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2025 Supreme(Telangana) 22
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
LAXMI NARAYANA ALISHETTY, J.
Smt. Vazeer bee - Appellant
Versus
Sudarshan Raj Kapoor - Respondent
Civil Revision Petition No.1171 Of 2023
Decided On : 09-06-2025
Advocate Appeared:
For the Appellant : GANDYADAPU RAJESHAM
Death of one plaintiff does not abate suit if the right to sue survives to the remaining plaintiff, under CPC Order XXII Rules.
Headnote:(A) Civil Procedure Code - Order XXII Rules 1, 2, and 9 - Suit for perpetual injunction - Challenge to dismissal of application to dismiss suit as abated due to non-substitution of legal representatives of deceased plaintiff - Suit filed by multiple plaintiffs with joint cause of action. (Para 10)
(B) Legal Representation - The death of one plaintiff does not abate the suit if the right to sue survives to the surviving plaintiffs alone. (Paras 8 and 10)
Facts of the case:
Plaintiffs filed a suit for injunction regarding land jointly owned. Following the death of plaintiff No.1, an attempt to substitute legal heirs was made but later withdrawn. Defendants sought dismissal, arguing that the death of plaintiff No.1 abated the suit due to common cause of action. (Paras 4 and 7)
Findings of Court:
The trial Court held that the non-bringing in of LRs of deceased plaintiff did not abate the suit, and the suit scheduled property being combined, the right of plaintiff No.2 to sue does not survive. (Para 6, 15, and 17)
Issues: The primary issue addressed was whether the death of one plaintiff abates the suit filed for joint property and the implications of the substitution of legal representatives. (Paras 6 and 15)
Ratio Decidendi: The Court reasoned that since the cause of action was joint and the surviving plaintiff could pursue the claim, the non-substitution did not warrant abatement. The application was correctly dismissed per established legal principles. (Para 12 and 17)
Result: Revision Petition allowed, and the impugned order set aside.
| Table of Content |
|---|
| 1. factual basis for plaintiffs' claims and suit. (Para 1 , 3 , 4) |
| 2. application context and initial pleadings. (Para 2) |
| 3. arguments regarding abatement and joint ownership. (Para 5 , 7 , 8) |
| 4. court's reasoning on abatement and indivisibility. (Para 6 , 10 , 12 , 13 , 14 , 15) |
| 5. application of cpc rules on abatement. (Para 9 , 11) |
| 6. final ruling allowing the revision petition. (Para 16 , 17 , 18) |
ORDER :
LAXMI NARAYANA ALISHETTY, J.
Questioning the legality and validity of the order dated 13.03.2023 passed by VIII Additional District Judge, Ranga Reddy District at L.B. Nagar in IA.No.1 of 2023 in OS.No.602 of 2014, the present Revision Petition is filed.
2. Heard Sri G.Rajesham, learned counsel for revision petitioners, and Sri Bankatlal Mandhani, learned counsel for the respondents.
3. The petitioners are defendants and the respondents are plaintiffs in the suit. For convenience, hereinafter the parties will be referred to as arrayed they are in the suit.
4. In nut-shell, the facts of the case shorn off unnecessary details are that plaintiffs filed the aforesaid suit for perpetual injunction against the defendants in respect of the suit schedule property, i.e., land admeasuring Acs.21.24 guntas in Sy.No.21 and land admeasuring Acs.21.04 guntas in Sy.No.22, total admeasuring Acs.42.28 guntas situated at Porandla Village, Maheshwaram Mandal, Ranga Reddy District. It was averred in the plaint that plaintiff No.1 purchased land admeasuring Acs.21.24 guntas vide sale deed bearing document No.1312/1984 dated 06.11.1984 and plaintiff No.2 purchased land admeasuring Acs.21.04 guntas vide sale deed bearing document No.1313/1984 dated 06.11.1984. Both the plaintiffs filed the suit alleging interference by the defendants with the suit schedule property. During the pendency of the suit, plaintiff No.1 died on 18.02.2019 leaving behind Anju Kapoor, Shilpa Baijal, Swathi Makhija and Shikha Kapoor as his legal heirs. While so, plaintiff No.1 filed an application in IA.No.539 of 2020 praying to bring himself as legal representative of the deceased plaintiff No.1 in the suit, basing on Will dated 16.02.2019, as per which, the land belonging to plaintiff No.1 was bequeathed to plaintiff No.2 and that the amounts lying in the Savings Bank Account and Fixed Deposits were given to his wife- Anju Kapoor and daughter –Shilpa Baijal. However, it appears that the said application was withdrawn by plaintiff No.2.
4.1. Subsequently, the defendants filed the application in IA.No.1 of 2023 under Order XXII Rule 9 CPC praying the Court to dismiss the suit as abated since no cause of action survives in the suit. In the affidavit filed in support of the application, it was averred that plaintiff Nos.1 and 2 filed suit for perpetual injunction restraining the defendants from interfering with the suit schedule property and that though the plaintiffs purchased the suit schedule property under two different sale deeds, since the cause of action for both the plaintiffs arose on the same day, the entire suit is abated in view of non-bringing of LRs of deceased-plaintiff No.1 on record and further, as no decree can be passed partially in favour of plaintiff No.2 and thus, prayed to dismiss the suit as abated since the same is not maintainable.
5. Plaintiff No.2 filed counter resisting the application and contended that though cause of action and the relief claimed in the suit are joint, he has been advised that the suit will not be abated for non-substitution of LRs of deceased-plaintiff No.1. He further contended that the application for substitution basing on the Will should be allowed leaving the question of validity and genuinity of the Will open, by relying upon the judgment of the Hon'ble Apex Court in Atma S.Barar Vs.Mukhtiar Singh , [2003(9) SCC 624]
6. The trial Court, considering the pleadings of both the parties and the arguments advanced on their behalf, dismissed the application vide the impugned order dated 13.03.2023, with an observation that
