Write in short what procedure will be adopted in cases of Order XXII of Civil Procedure Code

Question: Write in short what procedure will be adopted in the following cases:-

(1) Where one of several plaintiffs or defendants dies and right to sue survives.

(2) Where one of several plaintiffs or sole plaintiff dies.

(3) Where one of several defendants or sole defendant dies.

(4) Where there is no legal representative.

Find the answer to the mains question only on Legal Bites. [Write in short what procedure will be adopted in cases of Order XXII of Civil Procedure Code.]

Answer

(1) Where one of several plaintiffs or defendants dies and right to sue survives.

Order XXII R 2 applies wherein any one out of several plaintiffs or defendants dies, and where the right to sue survives as against the surviving plaintiffs/plaintiff alone or surviving defendants/ defendant alone. In such a case, the provision mandates that the Court will add to the record that such event has occurred and the suit shall proceed at the instance of the plaintiffs/plaintiff alone or surviving defendants/ defendant alone.

As illustrated above in the N. Jayaram Reddi case, [(1979) 3 SCC 578] the survival of the right to sue and the discretion of the surviving parties to continue with the suit is the critical component here. This was emphasized by Justice Shingal in that case, when he stated that it is the discretion of the legal representative to question whether the decree was a nullity or fight the appeal on merits.

(2) Where one of several plaintiffs or sole plaintiff dies.

(3) Where one of several defendants or sole defendant dies.

O.22 Rule 3 and Rule 4 lay down the entire procedure in case of death of one of several plaintiffs or sole plaintiffs; and of several defendants or sole defendant. In both these rules, in the event of such contingency arising, an application must be made either under Rule 3(1) or under Rule 4(1) to bring the legal representative of the deceased on the record within 90 days from the date of death of deceased.

In case such application is not made in either case, the suit will abate. In fact, in case no application is made, the suit would abate without any order of the court. This is because abatement does not require any adjudication or declaration by courts- it occurs by operation of the law itself.

In the case of Rule 3, when the suit stands abated, the defendant can on application to the court, be awarded costs incurred in defense of the suit, to be received from the estate of the deceased plaintiff.

In the case of Rule 4, there is a discretionary provision for the Court to exempt the plaintiff from substituting the legal representative of a defendant in case the latter has not filed his written statement or failed to appear or contest at his hearing. In case the aforementioned scenarios arise, judgment may be pronounced against the defendant, regardless of the fact of his/her death.

Further, in case of abatement of a suit under Rule 4, an application to set aside said abatement must be made within 60 days. However, Rule 4 also provides for the Court to consider the ignorance of the plaintiff as to the death of the defendant as a sufficient cause for not submitting an application or submitting an application after the appropriate limitation period.

(4) Where there is no legal representative.

Initially, CPC had no provision provided for a situation where there was no legal representative for the deceased party. In such cases, the suit abated without proceeding any further. However, in 1976, the CPC was amended and Rule 4A was added to Order XXII which deals with this situation in detail.

According to Rule 4A, if the deceased party has no legal representative or any legal heir, the court is left with two options.

First, one of the parties to the suit who are alive may file an application before the court to continue the proceedings in the absence of the deceased and any order made against or in favour of the deceased party may be executed according to the orders of the court.

Second, the court may appoint an administrator-general or any other officer to represent the estate of the deceased person in the ongoing case.

The administrator or officer, as the case may be, shall have the right to respond and strive to defend his case for the person he is representing. If an order is made by the court, it shall have an equally binding effect on the deceased’s estate as it would have had if the person was alive. It means that any cost or damages ordered by the court shall be payable from the value of the estate of the deceased.

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