 abated as against Defendant 2 (Respondent 3), the question arises as to whether that appeal could have proceeded against the surviving respondents i.e. the plaintiff and Defendants 1 and 3 (who were Respondents 1, 2 and 4). For dealing with this question, we may usefully refer to the relevant principles, concerning the effect of abatement of appeal against one respondent in case of multiple respondents, as enunciated and explained by this Court.
44.2. The relevant principles were stated and explained in depth by this Court in State of Punjab v. Nathu Ram [State of Punjab v. Nathu Ram, AIR 1962 SC 89]. In that case, the Punjab Government had acquired certain pieces of land belonging to two brothers jointly. Upon their refusal to accept the compensation offered, their joint claim was referred to arbitration and an award was passed in their favour that was challenged by the State Government 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 ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 20 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 of between the appellant and the legal representatives anything which may affect the rights of the legal representatives. This Court pointed out that by abatement of appeal qua the deceased respondent, the decree between the appellant and the deceased respondent becomes final and the appellate court rt cannot, in any way modify that decree, directly or indirectly.
44.4. The Court observed in that case, inter alia, as under: (Nathu Ram case [State of Punjab v. Nathu Ram, AIR 1962 SC 89] , AIR pp. 9091, paras 4-6 & 8) "4. It is not disputed that in view of Order 22 Rule 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22 Rule 4 does not provide for the abatement of the appeals against the co-- respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 21 them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.
5. The same conclusion is to be drawn from the provisions of Order 1 Rule 9 of the Code which .
provides that no suit shall be defeated by reason of the misjoinder or nonjoinder of parties and the court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, of it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.
rt
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 for the necessary relief against those respondents alone who are still before the court; and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.
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8. The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed .
as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents of can be suitably dealt with by the appellate court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree rt holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken."
9.1 After referring to the decision of this Court in the case of Nathu Ram (supra), in the case of Vennigalla Koteswaramma vs. Malampati Suryamba and Others, (2003) 3 SCC 272, it is observed by this Court that the nature and extent of the abatement in a given case and the decision to be taken thereon will depend upon the facts of each case and, therefore, no exhaustive statement can be made either way and that the decision will ultimately ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 23 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;
of
(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 rt 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.
9.2 As observed and held by this Court in the aforesaid decisions while considering whether the suit/appeal has abated due to non-bringing the legal representatives of plaintiffs/defendants or not, the Court has to examine if the right to sue survives ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 24 against the surviving respondents. Thereafter the Appellate Court has to consider the question whether non-bringing 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.
9.3 Applying the law laid down by this Court in the aforesaid decisions to the impugned judgment and of order dated 09.07.2007 passed by the High Court, it appears that the High Court has mechanically and without holding any further enquiry which was rt required to be conducted as observed hereinabove, has simply dismissed the entire appeal as having abated due to non-bringing on record the legal representatives of some of the respondents - the original defendants who, as such, neither contested the suit nor filed the written statements. At the cost of repetition, it is observed that as such the original plaintiffs instituted the suit being co owners/co--
sharers and for and on behalf of all the co owners/co-sharers of the entire land sought to be acquired under the Land Acquisition Act.
9.4 As observed and held by this Court in the case of K. Vishwanathan Pillai (supra), the co-owner is as much an owner of the entire property as a sole owner of the property. No co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property. He owns several parts of the composite ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 25 property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. It is observed that, therefore, one co-- owner can 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 of 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 rt 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.
9.7 In any case what would have been the consequences of not bringing the legal representatives of some of the respondents/defendants who died during the pendency of the appeal and whether the right to sue survives against the original plaintiffs and/or surviving respondents/defendants was to be considered by the High Court, which the High Court failed to consider in the instant case.
10. In view of the above discussion and for the reason stated above both these appeals succeed. The impugned judgment and order passed by the High Court dated 09.07.2007 dismissing the appeal as a whole as having abated for not bringing the ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 26 legal representatives of some of the respondents/original defendants who died during the pendency of the appeal is hereby set aside. The High Court to consider the Appeal now in .
accordance with law and on its own merits and in light of the observations made hereinabove, more particularly, the High Court shall have to consider and hold an enquiry, whether, on the death of some of the respondents in the appeal (defendants in suit) the right to sue against the remaining respondents -
of original plaintiffs/the remaining original defendants would survive or not including the fact that the estate is being represented by surviving original plaintiffs/heirs of the original plaintiffs/surviving rt defendants having a bearing on the enquiry to be held."
23 The sole contention of the learned counsel for the appellant has been answered by the Hon'ble Supreme Court in catena of its decisions, some of which have been quoted hereinabove, whereby it has been categorically held that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. In case there are more plaintiffs or defendants than one, and anyone 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 ::: Downloaded on - 25/04/2026 08:23:23 :::CIS 27 the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. The legal proposition, as laid down by the Hon'ble Apex Court, is clear .
and specific. Therefore, the contention as made by the learned counsel for the appellant/defendant does not hold good.
24 No other point was urged by the learned counsel of for the defendant/appellant.
25 The learned courts below have rightly appreciated the point in controversy after considering the rt oral as well as documentary evidence placed on record. No question of law much less substantial question of law arises in the instant appeal.
26 In view of the aforesaid discussions and for the reasons stated here-in-above, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of.
22nd April, 2026 (Romesh Verma)
(pankaj) Judge
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