Report No. 144
This brief resume of the case law shows need for clarification. Strictly speaking, where a suit has abated by reason of death, the suit comes to an end (i) by operation of the events that took place (ii) in the light of the law relating to abatement. Therefore, it sounds illogical to take a view that in such a case, the court can permit withdrawal of the suit with liberty to file a fresh suit. It would appear that to settle the controversy on the subject, it is necessary to insert an Explanation in Order 23, rule 1(3), as under:-
"Explanation.-Where, as a result of the provisions contained in Order 22 of this Schedule, a suit has abated or a part of the claim has abated, the abatement shall not be deemed to constitute a sufficient ground for granting to the plaintiff permission under this sub-rule to withdraw from such suit or from such part of the claim, as the case may be with liberty to institute a fresh suit."