Under Order 22 Rule 1 CPC, No suit shall be abated upon the death of the parties when the right to sue still survives. The Limitation Act, 1963 prescribes time limit to take steps to bring on the Legal Representatives of the deceased as 90 days days from the date of the death of the deceased. (Article 120)
Abatement meaning:-
When an interruption[1] is made to suit by way creation, transfer or devolution of interest in the nature of property[2] then, the plaintiff or the appellant is prevented from moving forward with the case. Such an interruption is called Abatement.
The term abatement do not have any definition under the code. General meaning of the term abate means to reduce or to nullify. The term abatement derived its meaning from the French word which means to decrease or to reduce. In case of a civil suit, the term abatement means preventing a Plaintiff from moving forward with the case. Hence in such cases where the Plaintiff or Appellant is barred from moving forward, the suit or appeal shall stand abated or dismissed. Hence the Plaintiff or the Appellant has to take necessary Steps under Order 22 to bring on the LRs within the time limit Prescribed.
Procedure in case of death of Plaintiff or the appellant
Application under order 22 Rule 3 (1) shall be filed to bring on the LRs of the Plaintiff:-
One of the Plaintiff or the Sole Plaintiff on whom the right to sue survives, dies during the pendency of the suit. Then on an Application made on that behalf and LRs of the deceased can be added as party to the suit à Suit shall be proceeded. (Order 22 Rule 3 (1))
To bring on the LRs of the Plaintiff or the appellant, steps has to be taken under Order 22 Rule 3 (1) within the period of 90 days.
Such an Application shall be accompanied with an affidavit. That affidavit can be sworn be either existing Plaintiff or the Appellant or the Proposed Plaintiff or the Appellant.
Each page of the affidavit shall be duly signed by the Deponent and the Petition shall be signed by the Advocate for the Applicant. Sufficient Court Fee has to be affixed along with the Petition.
Since the burden of proof lies on the Petitioner or the Applicant, the petition under Order 22 Rule 3(1) shall enclose the Death Certificate and the Legal Heir Certificate of the deceased.
A simple draft of Order 22 Rule 3 Petition is attached below for your reference:-
When such an Application is not filed within 90 days then the Defendant may apply for Dismissal order 22 Rule 3 (2)
One of the Plaintiff or the Sole Plaintiff on whom the right to sue survives, dies during the pendency of the suit. Within the limitation period Plaintiff didn’t file an Application to bring the LRs of the deceased, the suit shall be stand abated. On such circumstances the defendant may file an Application under this rule to the court for dismissal of the suit on the ground of Abatement. The costs incurred in defending the suit may be awarded to the defendant from the estate of the deceased plaintiff. (Order 22 Rule 3 (2))
A simple draft of Order 22 Rule 3(2) – Dismissal Petition is attached below for your reference:-
Procedure in case of death of the Defendant
To bring on the LRs of the Defendant or the Respondent, the Plaintiff or the Appellant has to steps has to be taken under Order 22 Rule 4 within the period of 90 days.
When right to sue survives on one or more Defendants or the sole Defendant, when such person dies during the Pendency of the suit, then an Application can be filed by the plaintiff to add the LRs of the deceased as parties to the suit à Suit shall be proceeded. (Order 22 Rule 4 (1))
Such an Application under Order 22 Rule 4 (1) shall be accompanied with an affidavit. That affidavit can be sworn by the Plaintiff.
Each page of the affidavit shall be duly signed by the Deponent and the Petition shall be signed by the Advocate for the Applicant. Sufficient Court Fee has to be affixed along with the Petition
A simple draft of Order 22 Rule 4 Petition is attached below for your reference:-
Order 22 Rule 4 (2):- LRs of the Defendants were added as parties to the suit à Such defendant shall defend the matter appropriate to his character as the LR of the deceased defendant.
Order 22 Rule 4 (3):- Plaintiff failed to file the application under this order within the time limit of 90 days then, the Suit shall be abated as against the deceased defendant.
Order 22 rule 4(4) :- Death of defendant shall not abate the suit when the defendant failed to file Written statement or filed the Written statement but failed to appear or contest the matter. On such cases the plaintiff is exempted from filing an application under this order. The judgment may be pronounced, irrespective of defendant’s death, such Judgment shall have the same force and effect as if it was produced before death.
ORDER 22 RULE 4 (5) PLAINTIFF’S IGNORANCE ABOUT THE DEATH AND COMPLIANCE OF PROCEDURE
Order 22 Rule 4(5) (a) Being ignorant about the death of the Defendant, within the limitation period, the Plaintiff filed an application bring on the LRs of such defendant as parties to the suit a Suit gets abated as its consequence
Order 22 Rule 4 (5) (b) Being ignorant about the death of the defendant, within the limitation period, the plaintiff had failed to file an Application to add the LRs of the defendant as parties to the suit. On such a case, the suit shall not be abated. Where the plaintiff has to prove a sufficient and reasonable cause for the fact of ignorance by filing an application under Section 5 of limitation Act.
Prayer Part of the Petition under Order 22 Rule 3 and Rule 4:-
The Prayer of the Petition Order 22 Rule 3 or Order 22 Rule 4 shall include “To implead the LRs”, or “To Bring on the LRs” Thus the Prayer portion shall include the word “To implead” or the word “To Bring on”.
Order 22 Rule 3 and Order 22 rule 4 of the Civil Procedure Code do include the tern “Legal Representatives”. The term Legal Representatives do include the term “Legal Heirs”, The Order 22 expressly stating Legal Representatives, it will be more appropriate to use the term “LEGAL REPRESENTATIVES” instead of “LEGAL HEIRS”
“The portions typed in Black colour in our formats are the formal contents which an Application must have. Whereas the portions typed in Blue Colour can be corrected based on the facts and circumstances of the case”
Conclusion:-
Hence when a party to the suit on whom the right to sue survives dies during the pendency of the suit, then the Plaintiff or the appellant has to take step either in order 22 rule 3(1) or Order 22 Rule 4 within a period of 90 days. Application filed at the expiry of 90 days shall comply the procedure under Order 22 Rule 9.
[1] The Editors of Encyclopædia Britannica, “Abatement”, BRITANNICA, https://www.britannica.com/topic/abatement
[2] Jayshree Vs Satyendra, 023 SCC OnLine Bom 1582 ,