Case Note & Summary
The petitioner, Sri Chetan P Tayal, who was the defendant No.2 in O.S. No.96/2015 (originally O.S. No.19/2010) pending before the Additional Senior Civil Judge and JMFC at Srirangapatana, filed a writ petition under Article 227 of the Constitution of India seeking to quash the orders dated 19.11.2015 and 14.07.2016 passed by the trial court and to declare that the suit had abated. The suit was originally filed in 2010 by one Smt. Narasamma (since deceased) for specific performance of a contract. The plaintiff died on 18.08.2011. The suit was re-filed in 2015 after being returned for defects. The petitioner contended that since the plaintiff died before the re-filing, the suit abated as the legal representatives were not brought on record within the period of limitation. The respondents, who are the legal representatives of the deceased plaintiff, opposed the petition. The High Court examined the records and found that the suit was originally instituted in 2010, and the plaintiff died in 2011. The suit was re-filed in 2015 after the death. The Court held that the question of abatement under Order 22 of the Code of Civil Procedure, 1908 does not arise because the suit was not pending at the time of the plaintiff's death; rather, it was re-filed after her death. The Court further observed that the petitioner failed to prove that the legal representatives were not brought on record within the prescribed period. The trial court had already impleaded the legal representatives and the suit was proceeding. The Court also noted that even if there was any abatement, the petitioner could have applied to set it aside within 60 days under Article 120 of the Limitation Act, 1963, but no such application was made. Consequently, the writ petition was dismissed as devoid of merits.
Headnote
A) Civil Procedure Code - Abatement of Suit - Order 22 Rule 4 CPC - Death of Plaintiff Before Institution of Suit - The petitioner-defendant sought declaration that the suit abated as the original plaintiff died before the suit was filed. The Court held that the suit was originally filed in 2010, re-filed in 2015, and the plaintiff died in 2011. Since the suit was re-filed after the plaintiff's death, the question of abatement under Order 22 does not arise as the suit was not pending at the time of death. The petitioner failed to prove that the legal representatives were not brought on record within limitation. (Paras 2-6)
B) Civil Procedure Code - Burden of Proof - Abatement - Order 22 Rule 9 CPC - The party alleging abatement must prove that the legal representatives were not brought on record within the prescribed period. The Court found that the petitioner did not discharge this burden, as the trial court had already impleaded the legal representatives and the suit was proceeding. (Paras 5-6)
C) Civil Procedure Code - Limitation - Setting Aside Abatement - Article 120 of Limitation Act, 1963 - The Court noted that even if there was any abatement, the petitioner could have applied to set it aside within 60 days from the date of knowledge, but no such application was made. The petition was dismissed as devoid of merits. (Para 6)
Issue of Consideration
Whether the suit O.S. No.96/2015 is liable to be declared as abated on the ground that the original plaintiff died prior to the filing of the suit and the legal representatives were not brought on record within the prescribed period of limitation.
Final Decision
The writ petition is dismissed as devoid of merits. The orders dated 19.11.2015 and 14.07.2016 passed by the trial court are upheld. No order as to costs.
Law Points
- Abatement of suit
- Order 22 Rule 4 CPC
- burden of proof
- death of party before institution of suit
- re-filing of suit after abatement
- limitation for setting aside abatement
Case Details
2020 LawText (KAR) (09) 28
Writ Petition No.61979 of 2016 (GM-CPC)
Dr. Justice K. Manmadha Rao
Sri B.N. Mahesh Chandra for Sri Mohan Bhat (for petitioner)
Smt Narasamma (since dead by LRs) and Sri Shive Gowda
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution of India challenging orders of the trial court and seeking declaration of abatement of a suit for specific performance.
Remedy Sought
Petitioner (defendant No.2) sought to quash the orders dated 19.11.2015 and 14.07.2016 passed by the trial court and to declare that O.S. No.96/2015 is abated.
Filing Reason
Petitioner contended that the original plaintiff died on 18.08.2011 before the suit was re-filed in 2015, and the legal representatives were not brought on record within the period of limitation, causing the suit to abate.
Previous Decisions
The trial court had passed orders on 19.11.2015 and 14.07.2016 (Annexure-F) which were challenged in the writ petition. The trial court had impleaded the legal representatives and the suit was proceeding.
Issues
Whether the suit O.S. No.96/2015 is liable to be declared as abated on the ground that the original plaintiff died prior to the re-filing of the suit and the legal representatives were not brought on record within the prescribed period of limitation.
Whether the petitioner has discharged the burden of proving that the suit has abated under Order 22 of the Code of Civil Procedure, 1908.
Submissions/Arguments
Petitioner argued that the original plaintiff died on 18.08.2011, and the suit was re-filed in 2015 after her death. Since the legal representatives were not brought on record within the period of limitation, the suit abated.
Respondents (legal representatives) opposed the petition, contending that the suit was originally filed in 2010 and was re-filed after defects were cured. The trial court had already impleaded them and the suit was proceeding.
Ratio Decidendi
The question of abatement under Order 22 of the Code of Civil Procedure, 1908 does not arise when the plaintiff dies before the suit is re-filed, as the suit was not pending at the time of death. The burden of proving that legal representatives were not brought on record within limitation lies on the party alleging abatement, and the petitioner failed to discharge that burden.
Judgment Excerpts
The present writ petition is filed to quash the order dated 19.11.2015 and order dated 14.07.2016 vide Annexure-F in O.S.No.96/2015 on the file of the Additional Senior Civil Judge and JMFC at Srirangapatana and declare that O.S.No.96/2015 pending on the file of Additional Senior Civil Judge and JMFC at Srirangapatana is abated.
The petitioner herein is arraigned as defendant No.2 in O.S. No.96/2015 (Old No.O.S.No.19/2010) on the file of the Additional Senior Civil Judge and JMFC, Srirangapatana.
The suit was originally filed in the year 2010. The plaintiff died on 18.08.2011. The suit was re-filed in 2015. Therefore, the question of abatement does not arise.
Procedural History
The suit O.S. No.19/2010 was originally filed in 2010 by Smt. Narasamma for specific performance. The plaintiff died on 18.08.2011. The suit was re-filed as O.S. No.96/2015 in 2015 after being returned for defects. The trial court passed orders on 19.11.2015 and 14.07.2016 impleading the legal representatives. The petitioner-defendant No.2 filed the present writ petition under Article 227 on 19.12.2016 challenging those orders and seeking declaration of abatement. The writ petition was heard and reserved for orders on 04.09.2025 and pronounced on 25.09.2025.
Acts & Sections
- Code of Civil Procedure, 1908: Order 22 Rule 4, Order 22 Rule 9
- Limitation Act, 1963: Article 120
- Constitution of India: Article 227
