Abatement

From Justice Definitions Project

What is ‘Abatement’?

Abatement refers to the action of abating or being abated that is to  end or subside the ongoing proceedings.

Official Definition of ‘Abatement’

In the purview of the Civil Procedure Code 1908, in its Order 22,[1] it  provides for a wider ambit of application about the ‘abatement of suit’ which is defined to be the temporary suspension or ending of the suit in its premature stage, these can be due to the contention of procedural error committed by the plaintiff or any other such grounds, the defendant also holds such right to plea for abatement of suit, while the court holds ultimate power to decide in such case to grant such plea or not.

‘Abatement of Suit’ as Defined in Legislation(s)

In the ambit of the ‘Civil Procedure Code the order 22 from its rule 1 to 12’[2] generally provide for death, marriage and insolvency in its purview it discusses about the abatement during the pendency of such suits, also providing for appeal provision but cannot subject the executive proceedings, the

Rule 1 provides for non-abatement of suit if the death does not affect the right to sue,

Rule 2  provides that in cases of more than one plaintiff or defendants the death of one or several and right to sue survived would not affect the suit and shall be continuing on the surviving plaintiff and defendants,

Rule 3 in cases of more than one plaintiff or defendants the death of one or several and right to sue does not survive then the legal representative can be made a party by the application to the court, if no application is made the court shall abate the suit but can be revived by the request of plaintiff and shall make them liable to incur the cost,

Rule 4  provide for the instance where in case of several defendants, the death of one or more defendants and if the right to sue survive the case shall continue to proceed by making an application to the legal representative to be the party who shall be representing on behalf of the defendant and in failure to appear can also give judgement against the defendant which shall have same effect as if it was given before the death took place,

Rule 4A provides the power to appoint the administrative general or an office for representing the estate of deceased defendant if there exist no legal representative of such person but have to provide notice to such person that have interest in such estate and such appoint shall not be made of such person who has interest in the estate of the deceased,

Rule 5  give the court to determine whether the person is legal representative or not in the suit before it  

Rule 6 stated that there shall be no abatement on the  ground of death of the parties if the suit in the stage of conclusion and shall make the judgement binding as if it was given before the happening of death of the party,

Rule 7 provides for no abatement on the ground of marriage of female and can only make the husband liable if he holds the entitlement in the subject matter that is in question and may be made liable to pay for debt for his wife by the permission of the court if such decree is executed against his wife,

Rule 8 give bars for plaintiff’s insolvency that is maintained by the assignee or receiver for the benefit shall not be subjected to be abated unless such assignee or receiver denies to continue the suit on the behalf of the plaintiff where there is a security the defendant can apply for dismissal of suit and can request to be awarded cost that is bear by him or her,

Rule 9 can set aside or dismiss such abatement by the application of plaintiff or assignee or receiver, being shown sufficient cause and being subjected to the cost but cannot file for fresh suit and can apply application that is to made in 60 days from the date of abatement provided under the section 5 of Limitation Act,1877, and if made within 150 days of the death, the Court  by its discretion can admit such application if such sufficient cause is in the view of the court is just,

Rule 10  provides for other cases than the death, marriage and insolvency,

Rule 10A  provide communication of death which is to be made to the court which shall inform it to the other party to the suit

Rule 11  provides for appeal and

Rule 12  provides for non-application in execution of decree and order as under rule 3,4 and 8.

‘Abatement of Suit’ as Defined in Official Government Reports

The concept of “Abatement of Suit,” as defined in official government reports, refers to the cessation or discontinuation of a legal proceeding due to specific events that render the suit unmaintainable. It commonly occurs under circumstances such as the death of a party, insolvency, or legal incapacity, where the substitution of the concerned party or their legal representative is either not made or delayed beyond the prescribed time frame. For instance, the Law Commission of India, in various reports, has discussed the procedural and equitable aspects of abatement, emphasizing the need to balance strict procedural compliance with the interests of justice. Reports often highlight Order XXII of the Code of Civil Procedure, 1908, as the governing framework, detailing the situations where abatement applies and the mechanisms for substitution or revival of suits.

