Analysis of Order 22 Rule 4(3) CPC

An Analysis of Abatement under Order 22 Rule 4(3) of the Code of Civil Procedure, 1908: Implications and Judicial Interpretation in India

Introduction

The Code of Civil Procedure, 1908 (CPC) provides a comprehensive framework for the conduct of civil proceedings in India. Order 22 of the CPC deals with the consequences of death, marriage, and insolvency of parties on pending suits and appeals. Specifically, Order 22 Rule 4 addresses the procedure in case of the death of one of several defendants or of a sole defendant. Sub-rule (3) of Rule 4 is of critical importance as it mandates the abatement of a suit as against a deceased defendant if no application is made to bring their legal representatives on record within the time prescribed by law. This article seeks to provide a scholarly analysis of Order 22 Rule 4(3) CPC, examining its scope, the legal consequences of abatement, and the judicial interpretations that have shaped its application in Indian jurisprudence. It will also explore the interplay of this provision with other relevant rules, such as Order 22 Rule 4(4) (exemption from substitution) and Order 22 Rule 9 (setting aside abatement).

The Mandate of Order 22 Rule 4(3) CPC

Order 22 Rule 4(1) CPC casts a duty upon the plaintiff, in the event of the death of a defendant, to make an application to the court to make the legal representatives of the deceased defendant a party to the suit. This application must be made within the period prescribed by the Limitation Act, 1963, which, under Article 120, is ninety days from the date of death of the defendant.

Order 22 Rule 4(3) CPC stipulates the consequence of failing to comply with this requirement. It reads:

"Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant."

The language of sub-rule (3) is imperative. The abatement is automatic and does not depend on a formal order from the court declaring the suit to have abated.[1] As observed by the Madras High Court in Elisa And Others v. A. Doss, "on a plain reading of sub-rule (3) of Rule 4 of Order 22, which is imperative in nature, there can be no doubt that the abatement takes place automatically and no separate order therefore is necessary."[2] This principle was also noted by the Jharkhand High Court in Jaideb Hembram And Ors v. Nirmal Hembram And Ors, though it clarified that courts usually make a formal order for record-keeping.[3] The provisions of Order 22 Rule 4 are made applicable to appeals by virtue of Order 22 Rule 11 CPC.[4]

Judicial Interpretation of Abatement under Rule 4(3)

Consequences of Abatement

The primary consequence of abatement under Order 22 Rule 4(3) is that the suit ceases to exist in the eyes of the law as against the deceased defendant. This has several ramifications:

1. Abatement as against the Deceased Defendant

The suit abates specifically against the deceased defendant. Whether this abatement affects the entire suit or appeal depends on the nature of the suit and the decree passed or sought.

2. Effect on the Entire Suit/Appeal: Joint and Indivisible Decrees

If the suit or appeal involves a joint and indivisible decree or claim, the abatement of the suit/appeal against one defendant/respondent may lead to the abatement of the entire suit/appeal. The Supreme Court in State Of Punjab v. Nathu Ram held that if the decree is joint and indivisible, the appeal against the other respondents also cannot proceed because of the inconsistency that might arise if the appeal were allowed against them.[5] The Court reasoned that if the appeal abates against one respondent, the decree in their favour becomes final, and the appellate court cannot modify this final decree without their legal representatives being on record. This principle was reiterated in Budh Ram And Others v. Bansi And Others.[6]

However, the Supreme Court in Sardar Amarjit Singh Kalra (Dead) By Lrs. And Others v. Pramod Gupta (Smt) (Dead) By Lrs. And Others clarified that if the claims of the parties are distinct, separate, and independent, even if consolidated for convenience, the abatement of one appellant's appeal does not affect the others.[7] The court emphasized that procedural laws should facilitate justice, and where claims are severable, the abatement against one party should not prejudice the distinct claims of others.

3. Decree Passed Against a Dead Person

A decree passed in ignorance of the death of a defendant, without their legal representatives being brought on record and without any exemption under Order 22 Rule 4(4) CPC, is a nullity so far as the deceased defendant and their legal representatives are concerned. This was affirmed in Elisa And Others v. A. Doss[2] and by the Supreme Court in T. Gnanavel v. T.S Kanagaraj And Another.[8]

Setting Aside Abatement (Order 22 Rule 9 CPC)

While Order 22 Rule 4(3) provides for automatic abatement, Order 22 Rule 9 CPC offers a remedy. It allows the plaintiff (or appellant) to apply for an order to set aside the abatement if they can prove that they were prevented by "sufficient cause" from continuing the suit (i.e., from making an application for substitution in time). Such an application must be made within 60 days of the abatement (Article 121, Limitation Act, 1963).

