This article is written by Raunak Sood, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Table of Contents
Introduction
The death of a party to a suit is one of the major causes that leads to the pendency of the suit. Order-XXII of CPC mentions what is to be done in such a scenario. Due to the death of a party, generally, the suit or the proceedings are interrupted after the institution of the suit and before the judgement or the decree has been pronounced. And after the death of the party, the most important question that arises is, whether the right to survive or not. The continuation of the suit depends on the fact that, if the right to sue survives then the suit can be continued but if it does not survive then the suit cannot be continued further. And the general principle followed by the Code is that because of death one party to the suit shall not come to an end. Order-XXII Rule 1-6, 9 and 10A of CPC deals with provisions related to the death of a party during the pendency of a suit.
Now, the question that arises is what will happen in case of the death of one of the parties to the suit and what is the procedure with regards to it? The procedure and the answer to this question are given under Order-XXII of CPC. And to answer the above question it depends upon the survival of the Right to sue.
The first rule tells us that in case of death one party to a suit where there are co-plaintiffs or co-defendants and the right to sue survives. In case, where such right survives in respect of the other plaintiff then the court shall proceed with the suit. And in cases where one of the defendants to the suit has died but the right to sue has survived in respect of the other defendants then also the court shall proceed with the suit. The problem arises with regards to the continuation of the suit when no right to sue survives and this has been discussed in the chapters below in this paper. In this article, all such scenarios have been discussed. Also, the nature of the right to sue in the context of the death of a party in a suit and the procedures with regards to that have been mentioned.
Illustration
Now, suppose that ‘X’ is a Police Officer working in the state of Madhya Pradesh and while doing his duty he died. ‘Z’, who is X’s wife, is not entitled to receive the gratuity amount from ‘Y’ as her husband died on duty. But she was refused to be entitled to that amount. So, ‘Z’ filed a suit against the officers and by a decree of the court, she got that amount. But during the pendency of the suit ‘Y’ was replaced by ‘Q’ hence, ‘Y’ did not have any such position and authority. And as per Order-I of CPC, no decree can be obtained against a party not being implemented as a necessary party which according to this is ‘Q’, but the decree was obtained as against ‘Y’. In this case scenario, the suit filed by ‘Z’ can be dismissed by the courts. But X’s wife has the option to substitute ‘Y’ with ‘Q’ as the defendant as per the provisions of Order-XXII, Rule 3 of CPC depending on the fact that whether the right to sue is surviving or not.
What happens when a party to a suit dies during the pendency of the suit?
Death of a party to a suit is a consequence which leads to the pendency of a suit provisions w.r.t it has been given under Rules 1-6, 9, 10A of Order-XXII (hereinafter referred to as, O.XXII) of the Code of 1908. The general principle followed is that the suit shall not come to an end because a party to that suit has died. Further, the proceedings are dependent upon the fact that whether the Right to Sue survives or not. If it does survive then the court can proceed with that case and the suit will not be abated but in a case where there is no such right surviving then in that scenario the courts cannot proceed and the suit will come to an end.
‘Right to sue’ has not been defined under CPC as such but its meaning can be interpreted as ‘right to seek relief’. So, if the cause of action is still surviving then it can be said that the right to sue is also surviving.
As per Order-XXII, Rule 1, a suit cannot be abated even if any of the parties to the suit dies while the suit is still pending if this Right to sue survives. And in a civil suit the principles of actio personalis moritur cum persona which means, that a personal action where relief is sought dies with the death of the person from whom such action was directly or intimately connected. Hence, in this case, the right to will does not survive with the representatives of the deceased. However, this doctrine is not applicable to those cases where the right to sue has survived. Also, this doctrine is applicable to those situations where an appeal is pending before a court. A suit can be abated either as a whole or partially. In the case where the suit was found to be related to only torts, it will be dismissed as a whole but where some action was related to torts and the other were of civil nature then in that case the part containing the actions related to the civil matter will survive and the torts part will get dismissed.