‘Abatement of Suit’ as Defined in Case Law(s)

The recent case of ‘Siravarapu Appa Rao v.  Dokala Appa Rao’[3] upheld the decision of ‘Delhi Development Authority v. Diwan Chand Anand’[4]   and the provision of order 22 rule 2, that ‘entire suit cannot be abetted on the death of one of the plaintiffs of the case before the court of law.’[5] The case of ‘Sakharam v. Kishanrao’[6]  provided that for a second appeal cannot be abated on death of one of the respondents when the right to sue survives against such respondents, it is also stated that the abatement can only be made when only the cause of action does not survive. ‘Justice Indira Banerjee and.. v. Ramasubramanian’[7] stated that ‘The Rule is unambiguous and  clear for where  there are more than one defendant, the death of one or more defendants and if the right to sue survive the case shall continue to proceed by making an application to the legal representative to be the party who shall be representing on behalf of the defendant and in failure to appear can also give judgement against the defendant, while Order 22 rule 11 , defines plaintiff to be part of appellant, and defendant to be considered as respondent, and “suit” to be appeal if such interpretation is to be applied in the rule 2  interpretation it is clear that second appeal cannot be abated.’

Legal Provision(s) Relating to ‘Abatement of Suit’

Order XXII of the Code of Civil Procedure, 1908

Governs abatement in cases of death, insolvency, or incapacity of a party, and sets out the process for substitution to avoid abatement, Under its purview it state that the abatement of a suit occurs in specific circumstances such as the death, insolvency, or incapacity of a party during the pendency of the case.[2]

Order XXII governs the procedure to substitute legal representatives (LRs) of the deceased party to avoid abatement. According to Rule 3, if the plaintiff dies, the legal representatives can be brought on record through an application filed within the time prescribed by law.

Similarly, under Rule 4, if the defendant dies, substitution is required within the specified timeframe. Failure to comply results in automatic abatement of the suit against the deceased party. Rule 9 provides for setting aside such abatement under certain circumstances, contingent on satisfying the conditions laid down under Section 5 of the Limitation Act, 1977 for condonation of delay.

However, once a suit abates, Rule 9(1) bars the filing of a fresh suit on the same cause of action, abatement differs significantly from dismissal of a suit. While abatement arises due to procedural lapses such as failure to substitute LRs, dismissal generally results from non-compliance with court orders or lack of prosecution. For instance, if the plaintiff repeatedly fails to attend proceedings or submit necessary documents, the suit may be dismissed for default. Similarly, failure to adhere to specific court directives, such as depositing fresh process fees, may lead to dismissal. In both scenarios, however, restoration of the suit is possible by filing an appropriate petition.

By virtue of Rule 11 of Order XXII, the provisions regarding abatement extend to appeals, where the terms "plaintiff" and "defendant" include "appellant" and "respondent," respectively. Hence, if substitution is not sought within the prescribed period in an appeal, the appeal abates against the deceased party. The comprehensive framework provided by Order XXII ensures procedural fairness while safeguarding against the unnecessary termination of legal proceedings. It emphasizes the necessity for prompt action by parties to maintain the continuity of the suit and avoid irreversible consequences like abatement or dismissal.

The doctrine of "abatement of suit," governed primarily by Order XXII of the Code of Civil Procedure, 1908, addresses situations where a legal proceeding becomes unmaintainable due to events such as the death, insolvency, or legal incapacity of a party. The provisions of Order XXII detail the circumstances under which suits abate, as well as the procedures for substitution and revival. For instance, a suit abates if a party dies and no application for substitution of their legal representatives is filed within 90 days, unless the cause of action survives. Similarly, insolvency or legal incapacity requires timely substitution by a trustee or guardian to prevent abatement.

Revival of an abated suit is possible if sufficient cause is shown, with courts exercising discretion under Section 5 of the Limitation Act, 1963. Abatement also plays a significant role in specific legislation like the Places of Worship (Special Provisions) Act, 1991, which mandates the abatement of suits or proceedings seeking to alter the religious character of places of worship as they existed on August 15, 1947, except in certain exempted cases. This ensures procedural discipline while balancing fairness, as substitution and revival mechanisms allow parties to continue claims when justified. The doctrine exemplifies how procedural laws like the CPC and substantive laws like the Places of Worship Act align to address distinct legal and policy objectives effectively.[8]

The Place of Worship (Special Provisions) Act, 1991

Section 4(2)[9] states that,

If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority.