The Supreme Court in Union Of India v. Ram Charan (Deceased) Through His Legal Representatives held that mere ignorance of the death of the respondent, without evidence of lack of negligence, does not constitute "sufficient cause" to set aside abatement.[9] The appellant must demonstrate due diligence. Conversely, in Mithailal Dalsangar Singh And Others v. Annabai Devram Kini And Others, the Supreme Court advocated for a liberal interpretation of requests to set aside abatement, emphasizing that procedural obstacles should not impede substantive justice unless there is gross negligence or deliberate inaction.[10] This liberal approach is also echoed in cases like Morasa Anjaiah v. Kondragunte Venkateswarlu (Died) And Others[11] and Mahendra & Ors. v. Rawata Ram (By L.Rs) & Anr.[12]

It is important to note that abatement itself is not an adjudication on the merits of the case. As held in Madan Naik (Dead) By Legal Representatives And Others v. Mst. Hansubala Devi And Others, abatement is a procedural termination.[13] An order refusing to set aside abatement is appealable under Order 43 Rule 1(k) CPC.[13]

Interplay with Order 22 Rule 4(4) CPC – The Exemption Clause

Order 22 Rule 4(4) CPC provides an exception to the general rule of substitution. It states:

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

This provision is intended to shorten litigation where a defendant has shown no interest in contesting the suit.[14] If an exemption is granted under this sub-rule, the rigour of sub-rule (3) regarding abatement does not apply.[14]

However, the timing of seeking and granting this exemption is crucial. The Supreme Court in T. Gnanavel v. T.S Kanagaraj And Another[8] and subsequently in Budh Ram And Others v. Bansi And Others[6], clarified that such exemption must be sought by the plaintiff and granted by the court *before* the judgment is pronounced. If the judgment is pronounced without bringing the legal representatives on record and without a prior order of exemption under Rule 4(4), the decree passed against the deceased defendant is a nullity. This position was recently reiterated by the Himachal Pradesh High Court in JOGINDER AND OTHERS v. LOHARI DEVI AND OTHERS, citing Supreme Court precedents.[15] The Andhra Pradesh High Court in Bada Kristappa Alias Krishna Reddy v. Maya Kuntla Narasimha Reddy & Others had observed that the power to exempt could be exercised even after abatement had taken place, but this must be read in consonance with the Supreme Court's mandate that the exemption itself must precede the judgment.[14]

Procedural Aspects and Challenges

Several procedural nuances arise in the context of Order 22 Rule 4(3). The counsel for a party has a duty under Order 22 Rule 10A CPC to inform the Court about the death of that party.[16]

Courts have shown a tendency to adopt a justice-oriented approach. For instance, in Sulochana Jain And Another v. Hetram Shri Ram Pratap And Others, the Madhya Pradesh High Court observed that even if a formal application under Order 22 Rule 9 CPC for setting aside abatement is not filed, an application under Section 5 of the Limitation Act explaining the delay could be considered for that purpose, as non-filing of a specific application is often a lawyer's mistake for which the litigant should not suffer, especially if no prejudice is caused to the adverse party.[17] However, it must be remembered that parties cannot circumvent the provisions of Order 22 by resorting to Order 1 Rule 10 CPC for impleading legal representatives after abatement, as highlighted in Morasa Anjaiah v. Kondragunte Venkateswarlu (Died) And Others.[11]

Analysis of Key Reference Materials

The jurisprudence surrounding Order 22 Rule 4(3) CPC has been significantly shaped by landmark Supreme Court decisions.

State Of Punjab v. Nathu Ram[5] is foundational for understanding the impact of abatement on joint and indivisible decrees. It established that if a decree cannot be bifurcated, abatement against one respondent can lead to the abatement of the entire appeal to avoid conflicting decrees.

Union Of India v. Ram Charan[9] clarified the standard of "sufficient cause" required under Order 22 Rule 9 CPC to set aside abatement, emphasizing that mere ignorance of death is insufficient without proof of due diligence. This underscores the seriousness of the consequence stipulated in Rule 4(3).

Madan Naik v. Mst. Hansubala Devi[13] is crucial for distinguishing abatement as a procedural termination from an adjudication on merits, thereby protecting substantive rights from being foreclosed by procedural lapses that are later rectified.

