Case Note & Summary
The case arises from a suit filed in 1993 by two plaintiffs, Sitabai and Mathurabai, seeking declarations regarding the invalidity of certain Release Deeds and a Development Agreement. Sitabai died in 1992, and her heirs were initially brought on record but later transposed as defendants. Mathurabai, the sole surviving plaintiff, died on 16 August 2009. No application was made by her heirs to be brought on record within the prescribed period, and the suit abated. Subsequently, Defendant No.29 (one of the heirs of the first plaintiff) filed a Chamber Summons seeking transposition of Defendants 29 and 30 as plaintiffs, setting aside abatement, and condonation of delay of 473 days. The learned Single Judge allowed the Chamber Summons. The appellant, a defendant in the suit, appealed against this order. The High Court held that once a suit abates under Order XXII CPC, it cannot be revived by invoking Order I Rule 10 CPC. The proper course is for the legal representatives of the deceased plaintiff to apply for setting aside abatement under Order XXII Rule 9 CPC. Since Defendants 29 and 30 were not the legal representatives of the deceased plaintiff Mathurabai, they could not seek transposition. The appeal was allowed, setting aside the order of the Single Judge.
Headnote
A) Civil Procedure - Abatement of Suit - Order XXII Rule 3 CPC - Once a suit abates due to the death of the sole plaintiff and failure of legal representatives to apply within 90 days, the suit cannot be revived by transposing defendants as plaintiffs under Order I Rule 10 CPC. The proper remedy is for the legal representatives to apply for setting aside abatement under Order XXII Rule 9 CPC with a condonation of delay application. (Paras 7-9) B) Civil Procedure - Transposition of Parties - Order I Rule 10 CPC - Order I Rule 10 CPC cannot be used to circumvent the specific provisions of Order XXII CPC relating to abatement. Transposition is permissible only when the suit is pending and not after it has abated. (Paras 8-9) C) Civil Procedure - Legal Representatives - Order XXII Rule 3 CPC - The heirs of the deceased plaintiff must apply to be brought on record within 90 days of death. Failure results in abatement, and only the legal representatives can apply to set aside abatement under Order XXII Rule 9 CPC. Defendants who are not legal representatives cannot seek transposition to continue the suit. (Paras 3, 7-9)
Issue of Consideration
Whether the provisions of Order I Rule 10 of the Code of Civil Procedure, 1908 can be invoked to transpose defendants as plaintiffs after the suit has abated due to the death of the sole plaintiff and failure of her heirs to come on record.
Final Decision
Appeal allowed. The order of the learned Single Judge dated 4 May 2012 is set aside. The Chamber Summons stands dismissed. No order as to costs.
Law Points
- Abatement of suit under Order XXII CPC cannot be circumvented by Order I Rule 10 CPC
- Transposition of parties not permissible after abatement
- Legal representatives must apply for setting aside abatement within limitation
