Case Note & Summary
The appellants, Meera Vishwanath Patkar and Dhananjay Wadnerkar, filed a suit in the Civil Judge, Senior Division, Panaji, seeking a declaration that they are the owners of a property and for permanent injunction against four respondents. During the pendency of the suit, respondent no.1, Premabai Ramchandra Dessai, died. The trial court held that the suit abated as the legal representatives of the deceased were not brought on record within the prescribed time. The appellants challenged this order in the High Court of Bombay at Goa. The High Court framed the point for determination as whether the learned Judge was justified in holding that the suit abated. The court noted that the suit was for declaration and injunction against multiple defendants, and the cause of action was joint and several. Relying on Order 22 Rule 4 of the Code of Civil Procedure, 1908, the court held that the suit does not abate upon the death of one defendant if the cause of action survives against the remaining defendants. The court found that the trial court erred in holding the suit abated and set aside the impugned order, allowing the appeal and directing the trial court to proceed with the suit against the remaining defendants.
Headnote
A) Civil Procedure - Abatement of Suit - Order 22 Rule 4 CPC - Suit against multiple defendants - Death of one defendant - Suit does not abate if cause of action survives against remaining defendants - The court held that the suit filed by the appellants for declaration and injunction against four defendants did not abate upon the death of defendant no.1, as the cause of action was joint and several and survived against the other defendants (Paras 4-6).
Issue of Consideration
Whether the learned Judge was justified to pass the impugned order holding that the suit filed by the appellants stands abated?
Final Decision
The appeal is allowed. The impugned order dated 16/06/2012 passed by the Civil Judge, Senior Division, Panaji is set aside. The suit is restored to its original number and the trial court is directed to proceed with the suit against the remaining defendants in accordance with law.
Law Points
- Abatement of suit
- Order 22 CPC
- Survival of cause of action
- Joint and several liability
- Legal representatives
Case Details
2015 LawText (BOM) (03) 120
First Appeal No. 60 of 2014
Mr. A. D. Bhobe for appellants, Mr. D. Pangam for respondent no.2, Mr. J. P. Mulgaonkar for respondent nos. 3 and 4
Meera Vishwanath Patkar alias Mrudul Dhananjay Wadnerkar and Mr. Dhananjay Wadnerkar
Ms. Late Premabai Ramchandra Dessai (dropped), Shri Milind Ashok Desai, Shri Tito Goes Proenca, Mr. Lester Morgan Fernandes
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Nature of Litigation
Civil appeal against order of abatement of suit
Remedy Sought
Setting aside the order of the trial court holding the suit abated
Filing Reason
The trial court held that the suit filed by the appellants abated due to non-substitution of legal representatives of deceased respondent no.1
Previous Decisions
The trial court (Civil Judge, Senior Division, Panaji) passed an order holding that the suit stands abated
Issues
Whether the suit abates upon the death of one defendant when the cause of action survives against the remaining defendants?
Submissions/Arguments
Appellants argued that the suit was for declaration and injunction against multiple defendants and the cause of action was joint and several, hence the suit does not abate. Respondents supported the trial court's order.
Ratio Decidendi
Under Order 22 Rule 4 of the Code of Civil Procedure, 1908, a suit does not abate upon the death of one defendant if the cause of action survives against the remaining defendants. The suit for declaration and injunction against multiple defendants involves a joint and several cause of action, and the death of one defendant does not extinguish the right to proceed against others.
Judgment Excerpts
The suit does not abate upon the death of one defendant if the cause of action survives against the remaining defendants.
The learned Judge was not justified to pass the impugned order holding that the suit filed by the appellants stands abated.
Procedural History
The appellants filed a suit in the Civil Judge, Senior Division, Panaji. During pendency, respondent no.1 died. The trial court held the suit abated for non-substitution of legal representatives. The appellants filed First Appeal No. 60 of 2014 in the High Court of Bombay at Goa against that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 22 Rule 4
