201

ABATEMENT OF
SUIT
CIVIL PROCEDURE CODE
FACULTY NAME:BRN SARMA

ARUNABH SHARMA
ROLL-725, SESSION-2012-17, 5TH SEM

CONTENTS
TOPIC

PAGE NUMBER

ACKNOWLDEGEMNT

OVERVIEW

CHAPTER-1

5-6

CHAPTER-2

7-9

CHAPTER-3

10

CHAPTER-4

11

CHAPTER-5

12

CHAPTER-6

13-14

CONCLUSION

15

BIBLIOGRAPHY

16

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ACKNOWLEDGEMENT:
A jug fills drop by dropthat is what Lord Buddha said years ago, without those drops the
jug would be useless and it is a moral obligation upon me to acknowledge all those drops
which helped me to prepare the project. Right from my teacher BRN SHARMA Sir who
taught us the importance of Civil law with similar perseverance as a gardener does in
nurturing the tender flowers of his garden, .to the various books and case books found in
amass in the library certainly proved to be of great help akin to a north star for my journey.

I would also like to thank the various sources available on the internet, the various
anonymous people, the various articles which otherwise offer nothing but a mundane
expression played a pivotal rule in moulding the project, without them the complete project
would still have remained at the foetal stage.

Lastly I would like to thank my parents and the luminous silhouette which tends to guide and
look after me not just in the project but also in my life despite my dearth of affection and
sincerity towards them.

ARUNABH SHARMA
ROLL:725, 5TH SEMESTER
CNLU, PATNA
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21.10.2013

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OVERVIEW (RESEARCH METHODOLOGY)

AIM AND OBJECTIVE
In this project the researcher aims at studying the abatement of suit and its implication in the
CPC.
SCOPE
The researcher strictly deals with the abatement of suit and its implication within the Indian
judicial system.

RESEARCH METHODOLOGY
The researcher has strictly used doctrinal method and has not indulged in any form of field
study.

SOURCE OF DATA
The researcher has used secondary source of data, whereby he has culled the necessary
materials from the books, journals , various books on CPC or articles on internet.

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CHAPTER-1
ABATEMENT OF SUIT: AN OVERVIEW
Abatement of an Action
An entire overthrow or destruction of a suit so that it is quashed and ended.
The purpose of abatement is to save the time and expense of a trial when the plaintiff's suit
cannot be maintained in the form originally presented. After an action abates, the plaintiff is
ordinarily given an opportunity to correct errors in his or her Pleading. If the plaintiff still is
unable to allege the facts necessary to state a legal Cause of Action, then the action is
terminated.
A reduction, a decrease, or a diminution. The suspension or cessation, in whole or in part, of a
continuing charge, such as rent.

With respect to estates, an abatement is a proportional diminution or reduction of the

monetary legacies, a disposition of property by will, when the funds or assets out of which
such legacies are payable are insufficient to pay them in full. The intention of the testator,
when expressed in the will, governs the order in which property will abate. Where the will is
silent, abatement occurs in the following order: intestate property, gifts that pass by the
residuary clause in the will, general legacies, and specific legacies.

In the context of taxation, an abatement is a decrease in the amount of tax imposed.

Abatement of taxes relieves property of its share of the burdens of taxation after the
assessment has been made and the levy of the tax has been accomplished1

Not every possible reason for dissatisfaction with another person can be heard by a court.
When the old Common Law form of action governed the procedure followed by courts (as
opposed to state and federal rules of procedure, which now do), only legal wrongs that fit
exactly into one of the allowed categories could be pleaded in court. If the defendant believed
that the plaintiff's complaint did not fit one of these forms, the defendant could respond with
a plea in abatement. A plea in abatement was called a dilatory plea because it delayed the
time when the court would reach the merits of the plaintiff's claim, if ever.2