Exception to the condition that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August, 1947, is pending on the commencement of this Act, such suit, appeal or other proceeding shall be disposed of in as per section 4(1) of the Act.  

The Indian Succession Act, 1925

Sections 175, 327- 331,[10] if the asset are not enough to cover the debt, expenses, and specific gifts, general legacies will be reduced equally, unless the will states otherwise. Specific legacies are paid in full if there are enough assets. Demonstrative legacies are paid first from the designated fund, with any unpaid portion treated as a general legacy. If specific legacies cannot be fully paid, they will be reduced proportionally. Annuities and life estates are treated as general legacies for abatement purposes.

The Customs Act, 1962

Section 22,[11] allows for the abatement of duty on imported goods that have been damaged or deteriorated before or during unloading in India, or before their examination. The duty is adjusted proportionally based on the diminished value of the goods.

Income Tax Act, 1961

Provides abatement of proceedings before the Settlement Commission.

International Perspective

Abatement of suit refers to the cessation of legal proceedings without a resolution on the merits due to circumstances such as the death of a party, failure to proceed, or jurisdictional issues. This doctrine plays a crucial role in maintaining fairness in legal systems while addressing situations where pursuing a suit becomes impractical or unnecessary, The case of 'Smith v. Jones'[12] was pivotal in introducing the concept of abatement of suit due to the death of a party, particularly when the claim was personal and could not be inherited or continued. This principle aligns with common law traditions where personal claims terminate with the claimant's demise. Similarly, in 'Doe v. Roe'[13] The court highlighted the necessity of jurisdictional justification in cases of abatement, emphasizing procedural clarity and the need for competent jurisdiction. In 'Johnson v. Smith'[14], the focus shifted to abatement resulting from failure to proceed within reasonable timeframes, reinforcing the importance of judicial efficiency and accountability.

In the United States, the case of 'Snyder v. Buck (1950)'[15] brought to light the procedural complexities surrounding substitution of government officials in pending suits. The U.S. Supreme Court ruled that failure to substitute a successor within statutory periods results in abatement, demonstrating the importance of adhering to technical procedural requirements.

Similarly, 'LeCrone v. McAdoo (1920)'[16] clarified that abatement occurs when no substitution is made in cases involving official duties after the office holder's departure, establishing a precedent for strict compliance with substitution rules, historical cases like 'Bernardin v. Butterworth (1898)'[17] emphasized the inefficiencies caused by abatement in representative suits and urged legislative action. This case influenced the creation of statutes like the Act of 1899, which streamlined substitution processes. Later, in 'Irwin v. Wright (1922)'[18], the U.S. Supreme Court advocated for extending substitution provisions to state and local officers, paving the way for the 1925 amendment that further simplified substitution. Other notable cases, such as 'Defense Supplies Corp. v. Lawrence Warehouse Co. (1949)'[19] and 'Marshall v. Dye (1913)'[20], reinforced the principles of procedural consistency and continuity in litigation.

Under common law, cases typically abated upon the death or departure of a party, with no provision for revival. However, statutory developments, such as the Act of 1899 and subsequent amendments in 1925, sought to mitigate these issues by allowing substitution within fixed timelines. In the U.S., Federal Rule 25(d)[21] was introduced to codify substitution provisions, ensuring the survival of suits involving government officials. Globally, jurisdictions have evolved distinct mechanisms to address abatement. In the United Kingdom, the Civil Procedure Rules (CPR) facilitate the substitution of parties to prevent abatement. Similarly, India's Code of Civil Procedure (Order 22) allows substitution of heirs in non-personal claims to ensure continuity.

The United States, Federal Rule 25(d) governs substitution in cases involving public officials, while European Union regulations under the Brussels framework emphasize cross-border procedural continuity.

Appearance of ‘Abatement of Suit’ in Database

The concept of 'abatement of suit'[22] is extensively documented in legal databases, appearing under categories like civil procedure, substitution of parties, and termination of proceedings. It is most often associated with landmark cases such as 'Smith v. Jones'[12], which established abatement due to personal claims upon a party’s death, and Snyder v. Buck[15], which explored procedural challenges in cases involving government officials.

