Supreme Court - Daily Orders
Siravarapu Appa Rao vs Dokala Rppa Rao on 11 October, 2022
Bench: Surya Kant, M.M. Sundresh
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.7145 OF 2022
(Arising out of SLP(C)No.26284 of 2017)
SIRAVARAPU APPA RAO & ORS. … APPELLANTS
Versus
DOKALA APPA RAO … RESPONDENT
O R D E R
1. Leave granted.
2. The instant appeal by way of special leave is directed against
judgment and order dated 16.03.2017 passed by the High Court of
Judicature at Hyderabad for the State of Telangana and the State of
Andhra Pradesh whereby the High Court dismissed the Second Appeal
filed by the appellants herein and held the judgment and decree of
the trial court stands nullified by reason of death of one of the
plaintiffs and that the suit stood abated.
3. The appellant Nos.1-4 before this Court are brothers whereas
appellant No.5 is their sister. The appellants along with one
Vemala Chanti jointly filed a suit for declaration of title and
recovery of possession against the respondent herein before the
learned Junior Civil Judge, Bhimavaram (hereinafter referred to as
`the Civil Court’) stating that the father of the respondent -
Yarakayya was in permissive possession of the subject schedule
property by way of a licence, and that after the death of the
licensor, the respondent herein continued to be in unauthorized
possession of the said schedule property.
Signature Not Verified
Digitally signed by
4.
VISHAL ANAND
Date: 2022.10.13
It is an undisputed fact that during the pendency of the
18:13:12 IST
Reason:
suit, one of the sisters of the appellants, namely, Vemala Chanti
passed away on 23.04.2011 and her legal representatives were not
brought on record. Regardless thereto, the Civil Court proceeded to
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decide the suit and decreed the same in favour of the appellants.
5. The respondent challenged the above-stated judgment and
decree by way of First Appeal before the III Additional District
Judge, Bhimavaram (hereinafter referred to as `the First Appellate
Court’). The First Appellate Court allowed the appeal solely on
the ground that one of the plaintiffs, namely, Vemla Chanti having
died on 23.04.2011 and as her legal representatives were not
brought on record, the suit qua her stood abated and since the
appellants and the deceased plaintiff jointly made a claim, the
decree obtained by the appellants is a nullity. To say it
differently, the First Appellate Court viewed that the suit got
abated not only against the deceased plaintiff, the said suit also
got abated as against the other plaintiff-appellants as the claim
was joint.
6. Aggrieved appellants filed a Second Appeal before the
High Court but their appeal was also dismissed on the same premise.
The High Court viewed that “Since her right in the property is
joint along with the appellants, the dismissal of the suit as
against her would result in the dismissal of the suit as against of
the appellants also. Otherwise there would be conflicting
judgments”.
7. We have heard learned counsel for the parties at a
considerable length and gone through the material placed on record.
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 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:
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(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 sub-
rule 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.
10. For the reasons aforestated, we allow this appeal, set
aside the judgment and decree dated 29.04.2016 passed by the III
Additional District Judge, Bhimavaram in Appeal Suit No.19 of 2014
as well as the judgment and decree dated 16.03.2017 passed by the
High Court in Second Appeal No.38 of 2017 and remit the matter to
the III Additional District Judge, Bhimavaram for fresh
adjudication of the First Appeal on merits and in accordance with
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law.
11. It is clarified that we have not expressed any opinion on
the merits of the case and the parties will be at liberty to
advance their arguments before the First Appellate Court.
12. The parties are directed to appear before the First
Appellate Court on 15.11.2022.
13. The status quo order passed by this Court on 22.09.2017
shall continue to operate till the decision of First Appeal, as
directed above.
.........................J.
(SURYA KANT)
..............…….........J.
(M.M. SUNDRESH)
NEW DELHI;
OCTOBER 11, 2022.
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ITEM NO.15 COURT NO.16 SECTION XII-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).26284/2017
(Arising out of impugned final judgment and order dated 16-03-2017
in SA No.38/2017 passed by the High Court of Judicature at
Hyderabad for the State of Telangana and the State of Andhra
Pradesh)
SIRAVARAPU APPA RAO & ORS. Petitioner(s)
VERSUS
DOKALA APPA RAO Respondent(s)
Date : 11-10-2022 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE M.M. SUNDRESH
For Petitioner(s) Mr. Sindoora VNL, Adv.
Mr. Raavi Venkata Yogesh, Adv.
Mr. Vishnu Shankar Jain, AOR
For Respondent(s) Mr. Nishit Agrawal, AOR
Ms. Kanishka Mittal, Adv.
UPON hearing the counsel the Court made the following
O R D E R
1. Leave granted.
2. The appeal is allowed in terms of the signed order.
3. The parties are directed to appear before the First Appellate Court on 15.11.2022.
4. The status quo order passed by this Court on 22.09.2017 shall continue to operate till the decision of First Appeal, as directed above.
(SATISH KUMAR YADAV) (PREETHI T.C.) DEPUTY REGISTRAR COURT MASTER (NSH) (Signed order is placed on the file)