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Report No. 144

8.3.2. Question for consideration.-

The question is, whether this rule applies in case of partial or total abatement of a suit, on the death of a party.

8.3.3. According to the High Court of Madras1 it does. According to the High Courts of Orissa2 and Gauhati3, it does not.

1. Perla Perumal v. Pichan, (1910) 8 IC 268, cited in Seshamma v. Venkata Surayanarayana, ILR 33 Mad 643: AIR 1914 Mad 170 (2) (Sadasiva Aiyar and Spencer, JJ.) (But the permission cannot be availed of, to sue the heirs of the deceased).

2. Shyam Ray v. Harmani Dei, AIR 1984 Ori 67 (69, 70), para. 11 (R.C. Patnaik, J.).

3. Prabhat Chandra Saikia v. Rajani Bala Devi, AIR 1972 Gauhati 85 (86) (Bahrul Islam, J.).

8.3.4. The Orissa reasoning is to the effect that to permit the plaintiff to withdraw in such circumstances would be to permit him to get round the provision contained in Order 22, rule 9, and would be to put a premium on the laches and negligence of the plaintiff. It would confer undue advantage on the plaintiff and cause great disadvantage to the surviving defendant and to the legal representative of deceased defendant. By reason of abatement of a suit on death, certain rights and benefits accrue to the surviving defendant and also to the legal representative of deceased defendant depending on the suit and the reliefs claimed.

"I can see no reason, either in law or in equity, to deprive the defendant and the legal representative, of the rights and advantages so gained by the failure of the plaintiff to substitute, by permitting withdrawal of the suit with liberty to file a fresh suit on the same cause of action".1

1. Shyam Ray v. Harmani Dei, AIR 1984 Ori 67 (69, 70, 71), para. 13 (R.C. I'atnaik, J.).

8.3.5. There seems to be an earlier Calcutta case1 taking the view that in such circumstances withdrawal cannot be granted. In that case, the suit was against the sole dependant for possession. On his death, his legal representatives were not substituted and, consequently, the suit abated. It was held that inasmuch as there was no suit pending upon abatement of the suit against the sole defendant, withdrawal of the suit with liberty to file a fresh suit could not be permitted.

1. Ramesh v. Deo Mehar Bibi, (1936) 40 CWN 1019 (R.C. Mitten, J.), noted in Shyam Ray v. Harmani Dei, AIR 1984 Ori 67 (70), para. 12.

8.3.6. But in a later Calcutta case,1 such leave was granted where the suit abated on death of one co-trespasser.

1. Hakim Mahamad v. Abdul Majid, AIR 1953 Cal 538, para. 3 (There is no elaborate discussion (G.N. Das, J.).

8.3.7. In a Gauhati case1 it was held that the abatement of suit against a trespasser defendant was not a formal defect within Order 23, rule 1. As regards the expression "sufficient ground" also counsel could not point out any. "In my opinion, when a defect goes to the root of the plaintiff's case and affects its merits, it cannot be a formal defect and the omission on the part of the plaintiff to substitute the heirs of the deceased plaintiff is not such a defect".

1. Prabhat Chandra Saikia v. Rajani Bala Devi, AIR 1972 Gau 85 (86) (Baharul Islam, J.).

Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back

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