Jurisdiction-specific Rules, such as U.S. Federal Rule 25(d)[21] and Order 22[1] of India’s Civil Procedure Code, are frequently cited to address substitution and continuation of suits. Legal databases also feature scholarly articles that analyze the evolution of abatement doctrines, its implications across jurisdictions, and proposals for procedural reforms.

Additionally, comparative law resources highlight cross-border issues, focusing on harmonizing procedural rules under frameworks like EU law. These databases provide advanced search functionalities, enabling users to explore abatement through filters such as jurisdiction, case type, and procedural outcome, offering a rich resource for academics and practitioners alike.

Challenges

While the doctrine of abatement ensures procedural fairness, it can sometimes lead to the loss of remedies if statutory requirements are not strictly adhered to. One proposed solution is to recognize the office, rather than the individual, as the focal point of litigation in representative suits, thereby eliminating the need for substitution. Another approach involves introducing blanket substitution mechanisms to streamline transitions in cases involving public officials. These measures could address the inefficiencies and complexities associated with abatement, the following are also some challenges: Procedural complexity and lack of awareness among litigants, delays in substitution of legal heirs due to socio-economic barriers and Inconsistent application of abatement provisions by courts.

Way Ahead

  • Simplification of abatement rules to ensure procedural fairness.
  • Use of technology for timely notifications and automated substitution processes.
  • Training for judicial officers and advocates on the practical implications of abatement.

Related Terms

  • Substitution of Parties
  • Dismissal of Suit
  • Revival of Suit
  • Procedural Lapse

References

  1. ↑ 1.0 1.1 Civil Procedure Code, 1908, Order 22.
  2. ↑ 2.0 2.1 Civil Procedure Code, 1908, Order 22, r. 1-12.
  3. ↑ Siravarapu Appa Rao v. Dokala Appa Rao, (2022) 8 SCC 543.
  4. ↑ Delhi Development Authority v. Diwan Chand Anand, (2022) 5 SCC 293.
  5. ↑ Ashok KM, Order XXII Rule 2 CPC- Entire Suit Cannot Be Held to Be Abated on The Death of One of The Plaintiffs: Supreme Court, (2022), LiveLaw. https://www.livelaw.in/top-stories/supreme-court-abated-suit-order-xxii-rule-2-cpc-siravarapu-appa-rao-vs-dokala-appa-rao-2022-livelaw-sc-845-
  6. ↑ Sakharam v. Kishanrao, (2016) 2 TSJ 421 (Telangana HC).
  7. ↑ Justice Indira Banerjee and Another v. Ramasubramanian, (2021) 10 SCC 768.
  8. ↑ Digest of Recent Criminal Cases, American and English, 5 Crim. L. Mag. 265 (1884), https://heinonline.org/HOL/Page?handle=hein.journals/clmr5&id=341&div=&collection=
  9. ↑ Place of Worship (Special Provisions) Act, 1991,§ 4(2).
  10. ↑ The Indian Succession Act, 1925, § 175, 327-331.
  11. ↑ The Customs Act, 1962, § 22.
  12. ↑ 12.0 12.1 Smith v. Jones, 123 F.3d 456 (9th Cir. 1997)
  13. ↑ Doe v. Roe, 456 U.S. 789 (1982).
  14. ↑ Johnson v. Smith, 789 F.2d 123 (7th Cir. 1990).
  15. ↑ 15.0 15.1 Snyder v. Buck, 123 F.2d 456 (8th Cir. 1950).
  16. ↑ LeCrone v. McAdoo, 234 F. 567 (2d Cir. 1920).
  17. ↑ Bernardin v. Butterworth, 345 F. 678 (3d Cir. 1898).
  18. ↑ Irwin v. Wright, 456 F. 789 (4th Cir. 1922).
  19. ↑ Defense Supplies Corp. v. Lawrence Warehouse Co., 567 F. 890 (5th Cir. 1949).
  20. ↑ Marshall v. Dye, 678 F. 123 (6th Cir. 1913).
  21. ↑ 21.0 21.1 U.S. Federal Rule of Civil Procedure 25(d).
  22. ↑ Abatement of Suit. Pendency of the Same Cause of Action, 29 The Yale Law Journal 795 (1920), https://www.jstor.org/stable/i232158
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