No abatement by the death of parties:

1. Death of plaintiff:

As per Rule 1, Where the sole plaintiff dies, the suit will not abate, if
the right to sue survives. It can be continued by the heirs and the legal
representatives of the deceased plaintiff. It is called substitution. If the
right to sue does not survive, the suit will come to an end.

As per Rule 2, Where one of several plaintiffs dies and the right to sue
survives to the surviving plaintiff or plaintiffs, the court will make an
entry to that effect and proceed with the suit by the surviving plaintiff
or plaintiffs.

As per Rule 3(1), Where one of several plaintiffs dies and right to sue
does not survive to the surviving plaintiff or plaintiffs or where the
sole plaintiff dies and the right to sue survives, the court on an
application by the legal representative of the deceased plaintiff will
make him a party and proceed with the suit.

As per Rule 3(2), Where no such application is made in the period of

limitation (ninety days), the suit shall abate so far as the deceased
plaintiff is concerned. On an application by the defendant, the court
may award costs, which might have been incurred by him in defending
the suit from the estate f the deceased plaintiff.
As per Rule 6, Where the plaintiff dies after hearing and before
pronouncement of judgement, the suit shall not abate.

The same principal will apply in case of death of the plaintiff after
passing of preliminary decree and before final decree.

2. Death of the defendant:

As per Rule 1, Where the sole defendant dies, the suit shall not abate
if the right to sue survives. It can be continued against the heirs and
legal representatives of the deceased defendant.

As per Rule 2, Where one of several defendants dies and the right to
sue survives against the surviving defendant or defendants, the court
shall cause an entry to that effect and proceed with the suit against
the surviving defendant or defendants.

As per Rule 4(1) Where one of several defendants dies and the right to
sue does not survive against the surviving defendant or defendants
alone, or where a sole defendant or sole surviving defendant dies and
the right to sue survives, the court on an application by the legal
representative of the deceased defendant, will make him a party and
proceed with the suit
As per Rule 4(3), Where no such application is made in the period of
limitation (ninety days), the suit shall abate as against the deceased
defendant.

As per Rule 4(4), The court may, if it thinks fit, exempt the plaintiff
from substituting the legal representative of a non-contesting or pro
forma defendant and pronounce judgement notwithstanding the
death of such defendant.

Effect of abatement and dismissal :

(1)
Rule 9(1) provides that Where a suit abates or is dismissed under this
Order, no fresh suit shall be brought on, the same cause of action.
In Sheikh Habibullah v Jamuna Singh, it was held that the dismissal of
a suit on the ground of abatement cannot operate as res judicata
though a second suit on the same cause of action will of course be
barred; the reason being that res judicata essentially arises out of a
decision given on merit while a bar against fresh action is founded on
the provisions of law as laid down in the Code of Civil Procedure.

As per Rule 9(2), The plaintiff or the person claiming to be the legal
representative of a deceased plaintiff may apply for an order to set
aside the abatement or dismissal; and if it is proved that he was
prevented by any sufficient cause from continuing the suit, the Court
shall set aside the abatement or dismissal upon such terms as to costs
or otherwise as it thinks fit.
(2)
As per Rule 9A, Notwithstanding anything contained in rule 9 or any
other law, where the legal representative of a deceased plaintiff files
an application for setting aside abatement or dismissal made under
this Order, within sixty days of abatement or dismissal, the Court may,
in order to avoid delay and expedite disposal, set aside the abatement
or dismissal without requiring the applicant to adduce eviden