Rule 2 of O.XXII of CPC talks about the procedure with regards to the death of one of the parties to the suit. Wherein if one of the parties to a suit dies but the right to survives in favour of the other parties be it with regards to the plaintiffs or defendants the court shall, in that case, take a record of such scenario and proceed with the case and this is done because the suit might be presented before various courts and can continue for years hence the record shall be maintained and track should be kept of that case. So, basically, this provision allows the courts to continue with the proceedings of the suit in the same manner even after the death of the party to the suit as it would have been before the death of that party.
Under Rule 3 of the O.XXII procedure with regards to the substitution of the parties has been described. Sub-clause (1) to this rule mentions that in a scenario wherein the sole plaintiff has died and the right to sue has survived then the legal representative of such party by an application to the court can be substituted and the suit can be continued further. Also, it mentions that where there are more than one plaintiff and because of the death of on such plaintiff the right to sue does not survive in respect of the other plaintiffs to the suit then in that case also the legal representative of the deceased can continue with suit by substituting the deceased but, an application has to be given to the courts for such issue. In sub-clause (2) the limitation period to make such application as prescribed in the provision is within 90 days of the death of such party be it the plaintiff or the defendant.
The parties can only be substituted only if the courts are of such view the legal representative has such authority to substitute the deceased party. But in cases where no application has been made or is barred by the law of limitation or the court has refused such application then in that case suit shall be abated and further the proceeding shall be stopped. And if the defendant files for the recovery of the cost of litigating the case then that can be adjusted from the assets of the deceased plaintiff.
With respect to Rule 4 the whole procedure is similar to that of substitution of the plaintiffs. Even the limitation period is the same as that of Rule 3 for making such an application for replacing the parties. But one thing to notice here is that this power is discretionary and the courts can allow the plaintiff to not substitute such a representative in a case where the court deems it fit where the deceased plaintiff forgot to file the ‘Written Statement’. And here the judgement can be decreed in favour of the plaintiff and will become binding on the representative of the deceased defendant.
Before the 1976 Amendment to CPC this substitution of parties was not allowed and after the amendment Rule 4A was added. Here if the deceased had no legal heir or representative then the court had only two options. First being that the remaining parties to the suit can file the application to proceed with the suit even after the absence of the deceased party to the suit. Second being, an administrator could be appointed by the courts who may represent the estate of the deceased party. But here that person shall not have an interest adverse to the deceased party.
In cases where the determination of the legal representative of the deceased party is not certain and there is a doubt w.r.t it then in that case the courts have the power to determine such representative.
According to Rule 9, if the suit has been dismissed then no fresh case can be brought for the same cause of action if the party to a suit dies and no right to sue survives then in that case neither a relief can be claimed, nor any legal action can be brought against that cause of action. In this case the suit will be abated. However, to set aside such an order of abatement the legal representative of the plaintiff can make an application to the court to set aside such an order and can commence a fresh but bona fide intention should be shown and it should be reasonable. However, this act is barred by the provision of Section.5 of the Limitation Act, 1963.
Meaning, nature of right to sue and frustration of suit
O. XXII of Civil Procedure Code, 1908 is a provision of CPC which mainly envisages the devolution of interest during the pendency of a said suit, wherein it is pertinent to note that O. XXII is procedural in nature and therefore it requires a liberal interpretation to meet the ends of justice, because it is settled law that procedural law cannot triumph over substantive law. It is to be noted that O. XXII does not apply to execution proceedings and writ proceedings, this being said it is hereby contended that devolution of interest may arise on grounds of death of a party to the suit.
When a party to the suit dies, the first question which needs to be determined is whether the right to sue survives in the said proceedings, if the answer is positive then the court may implement the legal representatives of the said deceased party and if the answer is negative, then there is an end to the suit.