Takwani,CK, Civil Procedure Code,7th Ed,EBC, p 87

Takwani,CK, Civil Procedure Code,7th Ed,EBC, p 298

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The rigid formality of common law pleading became less satisfactory as legal disputes
became more complicated. It has been replaced in each state by a procedure that allows the
plaintiff to plead facts showing his or her right to legal relief. Modern systems of pleading
retain a right for the defendant to seek abatement of the action when the plaintiff is not
entitled to be in court. They allow a defendant to object to the court's jurisdiction, the venue
of the trial, the sufficiency of process, or of the Service of Process, the legal sufficiency of the
plaintiff's claim, or the failure to include someone who must be a party. A plea in abatement is
made either in the defendant's answer or by motion and orderthat is, an application to the
court for relief and an order that can grant it. Abatement is usually granted in the form of a
dismissal of cause of action, and now the term dismissal is used more often than the term
abatement for this procedure.

Today, the word abatement is most often used for the termination of a lawsuit because of the
death of a party. Under the common law, a lawsuit abated automatically whenever a party
died. This rule was considered a part of the substance of the law involved and was not merely
a question of procedure. Whether the cause of action abated depended on whether or not the
lawsuit was considered personal to the parties. For example, contract and property cases were
thought to involve issues separate from the parties themselves. They were not personal and
did not necessarily abate on the death of a party. Personal injury cases were considered
personal, however, and did abate at death. These included claims not only for physical assault
or negligent injuries inflicted on the body, but also for other injuries to the personsuch as
libel, slander, and Malicious Prosecution.

Today there are statutes that permit the revival of an action that was pending when a party
died. An executor or administrator is substituted for the deceased party and the lawsuit
continues. A lawsuit may not be revived unless the underlying cause of action, the ground for
the suit, continues to have a legal existence after the party's death. Revival statutes vary from
state to state, but today most lawsuits do not abate.

This general rule does not apply to matrimonial actions. A lawsuit for Divorce or separation is
considered entirely personal and therefore cannot be maintained after the death of a party.
Different states do make exceptions to this rule in order to settle certain questions of property
ownership. An action for the Annulment of a marriage after the death of an innocent spouse
may be revived by the deceased spouse's Personal Representative if it is clear that the
marriage was induced by Fraud and the perpetrator of the fraud would inherit property to
which he or she would otherwise not be entitled.3

Mulla, Civil Procedure Code, Lexis Nexis, p 23

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CHAPTER-2
CIRCUMSTANCES FOR ABATEMENT:
DEATH OF PARTIES4:
1. No abatement by party's death if right to sue survives
The death of a plaintiff or defendant, shall not cause the suit to abate if the right to sue
survives.
2. Procedure where one of several plaintiffs or defendants dies and right to sue survives
Where there are more plaintiffs or defendants than one, and any of them dies, and
where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against
the surviving defendant or defendants alone, the Court shall cause an entry to that
effect to be made on the record, and the suit shall proceed at the instance of the
surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.
3. Procedure in case of death of one of several plaintiffs or of sole plaintiff
(1) Where one of two or more plaintiffs dies and the right to sue does not survive to
the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff
dies and the right to the sue survives, the Court, on an application made in that behalf,
shall cause the legal representative of the deceased plaintiff to be made a party and
shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1),
the suit shall abate so far as the deceased plaintiff is concerned, and, on the
application of the defendant, the Court may award to him the costs which he may
have incurred in defending the suit, to be recovered from the estate of the deceased
plaintiff.
4. Procedure in case of death of one of several defendants or of sole defendant
(1) Where one of two or more defendants dies and the right to sue does not survive
against the surviving defendant or defendants alone, or a sole defendant or sole
surviving defendant dies and the right to sue survives, the Court, on an application
made in that behalf, shall cause the legal representative of the deceased defendant to
be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as
legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1),
the suit shall abate as against the deceased defendant.
1

