What is abatement of proceeding as per CPC?

 Abatement of proceedings in Indian law refers to the automatic termination or suspension of a legal proceeding due to specific events affecting the parties involved. It is governed primarily by Order XXII of the Code of Civil Procedure, 1908.

Definition and Scope

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Whether motor accident claim petition will be abated if legal representatives of driver-cum-owner are not brought on record?

Learned counsel for the appellant-insurer argued that the claim petition has abated in view of the death of the driver-cum-owner, who came to be deleted from the array of respondents vide order, dated 2nd December, 2006, and his legal representatives have not been brought on record. The argument is misconceived and devoid of any force for the following reasons: {Para 18}

21. These provisions of law provide that the mandate of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") is not applicable in such cases. It is for the Tribunal to decide the cases, as early as possible.

22. The Apex Court and other High Courts have held that the Courts should not succumb to the procedural wrangles and tangles, hyper technicalities and mystic maybes and that should not be a ground to dismiss the claim petition and to defeat the rights of the claimants.

24. The High Court of Rajasthan in the judgment delivered in a case titled as Shiv Chandra and another versus Jasvinder Singh and others, reported in MANU/RH/0106/1991 : 1992 ACJ 747, has discussed the provisions of law and the Rules, which were applicable in the State of Rajasthan and held that the appeal had not abated on the failure to bring the legal representatives of the deceased owner on record.

25. The Delhi High Court in a recent judgment in the case titled as Oriental Insurance Co. Ltd. versus Biro Devi and others, reported in MANU/DE/0098/2014 : 2015 ACJ 340, has also discussed the provisions of Section 169 of the MV Act and the Rules applicable and held that the death of the owner of the vehicle is not a ground for evading the liability and it has no legal significance in the contractual relationship between the insurer and insured for the purpose of fastening the liability.

28. This Rule provides which of the provisions of the CPC are applicable. Order XXII of the CPC deals with abatement and the provisions of said Order have not been made applicable. Only on this count, the argument of the learned counsel for the appellant merits to be turned down.

29. Chapter XII of the MV Act is a complete code and provides the mechanism how to determine the claim petitions and appeals. Section 155 of the MV Act provides what is the effect of death of the insured on cause of action. It specifically provides that Section 306 of the Indian Succession Act, 1925 (39 of 1925) cannot affect the claim petitions or appeals if the insured has died after the happening of the event.

30. It is apt to reproduce Section 155 of the MV Act herein:

"155. Effect of death on certain causes of action. - Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been insured, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer."

 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

FAO No. 17 of 2008

Decided On: 20.03.2015

United India Insurance Company Limited Vs. Brijbala and Ors.

Hon'ble Judges/Coram:

Mansoor Ahmad Mir, C.J.

Author: Mansoor Ahmad Mir, C.J.

Citation: MANU/HP/0132/2015,2016 ACJ 1554 (HP).

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Whether suit got abated against all the plaintiffs when suit is abated against one of the plaintiff in the joint claim?

  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:

(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 subrule

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.{Para 8}

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.7145 OF 2022

SIRAVARAPU APPA RAO & ORS. Vs DOKALA APPA RAO 

Dated: OCTOBER 11, 2022.

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Whether the court should order the abatement of a suit if the plaintiff fails to implead some of the legal heirs of deceased defendants?

In Daya Ram v. Shyam Sundari MANU/SC/0298/1964 : AIR 1965 SC 1049, the appellant had impleaded the heirs of the deceased respondent so far as known to him but had omitted to bring on record some of the heirs. Their details were unavailable with him. The question was about the effect of the appellant's having omitted to include two of the legal heirs, a son and a daughter, who admittedly had an interest in the property. The omission was brought to the court's notice before the could be heard.

74. Noting the impact of Order 22, Rule 4 of CPC, Daya Ram has observed that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal. It has ruled that if the impleaded legal representatives sufficiently represent the estate of the deceased, a decision obtained with them on record will bind not merely those persons impleaded but the entire estate including those not brought on record. So if one of the legal heirs is on record, the appeal or suit would not abate.

75. Then, Daya Ram answered another question. It concerns the effect of omission to include all the known legal heirs, who, admittedly, had an interest in the property, despite the plaintiff's knowing about it. It has answered this query by holding that "there would be no abatement of the suit or appeal if the estate of the deceased is sufficiently represented. It has, however, gone ahead and held that "once it is brought to the notice of the Court hearing the appeal that some of the legal heirs of the deceased have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring others on record, so that the appeal could be properly constituted." In other words, if the appellant should succeed in the appeal, it would be necessary for him to bring on record those representatives whom he had omitted to implead originally.

76. In Parvez Rustom Nekoo, this Court has relied on Daya Ram and then held that once some of the legal heirs of the deceased are brought on record, the proceeding does not abate. "[B]ut once the petitioner is put on notice with respect to the omission on his part to implead other legal heirs, in that event, it is obligatory on his part to bring the left-out legal heirs on record." It has also observed that "[i]t is not open for any litigant who has the knowledge of other legal heirs to contend that one of the legal heirs is on record and therefore, proceeding does not abate. All known legal heirs must be brought on record."