“Right to sue” which appears in O. XXII does not have a definite meaning assigned to it in the Code of Civil Procedure, 1908 but according to the dictum laid down by the Hon’ble Supreme Court in the case of Phool Rani v. Naubat Rai Ahluwalia, the “right to sue” can be construed to be interpreted as the “right to seek relief” albeit “right to sue” can be said to have survived on the ground of the survival of the cause of action. A common rule seen good in the eyes of law is that on the death of a party to the suit, the cause of action and the said rights of the aggrieved party survive and the legal representatives can pursue the suit on behalf of the deceased, but as per the scheme laid down in O XXII, CPC the maxim actio personalis moritur cum persona i.e. personal action dies with the person is applied herein to the concept of “right to sue” henceforth it can be said that wherein the relief is sought in a suit on grounds of violation of in personam rights, because these rights being connected with the individuality of the deceased will die on the death of the deceased. Therefore, it is concluded that “right to sue” will not survive on the death of a party if the pending suit was contended on grounds of in personam rights.
An illustration wherein the “right to sue” does not survive is a suit of personal injuries or suit for damages sought on grounds of assault, malicious prosecution, breach of contract of betrothal, dissolution of marriage etc. On the other hand the “right to sue” survives if the suit instituted was not based on the violation of in personam rights but instead there was a violation of in rem rights wherein the right was claimed against a thing because the right is not personal in nature it is claimed with respect to immovable property or based on a right conferred by a statue with respect to a particular thing. An illustration to the said effect wherein the “right to sue” survives can be a suit instituted by a landlord seeking possession of the rented premises of the tenant, herein on the death of the landlord the “right to sue” survives and the court can substitute the legal heirs of the deceased landlord, similarly a suit for rendition of accounts against a trustee where a trustee died or a suit for partition of ancestral property by a coparcener after his death. In the above illustrations, the relief or right was against a thing and not personal in nature.
Nature of “right to sue” can be said to be divided on the basis of the nature of right whose violation took place and henceforth the suit was instituted on the basis of the violation of that right, it can be concluded that if the right in rem is claimed in the suit then the suit does not get frustrated and the suit can be adjudicated upon by an impleadment of legal representatives of the deceased by an application within 90 days from the death of the deceased party. If in personam rights are claimed then upon the death of a party to the suit, the said suit gets frustrated because the right was personal in nature but the Supreme Court in the case of M. Veerappa v. Evelyn Sequeira that if the entire suit is based on personal claim or tort then the entire suit will abate but if the suit is partially based upon tort and partially on contract then that part based on an in rem right or the contract part of the suit will survive and there will be a partial abatement of the suit, not a full abatement.
In the case of Melepurath Sankunni v. Thekittil Geopalankutty, the Hon’ble apex court iterated that wherein a suit for damages which was involving a personal claim, on the death of the plaintiff-appellant, the “right to sue” does not survive as a general rule but if the said suit was decreed on the death of the plaintiff, the interested legal representatives of the plaintiff may continue the suit in appeal because the question of law arising in such circumstances is detriment to the estate of the deceased plaintiff. Henceforth, on the corollary, it can be claimed as settled law that if a suit is dismissed on the death of a plaintiff, the “right to sue” does not survive and the suit may get abated or frustrated.
Facilitation of suit and impleadment of legal representatives of deceased party to the suit
When it comes to the impleadment of the legal representatives (hereinafter referred to as “LR”) of the deceased party, it will be conducive to review the scheme of O XXII, CPC, wherein O XXII R. 1 – 3, iterate that when a sole plaintiff dies, the suit can be continued by the legal representatives of the deceased sole plaintiff, where one of several plaintiffs dies and right to sue survives, the court may make an entry and proceed with the suit, also the court on the application of the legal representatives ( LR) of the deceased plaintiff may make them a party to the suit. When a sole defendant dies, provided that right to sue survives the suit shall not abate and when one of several defendants dies and the right to sue survives the court on application by legal representatives, will make them a party to the suit but if the application is not made within a period of 90 days the suit shall abate against the said defendant. The court upon its discretion may exempt a pro forma defendant from substituting an LR. If a plaintiff is not aware of the death of the defendant and does not make an application before the court for impleading the LR of the defendant within the time of limitation, the said suit shall be abated, but if the application is made within the 90 day period and in the application it is stated that the plaintiff did not know about the death of the defendant and therefore he could not make an application, on this ground the court may consider the application.