[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of
substituting the legal representatives of any such defendant who has failed to file a
written statement or who, having filed it, has failed to appear and contest the suit at
the hearing; and judgment may, in such case, be pronounced against the said
4

Civil Procedure Code 1908

8 | Page

defendant notwithstanding the death of such defendant and shall have the same force
and effect as if it has been pronounced before death took place.
1

(5) Where..
(a) the plaintiff was ignorant of the death of a defendant, and could not, for
that reason, make an application for the substitution of the legal representative
of the defendant under this rule within the period specified in the Limitation
Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefore in the
Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for
the admission of that application under section 5 of that Act on the ground that
he had, by reason of such ignorance, sufficient cause for not making the
application within the period specified in the said Act,
the Court shall, in considering the application under the said section 5, have
due regard to the fact of such ignorance, if proved.]

4A. Procedure where there is no legal representative

(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 the application 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, or an officer of
the Court or such other person as it thinks fit to represent the estate of the deceased
person 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 he
would have been bound if a personal representative of the deceased 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 of the deceased person as it
thinks fit; and
(b) shall ascertain that the person proposed to be appointed to represent the
estate of the deceased person is willing to be so appointed and has no interest
adverse to that of the deceased person.]
5. Determination of question as to legal representative
Where a question arises as to whether any person is or is not the legal representative
of a deceased plaintiff or a deceased defendant, such question shall be determined by
the Court:
1

[Provided that where such question arises before an Appellate Court, that
Court may, before determining the question, direct any subordinate Court to
try the question and to return the records together with evidence, if
any recorded at such trial, its findings and reasons therefor, and the Appellate
Court may take the same into consideration in determining the question.]
6. No abatement by reason of death after hearing
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Notwithstanding anything contained in the foregoing rules, whether the cause of

action survives or not, there shall be no abatement by reason of the death of either
party between the conclusion of the hearing and the pronouncing of the judgment, but
judgment may in such case be pronounced notwithstanding the death and shall have
the same force and effect as if it had been pronounced before the death took place.

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CHAPTER-3
MARRIAGE OF PARTY5
7. Suit not abated by marriage of female party
(1) The marriage of a female plaintiff or defendant shall not cause the suit to abate,
but the suit may notwithstanding be proceeded with to judgment, and, where the
decree is against a female defendant, it may be executed against her alone.
(2) Where the husband is by law liable for the debts of his wife, the decree may, with
the permission of the Court, be executed against the husband also ; and in case of
judgment for the wife, execution of the decree may, with such permission, be issued
upon the application of the husband, where the husband is by law entitled to the
subject-matter of the decree.

Civil Procedure Code 1908

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CHAPTER-4
INSIOLVENCY OF THE PARTY6
. When plaintiffs insolvency bars suit
(1) The insolvency of a plaintiff in any suit which the assignee or receiver might
maintain for the benefit of his creditors, shall not cause the suit to abate, unless such
assignee or receiver declines to continue the suit or (unless for any special reason the
Court otherwise directs) to give security for the costs thereof within such time as the
Court may direct.
(2) Procedure where assignee fails to continue suit or give security.-Where the
assignee or receiver neglects or refuses to continue the suit and to give such security
within the time so ordered, the defendant may apply for the dismissal of the suit on
the ground of the plaintiffs insolvency, and the Court may make an order dismissing
the suit and awarding to the defendant the costs which he has incurred in defending
the same to be proved as a debt against the plaintiff's estate