Mithailal Dalsangar Singh v. Annabai Devram Kini[10] tempered the strictness by advocating a liberal approach in construing "sufficient cause" for setting aside abatement, prioritizing substantive justice.

Sardar Amarjit Singh Kalra v. Pramod Gupta[7] provided an important counterpoint to Nathu Ram by holding that in cases of separable and distinct claims, abatement against one party does not necessarily lead to the abatement of the entire proceeding for others.

The cases of T. Gnanavel v. T.S Kanagaraj[8] and Budh Ram And Others v. Bansi And Others[6] are pivotal for their interpretation of Order 22 Rule 4(4), particularly the requirement that exemption from substitution must be granted *before* the pronouncement of judgment to prevent the decree against the deceased from being a nullity.

Conclusion

Order 22 Rule 4(3) of the Code of Civil Procedure, 1908, plays a vital role in ensuring that legal proceedings are continued by or against the rightful legal representatives of deceased parties. The automatic abatement prescribed by this sub-rule for failure to substitute legal representatives within the statutory period underscores the importance of diligence on the part of the plaintiff or appellant. While the consequences of abatement can be severe, particularly in cases involving joint and indivisible rights, the CPC provides mechanisms for redress, such as setting aside abatement under Order 22 Rule 9 for "sufficient cause," and a limited exemption under Order 22 Rule 4(4) in specific circumstances.

The judiciary in India has interpreted these provisions by attempting to strike a balance between procedural compliance and the pursuit of substantive justice. While emphasizing the need for timely action, courts have also shown a willingness to adopt a liberal approach in setting aside abatement where genuine reasons for delay are established and where the interest of justice so demands. Nevertheless, the fundamental principle remains that a decree passed against a deceased person, without their legal representatives being on record or without a valid exemption under Rule 4(4), is generally a nullity. This necessitates careful adherence to the procedural requirements of Order 22 to ensure the finality and enforceability of judicial pronouncements.

References

  1. Elisa And Others v. A. Doss, AIR 1992 Mad 159.
  2. Ibid.
  3. Jaideb Hembram And Ors v. Nirmal Hembram And Ors, 2017 SCC OnLine Jhar 2185.
  4. FAJILA BIBI AND ORS v. KASEM GAZI AND ORS, (Calcutta High Court, CO 148 of 2020, decided on 10.01.2024, though reference mentions 2025 likely as a typo for a future date, the context implies a decided matter).
  5. State Of Punjab v. Nathu Ram, AIR 1962 SC 89.
  6. Budh Ram And Others v. Bansi And Others, (2010) 11 SCC 476.
  7. Sardar Amarjit Singh Kalra (Dead) By Lrs. And Others v. Pramod Gupta (Smt) (Dead) By Lrs. And Others, (2003) 3 SCC 272.
  8. T. Gnanavel v. T.S Kanagaraj And Another, (2009) 14 SCC 294.
  9. Union Of India v. Ram Charan (Deceased) Through His Legal Representatives, AIR 1964 SC 215.
  10. Mithailal Dalsangar Singh And Others v. Annabai Devram Kini And Others, (2003) 10 SCC 691.
  11. Morasa Anjaiah v. Kondragunte Venkateswarlu (Died) And Others, AIR 1993 AP 30.
  12. Mahendra & Ors. v. Rawata Ram (By L.Rs) & Anr., 2009 SCC OnLine Raj 518.
  13. Madan Naik (Dead) By Legal Representatives And Others v. Mst. Hansubala Devi And Others, (1983) 3 SCC 15.
  14. Bada Kristappa Alias Krishna Reddy v. Maya Kuntla Narasimha Reddy & Others, 1980 SCC OnLine AP 20 : AIR 1981 AP 104.
  15. JOGINDER AND OTHERS v. LOHARI DEVI AND OTHERS, (Himachal Pradesh High Court, RSA No. 176 of 2023, decided on 08.01.2024).
  16. M/S. Rashtriya Yuya Udhyog v. Smt. Dheeraj Kanwar, 2000 SCC OnLine Raj 57.
  17. Sulochana Jain And Another v. Hetram Shri Ram Pratap And Others, 2023 SCC OnLine MP 1791.
  18. Angadi Srinivas, Dead By L.Rs. v. M. Girija, (Karnataka High Court, R.S.A.No.733/2004, decided on 13.06.2016). [This case primarily reiterates Nathu Ram].