77. If we trace back the roots of the case, the present tenants' common ancestor was the tenant, as was the present owners' common ancestor was the landlord. After their death, the families spread. What was leased out is a business structure: two rooms. In about six or seven decades, neither family remained constant. And the available tenants have been brought on record. They are tenants by operation of law; they have no independent right. So one represents another unless that another establishes there is a conflict of interest among them. Here a couple of children of one of the deceased co-tenants not being impleaded, I am afraid, cannot be fatal.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 497 of 2016

Decided On: 06.09.2019

Rukminibai Motiram Kshirsagar  Vs.  Manoramabai Mallikarjun Bagale

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: 2020(2) MHLJ 756,MANU/MH/2504/2019

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Whether plaint in eviction suit against the tenant is liable to be rejected on that previous suit on the same cause of action was abated?

As regards the question of abatement, the cause of action of the

present suit arises primarily from the notice to quit given by the

plaintiff/opposite party in the year 2012, which is subsequent to the abatement of the previous suit. In view of the observations made above, the trial court was justified in refusing to reject the plaint of the opposite party.Accordingly, the revisional application bearing C.O. 1082 of 2019 is dismissed.

 High Court at Calcutta

Civil Revisional Jurisdiction

C.O. 1082 of 2019

Jharna Ghosh Vs Debibrata Chattopadhyay

Dated: 5- 4 - 2019

Citation: AIR 2020(NOC) 51 Cal

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Whether proceeding will abate if some of legal heirs of deceased landlord are not brought on record?

 It may be seen that this was a suit by a landlord seeking eviction of the respondent No. 1. It is well settled that even one of the landlords is competent to take proceedings on behalf of the body of the landlords. In this view of the matter, the reasoning adopted by the District Court in coming to the conclusion that the suit had abated is not sustainable. Thus in Smt. Kanta Goel v. B.P. Pathak, 1977(2) RCR 103 (Delhi): AIR 1977 Supreme Court 1599, it was laid down that where a landlord who had let out his premises to a tenant, dies and his heirs succeed to his estate, one co-heir to whom the rent is being paid by the tenant and who receives it on behalf of the estate, would be landlord for the purposes of the Delhi Rent Control Act, 1958. It was further observed that a co-heirs constituted the body of landlords and, by consent, implicit or otherwise of the plurality of landlords, one of them representing them all, is entitled to institute proceedings for eviction against the tenant.

4. On an earlier decision given in the case of Sri Ram Pasricha v. Jagannath and others, AIR 1976 Supreme Court 2335 wherein similar opinion was expressed. In view of the aforementioned authorities, the conclusion is inescapable that one of the landlords could pursue the suit. Accordingly, the order passed by the Additional Judge to the Court of District Judge, Guna holding that the suit had abated is set aside 

IN THE HIGH COURT OF MADHYA PRADESH

Writ Petition No. 1168 of 1991

Decided On: 08.08.1994

 Abdul Hai  Vs. Abdul Sattar

Hon'ble Judges/Coram:

T.S. Doabia, J.

Citation: 1995(1) RCR 49

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Whether third party can file application for adding them as party in abated proceeding?

From the bare reading of the said provision, it clearly transpires that when the sole plaintiff (sole appellant in the instant case) dies and the right to sue survives, the Court on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made the party and proceed with the suit (appeal in the instant case), however, within the time limit, no application is made, the suit (appeal) would abate. The Supreme Court in the case of Mithailal Dalsangar Singh & Ors. v. Annabai Devram Kini & Ors., reported in MANU/SC/0722/2003 : (2003) 10 SCC 691 has also held inter alia that the abatement of the suit for failure to move an application for bringing the legal heirs on record within the prescribed period of limitation is automatic and a specific order dismissing the suit/appeal as abated is not called for. In the instant case also, the sole appellant Kantaben having expired, and her legal heirs having not made any application within the prescribed time limit for substituting them in place of the original appellant/petitioner, the Special Civil Application and the First Appeal had stood abated by the operation of law of limitation. Hence, the question that falls for consideration before this Court is, as to whether the third party applicants could file the application in the abated proceedings for joining the legal heirs of the deceased Kantaben as the respondent Nos. 1/1 to 1/3 in Civil Application No. 10253 of 2014 filed in Special Civil Application No. 5411 of 2008 and in Civil Application No. 10254 of 2015 in First Appeal No. 1589 of 2011.

