Report No. 54
22.13. We, therefore, recommend that the following rule should be inserted as Order 22, rule 4A:
"4A. (1) If, in any suit, it shall appear to the court that any party who has died during the pendency of the suit has no legal representative, the court may, on appropriation of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, an officer of the court or some other person to represent his estate for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall, bind the estate of the deceased person to the same extent as it would have been bound if a personal representative of the person had been a party to the suit.
(2) Before making an order under this rule, the Court-
(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit; and
(b) shall ascertain that the person proposed to be appointed to represent the estate is willing to be so appointed".
Order 22, rule 9(1)
22.14. Order 2, rule 9(1) is as follows:-
"9.(1) Where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action".
22.15. The rule is silent on the question whether the cause of action invoked in the abated suit could be raised as a defence in a later suit.
22.16. The Madras view1 is, that the plaintiff whose suit has abated, is not only barred from a fresh suit on the same cause of action, but he cannot get rid of the effect of the earlier decision by pleading the same matter as a defence in the subsequent suit. The contrary view taken in a Bombay case2 was dissented from.
1. Kamatchi Ammal v. Athigarjudaya, AIR 1969 Mad 426.
2. Jayasing v. Gopal, (1904) 6 Born LR 638 (DB).
22.17. The Lahore High Court1 has taken the same view as the Madras High Court.
1. Raju v. Ram Chand, AIR 1933 Lah 752 (753) (DB).
22.18. In the Madras case, it was observed that the decision of the Lahore High Court is more in accordance with the principle embodied in Order 22, rule 9. The earlier determination should be deemed to be a decision against him, and he cannot get rid of the effect of the earlier determination just because he happens to be a defendant in a subsequent suit.
22.19. On the other hand the Bombay High Court has held1 that where the legal representatives of the plaintiff, on whose death the suit abated, get into possession of the property, they are entitled to resist the suit brought to oust them from possession and that the previous order of abatement did not preclude them from setting up their title by way of defence. This is also the Allahabad view.2
1. Jayasing v. Gopal, (1904) 6 Born LR 638 (DB).
2. Bejai Raghi v. Tej Narain, AIR 1943 All 99 (Mathur J.).
22.20. Logically, it would appear that the Bombay view is preferable. After all, the law should not multiply impediments to just pleas or defences. Order 22, rule 9, prohibits a fresh suit in order to avoid undue harassment to the opposite party. But, where the opposite party himself takes the initiative, and files a suit, there is no reason why the person whose suit has abated (or his representative) should be debarred from asserting his rights as a shield. Procedure should not stand in the way of assertion of lawful claims or defences, except where such a bar is absolutely necessary. No great consideration of public interest appears to justify the exclusion of such defence. The rule is a disabling rule1, and should be strictly construed. It does not create res judicata.2 It should not, therefore, be given a wider effect than is absolutely necessary.
1. Lachhman v. Bansi Lal, AIR 1931 Lah 79 (80).
2. Sheikh Habibulla v. mumuna Singh, AIR 1958 Pat 95 (96), para. 7.
22.21. We, therefore, recommend that a suitable Explanation should be inserted in Order 22, rule 9(1), to give effect to the Bombay view. The Explanation could be on the following lines:
"Explanation-Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order."
Order 22, rule 10 (New)
22.22. A new rule is proposed to be inserted to the effect that where a pleader comes to know of the death of a party to the suit, he shall inform the court and the Court, in its turn, shall give notice to the plaintiff of the death. Such a provision will, to some extent, reduce the complications that arise by reason of the plaintiff's ignorance of the death of a defendant. The new rule will be as follows:-
"10A.(1) When a pleader appearing for a party to the suit comes to know of the death of that party he shall inform the court about it: and the Court shall thereupon give notice to the plaintiff of the death.
(2) Where the pleader of a party, on coming to know of his death, does not, within a reasonable time, communicate the fact of such death to the opposite party, the court may order him to pay the costs occasioned by his failure to communicate the fact".