Navigating Abatement: The Role and Substitution of Legal Representatives in Indian Civil Procedure

Introduction

The adversarial system of justice in India, governed largely by the Code of Civil Procedure, 1908 (CPC), places immense importance on the proper constitution of parties to a suit or appeal. The death of a party during the pendency of legal proceedings gives rise to critical procedural questions concerning the continuation of such proceedings. Central to this is the concept of 'abatement', a legal consequence that may terminate or suspend the proceedings if the legal representatives (LRs) of the deceased are not brought on record within the stipulated time. This article undertakes a comprehensive analysis of the law relating to the abatement of suits and appeals upon the death of a party, the definition and role of legal representatives, the conditions for setting aside abatement, and the judicial approach towards balancing procedural rigour with the imperatives of substantive justice, drawing extensively from landmark pronouncements of the Supreme Court of India and various High Courts.

Defining 'Legal Representative' and the Doctrine of Abatement

The Concept of 'Legal Representative' under Indian Law

The term 'legal representative' is defined in Section 2(11) of the CPC as "a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued." This definition is inclusive and broad. As observed in Jagarnath Singh v. Srimati Singhashan Kuer And Others (Patna High Court, 1983), it encompasses not only heirs under personal law but also executors, administrators, and even persons who intermeddle with the estate of the deceased. The Allahabad High Court in Muhammad Zafaryab Khan v. Abdul Razzaq Khan (1928 SCC ONLINE ALL 104) noted that "legal representative" does not necessarily mean all the heirs under the personal law, but means some person who in law represents the estate of a deceased person.

The Doctrine of Abatement under Order XXII CPC

Order XXII of the CPC lays down the procedure for dealing with the death, marriage, and insolvency of parties. Rules 3 and 4 of Order XXII specifically address the scenario of the death of a plaintiff/appellant and defendant/respondent, respectively. If the right to sue survives, and an application is not made within the time limited by law (typically 90 days under Article 120 of the Limitation Act, 1963) to bring the LRs of the deceased on record, the suit or appeal shall abate so far as the deceased party is concerned. The Supreme Court in Union Of India v. Ram Charan (Deceased) Through His Legal Representatives (1964 AIR SC 0 215) and Madan Naik (Dead) By Legal Representatives And Others v. Mst. Hansubala Devi And Others (1983 SCC 3 15) affirmed that abatement is automatic and takes place by operation of law upon the expiry of the prescribed period, without requiring a specific court order to that effect. This was also noted in Girdhari Lal v. Laxminarain (Rajasthan High Court, 1988).

Setting Aside Abatement and Condonation of Delay

The 'Sufficient Cause' Standard

Order XXII Rule 9 CPC provides for the setting aside of an abatement if the applicant proves that they were prevented by "sufficient cause" from continuing the suit or making the application for substitution in time. Similarly, Section 5 of the Limitation Act, 1963, allows for the condonation of delay in filing applications if "sufficient cause" for the delay is demonstrated. The judiciary has consistently advocated for a liberal and justice-oriented interpretation of "sufficient cause." In Ram Nath Sao Alias Ram Nath Sahu And Others v. Gobardhan Sao And Others (2002 SCC 3 195), the Supreme Court, referencing State of W.B v. Administrator, Howrah Municipality (1972) 1 SCC 366 and N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123, emphasized that "sufficient cause" should receive a liberal construction to advance substantial justice, particularly when the delay is not attributable to negligence or mala fides. The focus should be on the legitimacy of the explanation rather than the mere length of the delay. This liberal approach was also endorsed in Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) By Lrs And Others (2008 SCC 8 321) and Mithailal Dalsangar Singh And Others v. Annabai Devram Kini And Others (2003 SCC 10 691), where the Court stressed that procedural obstacles should not impede substantive justice unless there is gross negligence or deliberate inaction.

Procedural Aspects of Setting Aside Abatement

While a formal application is generally required, courts have shown flexibility. In Mithailal Dalsangar Singh (2003 SCC 10 691), the Supreme Court observed that an application for bringing LRs on record, if filed after the period of limitation but containing averments that could constitute "sufficient cause," might be treated as a composite application for setting aside abatement, condonation of delay, and substitution. The Rajasthan High Court in Resham Singh And Another v. Gurbux Singh And Others (Rajasthan High Court, 2020) also suggested that an application under Order XXII Rule 4 CPC could be considered sufficient for the purposes of Order XXII Rule 9 CPC and Section 5 of the Limitation Act. However, the Delhi High Court in DLF Homes Rajapura Pvt. Ltd. v. Late O.P. Mehta And Another (Delhi High Court, 2022), distinguishing Mithailal, emphasized the general necessity of a formal application to set aside abatement, suggesting that a mere application for substitution of LRs after abatement might not suffice without an explicit prayer for setting aside abatement and condoning delay.