15. It is pertinent to note that neither the legal heirs of the deceased appellant/petitioner Kantaben nor the respondents in the First Appeal and the Special Civil Application have filed any application for substituting the legal heirs of the deceased Kantaben in the First Appeal or Special Civil Application. The applications have been filed by the third party applicants for joining the legal heirs of the said deceased Kantaben in the applications filed by them for impleading/transposing them as the appellants/petitioners in the First Appeal and Special Civil Application. The applicants having still not been joined or impleaded either in the First Appeal or Special Civil Application, they could not be said to have any locus standi to file application for bringing the legal heirs of the deceased Kantaben on record of the proceedings which have already stood abated. None of the parties have filed any application for setting aside of the abatement also. As stated herein above, the said First Appeal and the Special Civil Application having already stood abated, such applications at the instance of the third party applicants in the abated proceedings would not be maintainable either under Order I Rule 10 or under Order XXII Rule 3 or under Order XXII Rule 10 of CPC. The alternative submission of Sr. Advocate Mr. Mehta to permit the applicants to prosecute the First Appeal and the Special Civil Application also could not be accepted. The applications filed by the third party applicants for joining them as the appellants/petitioners could be heard and decided in the pending proceedings and not in the proceedings, which have already stood abated. They may take recourse to other remedy as may be permissible under the law.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Civil Application (for Bringing Heirs) No. 9970 of 2017 in Civil Application No. 10253 of 2014 in Special Civil Application No. 5411 of 2008, 

Decided On: 05.09.2017

Mahendrasinh Jorubha Zala  Vs. Kantaben Shrikrishna Agrawal

Hon'ble Judges/Coram:

Bela M. Trivedi, J.

Citation: AIR 2019(NOC) 748 Guj

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Whether appeal is maintainable if suit is dismissed against one defendant as abated?

 Order-XLIII, Rule 1(k) of the Code provides an appeal against an order refusing to set aside the abatement or dismissal of a suit. The term "dismissal of a suit" has to be read along with the other references of proceedings in Rule 1(k), and it is clear that appeal under this provision lies against dismissal of a suit under Order-XXII, Rule 9 of the Code. By rejecting the application [Exh. No. 32], the trial Court, in effect, dismissed the suit against defendant no. 1 and this aspect is rightly considered by the learned Principal District Judge in paragraph 11 of the impugned judgment. Learned Principal District Judge has recorded that the effect of abatement of Civil Suit against defendant no. 1 is that the entire suit would go, as defendant no. 1 was a necessary party to the Civil Suit. It is a settled principle that while interpreting the enabling provisions of the statute which confer substantive rights on the parties, the Court should not give restrictive meaning to the provisions and a wide meaning should be given to it. While considering the legality of the impugned order, the superior Court should not read the impugned order in its literal sense, but, the effect of that order should also be considered. Keeping these principles in mind, it has to be held that the appeal filed by the respondent no. 1 against the order passed by the trial Court on the application [Exh. No. 32] was maintainable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 685 of 2017

Decided On: 07.06.2019

 Bharat Gangabisan Kalantri  Vs.  Sanjay Chandrakant 

Hon'ble Judges/Coram:

Z.A. Haq, J.

Citation: 2019(6) MHLJ 924

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Whether partition suit filed on behalf of minor will abate on his death?

 It remains to consider one other argument advanced on behalf of the appellants. It was urged that the cause of action for a suit for partition by a minor was one personal to him, and that on his death before hearing, the suit must abate on the principle of the maxim, action personal is moritur cum persona, But that maxim has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for property, the rule in question has no application to it. That was the view taken in Rangasayi v. Nagarathnamma [1933] I.L.R. 57 Mad. 95 at pp. 137-138 and in Mandliprasad v. Ramcharanlal I.L.R. [1947] Nag. 848 at p. 871, and we are in agreement with it.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 326 of 1955

Decided On: 04.09.1958

Kakumanu Peda Subbayya  Vs. Kakumanu Akkamma 

Hon'ble Judges/Coram:

A.K. Sarkar, P.B. Gajendragadkar and T.L. Venkatarama Aiyyar, JJ.

Author:T.L. Venkatarama Aiyyar, J.

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Whether representative suit abate on death of one of plaintiff?

The last two points may be shortly disposed of as they have to be stated merely to be rejected. Point No. (2) was eventually given up as it was completely devoid of substance. Since the suit had been filed in a representative capacity, it is clear that on the death of one of the plaintiffs it did not abate. In Raja Anand Rao v. Ramdas Daduram and Ors. 48 I.A.R. 12 it has been said Lord Dunadin at page 16" There was also a point that the person who originally raised the suit and got the sanction having died the suit could not go on, but there does not seem any force in that point either, it being a suit which is not prosecuted by individuals for their own interests, but as representatives of the general public. It is plain that the second appeal did not lose its competency on the death of one of the plaintiffs appellants. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 505 of 1974

Decided On: 17.12.1974

Charan Singh  Vs. Darshan Singh and Ors.

Hon'ble Judges/Coram:

K.K. Mathew, N.L. Untwalia and P.N. Bhagwati, JJ.

Citation : AIR 1975 SC 371

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Whether decree granted in favour of landlord should be set aside on ground of subsequent event?

