Where the right to sue survives to surviving co-plaintiffs alone, substitution under Rule 3 is unnecessary.

Appellants Nos. 5 and 6 and Lalji Shah were co-plaintiffs in Civil Suit No. 202-A/2015, seeking declaration of title, cancellation of sale deeds dated 10 May 1964 and 29 June 1977, and permanent injunction.

Lalji Shah died on 29 July 2013. Appellants Nos. 1 to 4, claiming to be his legal representatives, asserted that an application under Order XXII Rule 3 CPC had been presented on 29 October 2013, but did not form part of the record; a further application under Section 151 CPC was filed on 19 July 2016.

The trial Court rejected the application on 10 October 2018, holding that the appropriate provision for bringing legal representatives on record was Order XXII Rule 3 CPC.

The First Appellate Court dismissed the appellants’ appeal on 26 September 2024, holding that the trial Court’s order was neither a decree appealable under Section 96 CPC nor an order appealable under Section 104 read with Order XLIII Rule 1 CPC.

The appellants thereafter filed the present Miscellaneous Appeal under Order XLIII Rule 1(t) CPC.

Whether the appeal filed under Order XLIII Rule 1(t) CPC against the First Appellate Court’s judgment was maintainable.

Whether, upon the death of one of several co-plaintiffs, the matter was governed by Order XXII Rule 2 CPC—where the right to sue survives to the surviving plaintiffs—or by Order XXII Rule 3 CPC, requiring substitution of the deceased plaintiff’s legal representatives.

Whether the surviving plaintiffs could be non-suited merely because the deceased co-plaintiff’s legal representatives had not been brought on record under Order XXII Rule 3 CPC.

Order XXII Rule 1 CPC provides that the death of a party does not cause abatement where the right to sue survives; Rule 2 applies where, upon the death of one of several plaintiffs or defendants, the right to sue survives to the remaining parties alone, in which event the Court is required to make an entry on the record and the suit proceeds without formal substitution.

Order XXII Rule 3 applies where the right to sue does not survive to the surviving plaintiffs alone and the legal representatives of the deceased plaintiff must be brought on record.

The Court relied on Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272, for the principle that procedural provisions should facilitate adjudication on merits and should not unnecessarily defeat substantive rights.

It also relied on Mangluram Dewangan v. Surendra Singh, (2011) 12 SCC 773, which distinguishes between an order merely rejecting an application to bring legal representatives on record and an order determining that the right to sue itself does not survive; only the latter may amount to a decree.

Order XLIII Rule 1(t) CPC permits an appeal only against an order refusing to readmit an appeal dismissed for default or refusing to rehear an appeal, and does not cover the impugned judgment.

The High Court held that the present appeal was not maintainable because the impugned First Appellate Court judgment was not an order falling within Order XLIII Rule 1(t) CPC.

However, on the underlying question concerning the deceased co-plaintiff, the Court found that the matter could not automatically be treated as one under Order XXII Rule 3 merely because the appellants had sought substitution.

Appellants Nos. 5 and 6, the surviving plaintiffs, remained on record and continued to prosecute the suit, while neither the trial Court nor the First Appellate Court had determined that the right to sue had come to an end or that the suit had abated.

Therefore, the trial Court was required first to examine whether the conditions of Order XXII Rule 2 were satisfied, namely, whether the entire right to sue survived to the surviving plaintiffs.

If so, formal substitution under Rule 3 and any question of abatement would not arise.

The dismissal was not to prevent the appellants from seeking appropriate consideration by the trial Court of the applicability of Order XXII Rule 2 CPC.

The trial Court was directed to examine the question of survivability of the right to sue in light of the pleadings and the nature of the rights claimed, without treating the High Court’s observations as a final determination on title or other substantive rights.