Ignorance of Death and Due Diligence

A crucial aspect of "sufficient cause" often revolves around the applicant's knowledge of the party's death. The Supreme Court in Union Of India v. Ram Charan (1964 AIR SC 0 215) clarified that mere ignorance of the respondent's death does not automatically constitute sufficient cause. The appellant must substantiate that they exercised due diligence to ascertain the respondent's status and that their failure to act was not due to negligence or lack of care. Conversely, in Perumon Bhagvathy Devaswom (2008 SCC 8 321), factors such as a change in the management committee of the appellant institution, their unawareness of the pending appeal, and the absence of notification about the respondent's death (referencing Order XXII Rule 10-A CPC, though not explicitly cited in the summary for this case, it is a relevant provision regarding duty of pleader to communicate death) were considered justifiable reasons for delay.

Consequences of Abatement: Partial v. Total Abatement

Abatement in Suits/Appeals Involving Multiple Parties

When a suit or appeal involves multiple plaintiffs/appellants or defendants/respondents, and one of them dies, the question arises whether the proceedings abate entirely or only partially (i.e., concerning the deceased party). The answer often depends on the nature of the rights asserted and the decree passed or sought.

Joint and Indivisible Decrees

The Supreme Court in State Of Punjab v. Nathu Ram (1963 AIR SC 89) laid down a crucial principle: if a decree is joint and indivisible, the abatement of an appeal against one respondent (due to non-substitution of LRs) will lead to the abatement of the entire appeal. This is to prevent the court from passing conflicting or inconsistent decrees – one that has become final against the deceased respondent and another that might be passed against the remaining respondents. This principle was reiterated in Budh Ram And Others v. Bansi And Others (2010 SCC 11 476), where in a suit for joint possession, the appeal was held to have abated in toto. The Himachal Pradesh High Court in JIA LAL v. JIA LAL DECEASED THROUGH LR KAMLJEET (Himachal Pradesh High Court, 2023) also applied this test, focusing on whether the decrees would be incapable of enforcement or mutually self-destructive.

The Role of Order XLI Rule 4 CPC

Order XLI Rule 4 CPC provides a mechanism that can, in certain circumstances, prevent the total abatement of an appeal. It empowers an appellate court to reverse or vary a decree in favour of all plaintiffs or defendants, even if some of them have not appealed, provided the decree appealed from proceeds on any ground common to all. The Supreme Court in Mahabir Prasad v. Jage Ram And Others (1971 SCC 1 265) applied this rule where one of several decree-holders appealed, impleading the other decree-holders as respondents. Upon the death of one such respondent decree-holder (Saroj Devi) and the failure to bring her LRs on record, the Court held that the entire appeal did not abate. The appellate court could still exercise its power under Order XLI Rule 4, as the decree proceeded on a common ground. This distinguishes from situations where the appeal itself abates against a necessary party whose absence makes it impossible to adjudicate effectively. The Allahabad High Court in Baij Nath v. Ram Bharose (Allahabad High Court, 1953) had earlier noted, citing precedents, that Order XLI Rule 4 might not be attracted if an order of abatement is already on record, implying that setting aside abatement would be a prerequisite. However, Mahabir Prasad clarifies its application in specific contexts of appeals by one of several parties on a common ground.

Representation of the Estate

Sufficient Representation of the Estate

A significant principle mitigating the harshness of abatement is that of "sufficient representation." If a plaintiff or appellant, after diligent and bona fide inquiry, ascertains who the LRs of a deceased defendant or respondent are and brings them on record, the estate of the deceased is considered sufficiently represented. In such cases, the suit or appeal does not abate even if it is later discovered that some LRs were omitted, provided there was no fraud or collusion. This principle was articulated by the Supreme Court in Daya Ram v. Shyam Sundari (A.I.R 1965 Supreme Court 1049), as referenced in Baldev Singh And Others v. Hira And Others (Punjab & Haryana High Court, 1971) and Jagarnath Singh v. Srimati Singhashan Kuer And Others (Patna High Court, 1983). The Bombay High Court in Ishwarlal Laxmichand v. Kuber Mohan (1943 SCC ONLINE BOM 10) considered a scenario where the son of a deceased appellant applied for substitution within time, and the question arose whether the appeal abated because the widow, also an LR, was not brought on record. The underlying principle is that the estate should be adequately represented for the purpose of the litigation.

Determination of Legal Representatives (Order XXII Rule 5 CPC)

Order XXII Rule 5 CPC mandates that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or defendant, such question shall be determined by the court. This determination is crucial. In Mahendra Kumar v. Lalchand And Another (2001 SCC 2 619), the Supreme Court highlighted that an appeal could not be dismissed as abated for non-joinder of a person claiming to be an LR under a will without first determining the question of who the actual LRs were, as per Order XXII Rule 5. This was also the crux in Narbdeshwar And Others v. Ram Naresh Chaudhari (Allahabad High Court, 2018). Once the court determines a particular person to be the LR, the suit proceeds, and this determination is generally considered binding for that stage of the proceedings (Muhammad Zafaryab Khan v. Abdul Razzaq Khan (1928 SCC ONLINE ALL 104)).