 The courts below have appreciated the evidence and

concluded on facts that the owners have an expanded family, and their

needs are genuine. It is impermissible for this Court to disturb those

findings of facts in its revisional jurisdiction. The owners, besides

denying these allegations, have contended that all these developments

were said to have taken place when the appeal was pending. But the

tenants did not bring them to that court’s notice. The issue of the

locked rooms had been concurrently rejected by the courts below.

According to them, these pleas are part of the tenants’ delaying

techniques.

62. The alleged later developments, I must note, have not been,

first, properly brought on record—at an appropriate time. Second, at

this stage they cannot be considered; third, there is no clinching

evidence to establish these allegations.

(f) Two of the Owners’ Family Getting Employment:

63. Indeed, the tenants have made heavy weather of this issue.

Indeed, two of the many children in the owners’ family secured

employment. They are many other children, either unemployed or

doing petty businesses. Let us not forget the owners initiated the

eviction proceedings in 1986—over thirty years ago. In this period

someone may be born, brought, and employed. And the one who was

getting educated then, may get employed, and retired. And the one

who was employed then may retire and die away, too.

64. In Dickensian diction, innumerable children may have been

born into the cause; innumerable young people may have married into

it; innumerable old people may have died out of it. The little of the

plaintiffs may have been promised a new toy cycle when the case is

settled, but may have grown up pending the case, possessed a real cycle,

ridden it through his life, and ridden away into the other world. A case

can be perennial but not the life, nor its needs. As it were, courts have

time machines, for cases remain constant decades on end. But not the

clients or causes.

65. True, two of the many children have secured employment.

But that is hardly surprising in three decades and three years. That has

not taken away the owners’ need completely. That development has not

eclipsed their need, so to say.

Suppression of Facts:

66. The tenants have contended that two of the owners’ children

got employment, perhaps, pending the appeal. It was not brought to

the Appellate Court’s notice. It is suppression. At least, the tenants

assert so.

67. S. P. Chengalraya Naidu is the oft-quoted judgment on fraud

and its ramification in the judicial arena. It invokes Chief Justice

Edward Coke’s aphoristic assertion that “Fraud avoids all judicial acts,

ecclesiastical or temporal”. It reiterates that a judgment or decree

obtained by playing fraud on the court is a nullity and non est in the

eyes of the law.

68. As a general rule, suppression of a material fact by a litigant,

according to the Supreme Court[15], disqualifies such litigant from

obtaining any relief. This rule has been evolved out of the need of the

Courts to deter a litigant from abusing the process of Court by

deceiving it. But the suppressed fact must be a material one in the sense

that had it not been suppressed it would have affected the merits of the

case. It must be a matter material for the consideration of the Court,

whatever view the Court may have taken.

69. The owners have a counter allegation: the tenants have

business at another place, too. But they suppressed that fact.

70. At any rate, I see no plea taken in the CA about the

suppression of a material fact: two of the children getting employment.

But it was argued. I reckon among the many children of the owners,

two getting employment in thirty years hardly affects their case

prospects. Nor does it amount to a material suppression.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.497 OF 2016

Smt. Rukminibai Motiram Kshirsagar v/s.  Smt. Manoramabai Mallikarjun Bagale

CORAM : DAMA SESHADRI NAIDU, J.

PRONOUNCED ON: 6th September 2019

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Whether Injunction decree will survive to legal heirs of deceased plaintiff?

Therefore, the question in this second appeal is whether the injunction obtained by the plaintiff against the defendants would be rendered nugatory on the death of the plaintiff.

8. There is a distinction between the death of the plaintiff and the death of the defendant. The injunction is operative against the defendants. In fact, the model form of prayers in many suits for injunction would be "restraining the defendants or his men or servants or agents or anybody claiming under or through him". Therefore, on the death of the defendant, all these persons would vanish. Consequently, the question of binding the L.Rs of the defendant by such injunction would not arise. But this will not be the case, if the plaintiff who seeks injunction dies, A decree for injunction obtained by the plaintiff can be succeeded to by his L.Rs and such a right of injunction does not die with the plaintiff. I am fortified in my view by the dictum rendered by the High Court of Allahabad in Krishna Behari Goel v Raj Mangal Persad and Others, which is in the following passage:

"(5) The suit was not of a personal nature at all. Sukhu did not claim any personal right. The injunction sought was that the applicant should not interfere with his possession over the property in dispute. A suit claiming injunction of this nature did not abate on the death of the plaintiff. The cause of action survived to his legal representative who came in possession of the property in dispute".

This position stands further clarified by the leading case of Penn v Lord Baltimore, wherein Lord Chancellor Hardwicke stated in effect as follows:

"The strict primary decree in this Court, as a Court of Equity, is in personam, .....until the defendant do comply with the order of judgment of the Court, which is against himself the defendant personally to do or cause to be done or to abstain from doing some act".

The italicized portion indicates that it is a personal against the defendant against whom injunction is sought for. Therefore, the decree of injunction would become infructuous on the death of the defendant or the party against whom injunction is granted. The person who gets an injunction were to die, certainly his L.Rs will be entitled to the benefit of the decree.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Regular Second Appeal No. 132 of 1993

Decided On: 12.01.1998

Venkubai  Vs The Assistant Commissioner, Sedam, Gulbarga District and Ors.

