2004 0 AIR(Kar)(R) 2600 ; 2004 0 AIR(SC) 3942 ; 2004 0 AIR(SCW) 4389 ; 2004 2 AllCJ 2070 ; 2004 6 ALT(SC) 43 ; 2004 2 ApexCJ(SC) 437 ; 2004 3 AWC 2598 ; 2004 4 BBCJ(SC) 137 ; 2004 3 CivCC 689 ; 2004 4 ICC 267 ; 2004 0 ILR(Kar) 4976 ; 2005 3 JCR(SC) 233 ; 2004 3 JLJR(SC) 314 ; 2004 6 JT 172 ; 2005 1 KarLJ 298 ; 2004 3 KLT(SN) 103 ; 2004 4 PLJR(SC) 47 ; 2004 3 RCR(Civ) 673 ; 2004 3 RLW(Raj) 459 ; 2004 6 Scale 373 ; 2004 7 SCC 354 ; 2004 0 SCR 222 ; 2004 6 Supreme 47 ; 2004 0 Supreme(SC) 776 ; 2004 2 WBLR 741 ; 2004 2 WLC 485

2004(6) Supreme 47
SUPREME COURT OF INDIA
(From Karnataka High Court)
S.B. Sinha & S.H. Kapadia, JJ.
Shahazada Bi & Ors. -Appellants
versus
Halimabi (since dead) by her Lrs. -Respondent
Civil Appeal No. 5507 of 1999
Decided on 30-7-2004
Counsel for the Parties :
For the Appellant : P.R. Ramasesh and Ms. Vandana Jain, Advocates.
For the Respondent : G.V. Chandra Sekhar and P.P. Singh, Advocates.

IMPORTANT POINT
If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party.

Civil Procedure Code, 1908-Order 22 Rule 4-Abatement of suit as against a deceased defendant-Suit for possession of seven rooms-Death of defendant 4 during pendency of suit-Trial Court decreed the suit against defendants 1 to 3 and dismissed the suit against defendant 4-Appeal-Lower Appellate Court dismissed the entire suit as having abated holding that plaintiffs were not entitled to recover possession of seven rooms from defendants 1 to 3 alone-Second Appeal-High Court restored decree of trial Court holding that each of the defendants was in separate independent possession of each of the rooms, reliefs prayed for were divisible and decree was enforceable separately against each of the defendants-Whether judgment of High Court was sustainable-(Yes).

       Held : As stated above, the plaintiffs instituted the suit inter alia for recovery of possession of seven rooms more particularly described in schedule B to the plaint. Schedule B gave detailed description of the suit property. Each of the seven rooms has been marked on the sketch tendered in evidence as B1 to B7. In the plaint, the original plaintiffs separately mentioned the rooms in possession of each of the defendants vide paragraph No. 5. They gave a separate schedule to the plaint, which described the rooms in possession of each of the above defendants. Schedule B also gave the dimension of each room. Further, plaintiffs sought possession of each of the rooms separately from each of the defendants vide paragraph No 11 read with schedule B to the plaint. In the evidence, plaintiffs produced and proved the map (Ex.P8) based on the description of the seven rooms which tallied with the description in schedule B . Further, the defendants herein alleged that they were in possession of the seven rooms with consent of Essanullah. In the suit, the defendants further contended that they had perfected their title in respect of each of the seven rooms by adverse title. The most clinching fact was that defendant No.4 had died during the pendency of the suit. Defendant No.4 was in possession of a room leased out to defendant No.5 for rent. Taking into account the above circumstances, the trial Court was right in holding that the suit against defendant No.4 alone stood dismissed as abated. The trial Court was, therefore, right in decreeing the suit of the plaintiffs as prayed for only against defendants No.1 to 3. Order 22 Rule 4 CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. What was the interest of the deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party. (Para 9)

       In the present case, the 4th defendant was found by the trial Court to be in possession of one of seven rooms. He had let it out on rent to defendant No.5. The trial Court on evidence found that Ex.P8 showed different rooms to be in possession of different defendants who claimed to be tenants-in-common in possession of each of the seven rooms. They claimed to have perfected their title by adverse possession to each of the seven rooms. There was no challenge to Ex.P8 in evidence. Nor was there any challenge to description of the suit property in schedule A and schedule B . (Para 10)

       

Act Referred :
CIVIL PROCEDURE CODE : O.22 R.4

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