CHAPTER-5
6

Civil Procedure Code, 1908

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DEVOLUTION OF INTEREST
10. Procedure in case of assignment before final order in suit
(1) In other cases of an assignment, creation or devolution of any interest during the
pendency of a suit, the suit may, by leave of the Court, be continued by or against the
person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal there from shall be deemed to be an
interest entitling the person who procured such attachment to the benefit of sub-rule
(1).
Scope.Where the interest of a party in the subject-matter of the suit has devolved upon
another during the pendency of such suit, the suit can be continued with the leave of the
Court. Prayer for leave of Court to continue suit can be made not only by the person upon
whom interest has devolved, but also by the plaintiff or any other party interested. Expression
"other cases' mentioned in the Rule denotes cases other than those specifically mentioned in
the previous rules of this Order e.g. cases pertaining to death of party which are covered
under Rules 2, 3 and 4 are excluded. Where the assignment between two of the parties of suit
is by way of transfer, at the time of granting leave the parties must be given an opportunity to
show whether the plea was genuine or not.
Where before the death of a party its share in property in suit is already transferred to the
other parties on record, there is no need to bring legal representatives of the deceased on
record. Where the preliminary ex parte decree became final, there is no scope to reopen the
preliminary decree.
Impleadment of assignee who obtained property in violation of stay order.The
alienation/assignment made in defiance of the restraint order would defeat the ends of justice
and the prevalent public policy. When the Court intends a particular state of affairs to exist
while it is in reisin of a lis, that state of affairs is not only required to be maintained, but it is
presumed to exist till the Court orders otherwise. The Court in these circumstances, has the
duty, as also the right, to treat the alienation assignment as having not taken place at all. Once
that is so, the assignees cannot claim to be impleaded as a party on the basis of a assignment.
During pendency of suit for declaration of title, the defendant sold the property; the suit
continued with original party. Held, the transferee would continue to be bound by the decree.

CHAPTER-6
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EFFECT OF ABATEMENT OF SUIT

9. Effect of abatement or dismissal
(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought
on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased
plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply
for an order to set aside the abatement or dismissal; and if it is proved that he was
prevented by any sufficient cause from continuing the suit, the Court shall set aside
the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of section 5 of the 'Indian Limitation Act, 1877 (15 of 1877)2 ,
shall apply to applications under sub. rule (2).
1

[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.]
Scope.Rule 9 prohibits fresh suit after the abatement or dismissal of suit under this Order
but abatement or such dismissal does not bar a plea from being taken as a defence in a
subsequent suit even if such plea was taken in the suit abated. While prohibiting fresh suit in
sub-rule (1), the sub-rule (2) of Rule 2 enables the plaintiff or any person claiming to be his
legal representatives of deceased plaintiff to apply for setting aside the order of abatement if
he proves that due to sufficient reason he could not continue with the suit. Where the legal
representative had no knowledge of suit and he came forward for his substitution as soon as
he knew that his deceased father had filed suit, the abatement order can be set aside.
Similarly, where a illiterate plaintiff proves that he could not move application for
substitution as he did not know the procedure and could not move for substitution before
High Court which was hundreds of miles away from his village, the delay should be
condoned. However, a party moving an application must be diligent and careful and the cause
shown must be sufficient. As the appellant died during pendency of the appeal and in absence
of his legal heirs having taken any steps to prosecute the second appeal, the decree passed by
the first appellate Court must be deemed to have become final. Period of limitation for setting
aside abatement order is 60 days after the order of abatement . Where the legal heirs have
shown explanation for delay of 15 days by filing a medical certificate, in ordinary
circumstances, it must be accepted. A Court knows that refusal to condone delay would result
in foreclosing a suit or from putting forth his cause. There is no presumption that delay in
approaching the Court has held, deliberate and accordingly the delay in filing the petition for
setting aside abatement is condoned, abatement is set aside and prayer for substitution
granted. The expression 'sufficient cause' within the meaning of Section 5 of Limitation Act
or Order XXII, Rule 9 of the C.P.C. or any other similar provision should receive a liberal
construction so as to advance substantial justice when no negligence or inaction or want
of bona fide is imputable to a party. While considering the matter, Courts have to strike a
balance between resultant effect of the order it is going to pass upon the parties either way.