Hon'ble Judges/Coram:

T.N. Vallinayagam, J.

Citation: 1999(1) Civil Court Cases 119 Kant

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Whether suit filed by trust will abate if legal heirs of trustees are not brought on record?

 However, the Division Bench in Letters Patent Appeal held that "It would, therefore, appear that it is well settled that Order 22, Rule 3 of the Code applies to cases where the plaintiff leaves behind the estate which could be inherited by his heirs or successors and if they are brought on record, then the provisions of Order 22, Rule 3 will apply. However, the case would be different where the suit is brought by the plaintiff not in his personal capacity but in his representative capacity as a trustee or otherwise. In that case when he dies, his own legal representatives would not automatically become trustees and would not be legal representatives within the meaning of Clause (11) of section 2 of the Code. Only those trustees who are elected or appointed under the scheme of the trust can step in his shoes and continue the suit. Such a new trustee could not by any stretch of imagination be said to be legal representatives of the deceased trustee. In any case, the right of the deceased plaintiff to act as a trustee would not pass on to the new trustee on the death of the deceased trustee. The new trustee would get his right not by virtue of death of the previous trustee but because of his being elected or appointed as a trustee under the scheme of the trust... Now obviously such a case will not be covered by Order 22, Rule 3, which contemplated the legal representatives of the deceased plaintiff being brought on record. Since the new trustee would not be a legal representative of the deceased trustee, in that sense there is no question of the new trustee applying for being brought on record under the provisions of Order 22, Rule 3 of the Code. Obviously such a case would be covered by Rule 10 of Order 22 of the Code." It was further held that unlike Rule 3 of Order 22, no limitation is prescribed for presentation of application under Rule 10 and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant devolves and hence the right to make an application under the latter rule is right which accrues from day to day and can be made at any time during the pendency of the suit and there is no abatement under that rule. Considering the ratio of this judgment, it is clear that in the present case, the provisions of Order XXII, Rule 10 shall be attracted and, therefore, even though application was made for substitution after 9 months (though the learned Judge wrongly observed as one year and 3 months), there can be no abatement. It is not the case where the legal representatives of the deceased respondent No. 4 are to be brought on record but the trustee who is recognised by the Charity Commissioner is to be brought on record. This would happen not only in the case of death but even in the case of retirement or resignation of the trustee. In all these cases, substitution is required to be made and which can only be made under Order XXII, Rule 10. Hence, in my opinion, the learned Judge was not right in holding that the suit abated. 

IN THE HIGH COURT OF BOMBAY

First Appeal No. 535 of 1975

Decided On: 22.02.1993

 Abaji Daulata Yadav  Vs. Dhondiram Jagedevrao Yadav and Ors.

Hon'ble Judges/Coram:

P.S. Patankar, J.

Citation: 1994(3) Bom CR 60, 1993 MHLJ 588

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Whether successor trustee should make application for bringing him on record within limitation?

However, even if it is assumed that the present case is governed by Order 22 Rule 10 of the Code, the question still remain, whether the application made by the new trustee would be governed by any period of limitation. Even though, Shri Kherdekar appearing for the respondents before the learned single Judge had submitted that such an application would be governed by Article 181 of the Indian Limitation Act, 1908, he has very fairly conceded before us that such an application would not be governed by any period of limitation, It is not, therefore, necessary to decide this point in this appeal. However, in Baijnath Ram v. Mt. Tunkowati MANU/BH/0076/1962 : AIR1962Pat285 Full Bench of the Patna High Court held that unlike Rules 3 and 4, of O.22, no limitation is prescribed for presentation of an application under Order 22 Rule 10, and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant has devolved and hence the right to make an application under the latter rule is a right which accrues from day to day and can be made at any time during the pendency of a suit and there is no abatement under that rule. A similar view has been taken by a Single Judge of the erstwhile Nagpur High Court in C. Wright Neville v. E. H. Freser MANU/NA/0101/1943. It would, therefore, appear that once It is held that the application is governed by O. 22 Rule 10 of the Code, then such an application could be made at any time during the pendency of the suit or appeal, but while granting leave to the applicant to proceed with the suit or appeal, the Court would consider the question on merits. However, the application cannot be thrown out simply because it is not made within a particular period,

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Letters Patent Appeal No. 7 of 1971

Decided On: 24.04.1978

 Sitabai Ramchandra Jaltare  Vs.  Masjid Nurun Mohalla Jingerwadi

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Whether legal heirs of trustees are to be brought on record on death of trustee if suit was brought on behalf of trust?