Special Considerations and Exceptions

Actions Personal to the Deceased (Actio Personalis Moritur Cum Persona)

The right to sue or appeal may not always survive the death of a party. If the cause of action is purely personal to the deceased, the maxim actio personalis moritur cum persona (a personal right of action dies with the person) applies, and the suit or appeal abates. For instance, in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair (Supreme Court Of India, 1985), an appeal seeking to enforce a right to sue for damages for defamation was held to abate upon the appellant's death as the right did not survive him. Similarly, in Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay (1958 AIR SC 253), a suit challenging excommunication, being personal to the plaintiff, was held to have abated upon his death.

Liability of LRs for Debts of Deceased

Legal representatives represent the estate of the deceased. In cases of monetary claims, the LRs are liable to the extent of the assets of the deceased that have come into their hands (Section 50, CPC). The Supreme Court in Pannalal v. Naraini (1952 AIR SC 170) dealt with the liability of sons for their father's pre-partition debts, illustrating how LRs can be proceeded against in execution for the debts of the deceased, to the extent of the estate they inherit.

Appeal Against Sentence of Fine

Section 394(2) of the Code of Criminal Procedure, 1973, provides that every appeal under Chapter XXIX (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. As noted in N.V.JOSEPH v. STATE OF KERALA (Kerala High Court, 2023), citing Ramesan (dead) through Legal representative v. State of Kerala, (2020) 3 SCC 45, an appeal against a sentence of fine does not abate upon the death of the appellant, and the LRs can prosecute it, or the court may examine it on merits even in their absence.

Exemption from Bringing LRs on Record

While the general rule requires substitution, Girdhari Lal v. Laxminarain (Rajasthan High Court, 1988) mentions that exemption from bringing LRs on record is an exception to the general rule of abatement and can be granted by the court when it deems fit, though this power is exercised sparingly.

Procedural Complexities and Judicial Approach

Effect of Abatement Order and Appealability

An order declaring that a suit or appeal has abated, or an order refusing to set aside an abatement, has significant consequences. As held in Madan Naik (1983 SCC 3 15), abatement itself is not an adjudication on merits. An order refusing to set aside an abatement is appealable under Order XLIII Rule 1(k) of the CPC (Maghar Mal & Sons Petitioners, v. The National Fertilizers Ltd. (Punjab & Haryana High Court, 1987)).

The interplay between different proceedings can also cause complexities. For instance, Gopendra Pratap Singh v. Onkar Singh (Board of Revenue, 1984) noted that substitution in the main suit is necessary even if substitution was made in proceedings for setting aside an ex-parte decree under Order IX Rule 13 CPC, as those are not considered a continuation of the suit for all purposes of abatement.

The question of who can be an LR can also be complex. In Smt Kamlawati Gupta v. Kanwari Lal & Ors (Rajasthan High Court, 2011), an issue arose concerning whether a partnership firm could be substituted as an LR, involving provisions of the Indian Succession Act, 1925, regarding the grant of letters of administration.

The issue of impleading LRs in cross-appeals was touched upon in Punjab State, v. Atma Singh (1962 SCC ONLINE P&H 141), where it was argued that bringing LRs on record in a cross-appeal might obviate abatement in the main appeal. While the court considered a Privy Council ruling about introduction at one stage of a suit being for all stages, the application of this principle to distinct appeals (main and cross) requires careful consideration, as generally, each appeal is treated as a separate proceeding requiring due diligence.

Liberal Approach v. Procedural Rigidity

The overwhelming judicial trend, as evidenced by numerous Supreme Court decisions like Mithailal Dalsangar Singh (2003 SCC 10 691), Perumon Bhagvathy Devaswom (2008 SCC 8 321), and Ram Nath Sao (2002 SCC 3 195), is to adopt a liberal interpretation of procedural rules, especially "sufficient cause," to ensure that substantive justice is not defeated by technicalities. However, this liberal approach does not absolve litigants of their duty to act with diligence. The courts strive to strike a balance, ensuring that while meritorious cases are heard, procedural discipline is also maintained to prevent undue delays and prejudice to the opposing party.

Conclusion

The law concerning the abatement of legal proceedings upon the death of a party and the substitution of legal representatives is a critical facet of Indian civil procedure. It seeks to balance the finality of litigation with the right to a fair hearing. While the provisions of Order XXII CPC and the Limitation Act, 1963, prescribe specific timelines and consequences, the Indian judiciary, through a catena of judgments, has consistently favored an interpretation that promotes substantive justice over procedural pedantry. The concept of "sufficient cause" for condoning delay or setting aside abatement is construed liberally, yet litigants are expected to demonstrate due diligence. The distinction between partial and total abatement, particularly in cases involving joint and indivisible rights or decrees, underscores the courts' efforts to avoid contradictory outcomes. Ultimately, navigating the complexities of abatement requires a careful understanding of statutory provisions, judicial precedents, and an unwavering commitment from all stakeholders to ensure that procedural law serves as a handmaiden to justice, not its impediment.