Joint Family PropertyDeath of one of co-owners.Where the averment in the plaint really
means that the disputed property was the undivided property of the said three joint owners
who had inherited the father's interest after his death. That apart, even if it is assumed that it
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was coparcenary property there is nothing on record to indicate that any one member or the
eldest male member of the family was acting as a karta of the joint family, on the contrary, it
appears that all the co-owners filed the suit for injunction and have not authorised any one of
them to represent the property as karta of joint family. In these circumstances on death of one
of joint owners no substitution is made the suit shall abate.7

CONCLUSION
The purpose of abatement is to save the time and expense of a trial when the plaintiff's suit
cannot be maintained in the form originally presented. After an action abates, the plaintiff is
7

http://www.manupatrafast.in/pers/Personalized.aspx

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ordinarily given an opportunity to correct errors in his or her Pleading. If the plaintiff still is
unable to allege the facts necessary to state a legal Cause of Action, then the action is
terminated.
With respect to estates, an abatement is a proportional diminution or reduction of the
monetary legacies, a disposition of property by will, when the funds or assets out of which
such legacies are payable are insufficient to pay them in full. The intention of the testator,
when expressed in the will, governs the order in which property will abate. Where the will is
silent, abatement occurs in the following order: intestate property, gifts that pass by the
residuary clause in the will, general legacies, and specific legacies.

In the context of taxation, an abatement is a decrease in the amount of tax imposed.

Abatement of taxes relieves property of its share of the burdens of taxation after the
assessment has been made and the levy of the tax has been accomplished

Not every possible reason for dissatisfaction with another person can be heard by a court.
When the old Common Law form of action governed the procedure followed by courts (as
opposed to state and federal rules of procedure, which now do), only legal wrongs that fit
exactly into one of the allowed categories could be pleaded in court. If the defendant believed
that the plaintiff's complaint did not fit one of these forms, the defendant could respond with
a plea in abatement. A plea in abatement was called a dilatory plea because it delayed the
time when the court would reach the merits of the plaintiff's claim, if ever.

BIBLIOGRAPHY:
BOOKS:
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The archaic term "suit in law" is found in only a small number of laws still in effect
today, such as the Eleventh Amendment to the United States Constitution.
Abrams, Lisa L. (2000) "Civil Litigation The Official Guide to Legal Specialties
National Association for Law Placement, Harcourt Legal & Professional Publications,
Chicago, page 71,
The Lawsuit Survival Guide by Joseph L. Matthews ?.
Dionne, Georges (1992). Foundations of Insurance Economics: Readings in
Economics and Finance. Springer.
Takwani,CK, Civil Procedure Code,7th Ed,EBC
Mulla, Civil Procedure Code, Lexis Nexis
SOURCES:-

http://revistadelconsumidor.gob.mx/?p=30706
http://smallbusiness.chron.com/rules-restaurant-gratuities-36235.html
http://www.irs.gov/pub/irs-pdf/p3148.pdf
http://www.gsa.gov/portal/content/104208#11 GSA
Judith Martin (2010-08-21). "Miss Manners: Tell them; they'll find out anyway
News". The Buffalo News. Retrieved 2012-02-06.
Anastasio, Janet; Bevilaqua, Michelle (2000), The Everything Wedding Checklist,
F+W Publications, p. 21, ISBN 978-1-58062-456-5
http://www.dol.gov/whd/regs/compliance/whdfs15.pdf FLSA US DoL</url>
"Minimum Wages for Tipped Employees". Department of Labor. Retrieved 2012-0926.
http://www.justice.gov/jmd/ethics/generalf.htm
http://culinarytravel.about.com/od/planningculinarytravel/a/Tipping_Guide_Worldwid
e.htm
"Publication 3148, A Guide to Tip Income Reporting for Employees Who Receive Tip
Income". Internal Revenue. Retrieved 20012-09-27.
IRS Bulletin No. 200247, November 25, 2002, presents some examples of tipping
discrepancies that led to some investigations.
"United States V. Fior DItalia, Inc". Law.cornell.edu.

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