 The first question which falls for consideration is whether the application which was made by Adbul Majid before the learned District Judge was governed by Rule 3 of Order 22 as held by the learned District Judge or by Rule 10 of Order 22, as held by the learned Single Judge. Relying on certain decisions referred to by him in his judgment, the learned District Judge was of the view that Order 22 Rule 10 is a residuary rule governing only those cases which are not provided for by the preceding rules and where devolution takes place by reason of death, the matter falls under Rule 4 where the death is of the defendant and Rule 10 will have no application to such a case. The learned District Judge was of the view that Rule 10 is an enabling one but not a device intended to get over the laches of the parties bound to move under Rule 3 or Rule 4. It appears that the learned District Judge was of the view that Order 22 Rule 10 will not apply to a case where the plaintiff or defendant dies and the suit has to be continued by other persons. The learned District Judge was of the view that in case of death of the plaintiff or the defendant, as the case may be. the proper provision to be applied would be Rule 3 or R. 4 of O. 22 and not Rule 10. It was in this view of the matter that the learned District Judge held that the present case was governed by Order 22 Rule 3 of the Code and not by Order 22 Rule 10. Having held so, the learned District Judge further found that the legal representative of Awaliyabi should have been brought within 90 days from her death and since this has not been done, the appeal had abated.

7. As already seen the learned Single Judge differed from the learned District Judge with regard to the application of Order 22 Rule 3 to the present case. The learned Single Judge observed that Order 22 Rule 3 would apply only if on the death of the plaintiff the suit is to be continued by the legal representatives of the plaintiff but not to the case where the plaintiff was a trustee. According to him, on the death of the plaintiff, who filed the suit in his capacity as a trustee, or his resignation or otherwise ceasing to be trustee, the person, who could continue the suit would not be his personal legal representative but another trustee of the said trust. The learned single Judge observed that Awaliyabi had not filed the suit in her personal capacity and hence there could not be any question of her personal legal representatives continuing it and it could be continued by another representative of the trust, in our opinion, the view taken by the learned single Judge, with respect, appears to be laying down the law correctly in this respect. In Thirumalai v. Arunachella MANU/TN/0398/1925 : AIR1926Mad540 , the appeal was filed by nine trustees. But during the pendency of the appeal two of them died and one retired. It appears that an application was made for bringing on record the trustees who had been appointed in place of one of them who had expired and the other who had retired. This application had been filed beyond the period of 90 days from the death of one of trustees and from the date of retirement of the other. It was contended that the new trustees, who had been appointed in place of the above said two trustees were their legal representatives within the meaning of clause (11) of S. 2 of the Code and hence the application not being filed within the prescribed time, could not be entertained. On these facts it was held that the new trustees were not legal representatives of those who had died or retired and it was held that the application for bringing the new trustees on record would fall under Order 22 Rule 10, because the interest of the deceased trustees devolved on these persons by the act of the electors done in pursuance of the scheme framed by the Court and it was a case of devolution of interest during the pendency of the suit. In Keshab Rai v. Jyoti Prosad MANU/WB/0345/1932 : AIR1932Cal783 a Division Bench of the Calcutta High Court held that Rules 2, 3 and 4 of Order 22 of the Code relate to cases of devolution in interest on the death of a plaintiff or defendant when such plaintiff or defendant was suing or was being sued respectively in his personal capacity, that these rules do not apply when a suit is brought by or against a person in his representative character and to such a suit the provisions of Order 22 Rule 10 of the Code will be applicable. Again in Kishori Lal v. The Collector ILR (1955) All 128 a Division Bench of the Allahabad High Court held that Order 22 Rule 4 of the Code is applicable to those cases where a person who is brought on the record as legal representative inherits the property from the deceased party, but where a person is brought on the record as legal representative in order to represent an estate which was formerly represented in a suit by another person, Order 22 Rule 10 of the Code will apply. Lastly in Roshan Lal v. Kapur Chand MANU/PH/0085/1960 a Division Bench of the Punjab High Court has held that where a suit is brought by trustees and some of them die during the pendency of the suit, the new trustees can be added as parties under Order 22 Rule 10 of the Code and newly appointed trustees are not representatives of the deceased trustees within the meaning of Order 22 Rule 3. It would, therefore, appear that it is well settled that Order 22 Rule 3 of the Code applies to cases where the plaintiff leaves behind the estate which could be inherited by his heirs or successors and if they are brought on record, then the provisions of Order 22 Rule 3 will apply. However, the case would be different where the suit is brought by the plaintiff not in his personal capacity but in his representative capacity as a trustee or otherwise, in that case when he dies, his own legal representative would not automatically become trustees and would not be legal representatives within the meaning of Clause (11) of S. 2 of the Code. Only those trustees who are elected or appointed under the scheme of the trust can step in his shoes and continue the suit. Such a new trustee could not by any stretch of imagination be said to be legal representative of the deceased trustee. In any case, the right of the deceased plaintiff to act as a trustee would not pass on to the new trustee on the death of the deceased trustee. The new trustee would get his right not by virtue of death of the previous trustee but because of his being elected or appointed as a trustee under the scheme of the trust. Obviously, therefore, when a suit is filed by a person in his capacity as a trustee or representing a trust or any interest and if he dies, the suit can- not be continued by his own legal representatives but will have to be continued by another trustee or a person who is appointed or elected to manage the trust. In short, therefore, interest as a trustee will not devolve on a new trustee because of the death of the previous trustee but because of his being elected or appointed as such, Now obviously such a case will not be covered by Order 22 Rule 3, which contemplates the legal representatives of the deceased plaintiff being brought on record. Since the new trustee would not be a legal representative of the deceased trustee, in that sense there is no question of the new trustee applying for being brought on record under the provisions of Order 22 Rule 3 of the Code. Obviously such a case would be covered by Rule 10 of Order 22 of the Code, In this view of the matter, therefore, it is not possible to say that the conclusion to which the learned single Judge has arrived is not correct.