The procedure for the substitution of LR is quite simple, the main focus should be placed on Rule 4 & 9 of OXXII, CPC wherein if the plaintiff is not aware of the death of the defendant and did not make an application to the court for bringing the legal representatives on record within limitation time, the suit is deemed by the court to be abated, but for the court to dismiss the abatement which was recorded by the court, the plaintiff has to file an application under S.5 of the Limitation Act,1963 for condonation of delay on grounds of ignorance, wherein the burden of proof lies on the plaintiff to prove this aspect of ignorance. Article 120 of the Limitation Act, 1963 envisages that within a time period of 90 days from the death of the said plaintiff or defendant, it is contended that if the application for the substitution of legal representatives is not filed within 90days, the suit stands abated. Article 121 envisages that an application should be made within 60 days from the date of abatement of the suit, hence if Article 120 is read with Article 121 of the limitation act, 1963, henceforth a petitioner may file an application in the court for setting aside the abatement of the suit within 150 days ( 90 days as mentioned in Article 120 of the limitation act plus 60days as mentioned in Article 121 of the limitation act, 1963). Along with this, a petition under S. 5 of the limitation act for condonation of delay should also be present because it is necessary as per OXXII R. 4(5), on grounds of ignorance or “sufficient cause” for the condonation of delay, if the said period of limitation is over.
The expression “sufficient cause” should undergo a liberal interpretation because OXXII, CPC is a procedural aspect and advancement of substantive justice should be given priority.
Conclusion
It can be observed that as per the provisions of O.XXII a suit cannot be abated on account of the death of either party if the right to sue still survives. It was concluded by the courts that the mere fact that a party to a suit has died will not lead to the abatement of the suit; instead, the suit can still be continued.
It is hereby concluded that a suit will not abate or get frustrated if the nature of “right to sue” is in rem and the said suit will abate of the nature of the “right to sue” is in personam whereas a partial abatement will take place when the suit is involving both the in rem and in personam right, wherein only the relief sought in rem in nature will be adjudicated upon by the court by substituting the legal heirs within 90 days.
Another conclusion that can be drawn is that it is very important to note the settled law that the clock of limitation starts ticking for bringing the LR of the deceased party on record from the date of the death of the deceased party, but if the application for bringing on record the LR of deceased party is not filed within 90 days, the suit stands abated against the deceased defendant, now the burden is onto the plaintiff to file an application to dismiss the abatement of the suit within 60days from the date on which the order for abatement was passed.
Now a petition under Section 5 of the Limitation Act, 1963 is needed to file if the application of abatement and impleadment of legal representatives are filed after the 150 day period and the petition should be pleading the ignorance of the death of the defendant, with the proof being shown to the court by the petitioner. But if the condonation of delay petition is not filed and only the applications for impleadment and abatement are solely filed then the court can reject these applications of impleadment and abatement. It is to be kept in mind that it is not the date of knowledge but the date of death of the party from which the limitation starts ticking.
References
- https://www.scconline.com/blog/post/2018/08/07/no-abatement-of-suit-in-case-of-death-of-a-party-if-right-to-sue-survives/
- Punjab State v. Kabul Singh, MANU/PH/0072/1968
- S.R. Gaitonde v. J.J. Fonseca, AIR 1976 Goa 11
- Karuppaswamy v. C. Ramamurthy, MANU/SC/0354/1993
- Nehra Chits (P) Ltd. v. B. Ramachandra Reddy & Ors, MANU/AP/0641/2003
- M. Veerappa v. Evelyn Sequeira, AIR 1988 SC 506
- Radhu Napit v. Tarapdo Napit, 2018 SCC OnLine Jhar 635
- Melepurath Sankunni v. Thekittil Geopalankutty, AIR 1988 SC 506
- Sardar Amarjit Singh v. Pramod Gupta, (2003) 3 SCC 272
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