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Letters Patent Appeal No. 7 of 1971

Decided On: 24.04.1978

 Sitabai Ramchandra Jaltare  Vs.  Masjid Nurun Mohalla Jingerwadi

Hon'ble Judges/Coram:

M.D. Kambli and A.A. Ginwala, JJ.

Citation: 1978 MHLJ 789 bom

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Whether legal representatives of defendant who died prior to filing of suit can be added as party to suit?

As mentioned supra, it is only if a Defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the Code can be invoked. Since one of the Defendants i.e. Defendant No. 7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased Defendant No. 7 Under Order 1 Rule 10 of the Code, for the simple reason that the Plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the Plaintiff had known about the death of one of the Defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that the High Court experienced in granting the application filed by the Plaintiff Under Order 1 Rule 10 of the Code discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. As the heirs of the deceased Defendant No. 7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the Courts are meant to do substantial justice between the parties and that technical Rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice.

15. Having regard to the totality of the narration made supra, there is no bar for filing the application Under Order 1 Rule 10, even when the application Under Order 22 Rule 4 of the Code was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties Under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated Under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 15549 of 2017 (Arising out of SLP (C) No. 31212 of 2014)

Decided On: 03.10.2017

Pankajbhai Rameshbhai Zalavadia Vs. Jethabhai Kalabhai Zalavadiya (deceased) 

Hon'ble Judges/Coram:

Arun Mishra and Mohan M. Shantanagoudar, JJ.

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Whether introduction of Plaintiff or Defendant for one stage of suit was introduction for all stages?

I, however, find that the question raised is fully covered by the decision of the Privy Council in Brij Indar Singh v. Kanshi Ram ILR 1917 Cal 94 : AIR 1917 PC 156 wherein it was ruled that introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages, even it be made on an appeal from a mere interlocutory order. In that case legal representatives of the deceased party were substituted in an application for revision pending in the Chief Court against an order of the trial Court directing the parties to produce certain documents. No application was, however, made for substitution of the legal representatives of the deceased in the suit. In holding that the suit did not abate, their Lordships of the Judicial Committee observed as follows:

"The plaintiff as representative of the original plaintiff, and the defendant's representatives of Joti Lal, had been introduced in the Chief Court. No doubt that was only done in the course of an interlocutory application as to production of books. But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages and the prayer, which seems to have been made ob majorem cautelam by the plaintiff, in his application to the District Judge Prenter under Section 365, was superfluous and of no effect. Coates, the judgment-debtor was only formally called, and the non-presence of his representatives would afford no ground for the abatement of the suit."

5. Mr. R. P. Bali appearing for the respondent, has brought to my notice that their Lordships of the Supreme Court have, in Rangubai v. Sunderbai MANU/SC/0007/1965 : AIR 1965 SC 1794, accepted this as an authority for the proposition that if the legal representatives of the deceased plaintiff or defendant are brought on record in an appeal or revision within the prescribed time at one stage of the suit it will ensure for the benefit of all the subsequent stages of the suit, though they have ruled that the same principle cannot be invoked in the reverse case as a suit is not a continuation of an appeal and an order made in a suit subsequent to the filing of an appeal at an earlier stage cannot be projected backwards into the appeal that had already been filed.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revn. No. 260 of 1971

Decided On: 04.10.1972

 Harbans Lal Vs.Ved Parkash

Hon'ble Judges/Coram:

Gurdev Singh, J.

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Whether order bringing legal representatives on record would enure for subsequent stages of suit?

Let us now consider the question on principle. A combined reading of Order XXII, Rules 3, 4 and 11, of the Code of Civil Procedure shows that the doctrine of abatement applies equally to a suit as well as to an appeal. In the application of the said Rules 3 and 4 to an appeal, instead of "plaintiff" and "defendant", "appellant" and "respondent" have to be read in those rules. Prima facie, therefore, if a respondent dies and his legal representatives are not brought on record within the prescribed time, the appeal abates as against the respondent under r. 4, read with r. 11, of O. XXII of the Code of Civil Procedure. But there is another principle recognized by the Judicial Committee in the aforesaid decision which softens the rigour of this rule. The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit. The application of this principle to different situations will help to answer the problem presented in the present case. (1) A filed a suit against B for the recovery of possession and mesne profits. After the issues were framed, B died. At the stage of an interlocutory application for production of documents, the legal representatives of B were brought on record within the time prescribed. The order bringing them on record would enure for the benefit of the entire suit. (2) The suit was decreed and an appeal was filed in the High Court and was pending therein. The defendant died and his legal representatives were brought on record. The suit was subsequently remanded to the trial Court. The order bringing the legal representatives on record in the appeal would enure for the further stages of the suit. (3) An appeal was filed against an interlocutory order made in a suit. Pending the appeal the defendant died and his legal representatives were brought on record. The appeal was dismissed. The appeal being a continuation or a stage of the suit, the order bringing the legal representatives on record would enure for the subsequent stages of the suit. This would be so whether in the appeal the trial Court's order was confirmed, modified or reversed. In the above 3 illustrations one fact is common, namely, the order bringing on record the legal representatives was made at one stage of the suit, be it in the suit or in an appeal against the interlocutory order or final order made in the suit, for an appeal is only a continuation of the suit. Whether the appellant order confirms that of the first Court, modifies or reverses it, it replaces or substitutes the order appealed against. It takes its place in the suit and becomes a part of it. It is as it were the suit was brought to the appellate Court at one stage and the orders made therein were made in the suit itself. Therefore, that order enures for the subsequent stages of the suit.

13. But the same legal position cannot be invoked in the reverse or converse situation. A suit is not a continuation of an appeal. An order made in a suit subsequent to the filing of an appeal at an earlier stage will move forward with the subsequent stages of the suit or appeals taken therefrom; but it cannot be projected backwards into the appeal that has already been filed. It cannot possibly become an order in the appeal. Therefore, the order bringing the legal representatives of the 7th respondent on record in the final decree proceedings cannot enure for the benefit of the appeal filed against the preliminary decree. We, therefore, hold that the appeal abated so far as the 7th respondent was concerned.

IN THE SUPREME COURT OF INDIA

Civil Miscellaneous Petition Nos. 2402 of 1964

Decided On: 01.03.1965

Rangubai Kom Shankar Jagtap Vs.  Sunderabai Bhratar Sakharam Jedhe and Ors.

Hon'ble Judges/Coram:

J.C. Shah, K. Subba Rao and R.S. Bachawat, JJ.

Citation:(1966)1 SCA 29,68 BOM LR 26

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Whether suit or appeal will abate if all legal heirs are not brought on record?

When this provision speaks of "legal representatives" is it the intention of the legislature that unless each and every one of the legal representatives of the deceased defendants, where these are several is brought on record there is no proper constitution of the suit or appeal, with the result that the suit or appeal would abate ? The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the decease and the decision obtained with them on record will bind not merely those impleaded but the entire estate included those not brought on record. The principle of this rule of law was thus explained is an early decision of he Madras High Court in Kadir v. Muthukrishna Ayyar (1902) I.L.R. Mad. 230. The facts of that case were that when the defendant died the first defendant before the Court was impleaded as his legal representative. The impleaded person raised no objection that he was not the sole legal representative of the deceased defendant and that there were others who had also to be joined. In these circumstances, the Court observed :

"In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposed of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate ...... If this were not the law, it would in no few cases, be practically impossible be secure a complete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan Party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose by a person whose name is entered on the record in place of the deceased party under sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the legal representative."

15. This, in our opinion, correctly represents the law. It is unnecessary, here, to consider the question whether the same principle would apply when the person added is not the true legal representative at all. In a case where the person brought on record is a legal representative we consider that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 360 of 1962

Decided On: 08.09.1964

Daya Ram and Ors.Vs.Shyam Sundari

Hon'ble Judges/Coram:

P.B. Gajendragadkar, C.J., N. Rajagopala Ayyangar and J.C. Shah, JJ.

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Whether court can direct other defendant to furnish names and addresses of legal heirs of deceased defendant?

 Though on a strict construction of rule 10 A of order XXII of the Code, the obligation imposed on the pleader stands discharged on his informing the court about the death of the party but in my view in exceptional circumstances particularly when the litigants are not two private individuals but a public sector undertaking or a public body, which has no sure or prompt means to know the existence and particulars of legal representatives of the defendant, the court would have been within its jurisdiction to exercise its inherent power under section 151 of the Code and issue directions to the other defendants, who, in the present case, happened to be son and daughter-in-law of the deceased defendant, to furnish the names and addresses of the remaining legal representatives or heirs. 

Civil Procedure Code, 1908 - Section 151--Impleadment of legal representative--Powers of Court--In appropriate case, the Court may direct a party to furnish the names and addresses of legal representatives or heirs of the deceased.

IN THE HIGH COURT OF DELHI

IA No. 297/96, 2628/96 & 2629/96 in Suit No. 145/82

Decided On: 09.07.1998

State Bank of India Vs. Gobbs Kay India & Ors.

Hon'ble Judges/Coram:

D.K. Jain, J.

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