Abatement of Suit

Nature and scope of abatement of suit

‘Abatement’ means ‘discontinuation’, destruction, or elimination. The word

‘abatement’ is most often used for the termination of a lawsuit because of the
death of a party. Under the common law, a lawsuit abated automatically
whenever a party dies. Thus, abatement of suit is the cessation of a particular civil
judicial proceeding because of some fact not affecting the merits of the
controversy. The commonest grounds for abatement are the pendency of another
suit or the death of a party. To abate a later suit, the pending suit must be in the
same jurisdiction, with the same parties and legal issues.

Object of abatement

The object of abatement is to save the time and expense of a trial when the
Plaintiff's suit cannot be maintained in the form originally presented. After an
action abates, the Plaintiff is ordinarily given an opportunity to correct errors in
his or her Pleading. If the Plaintiff still is unable to allege the facts necessary to
state a legal cause of action, then action is terminated.

A personal action dies with the person, is derivation and source of Latin
maxim.Actio personalis moritur cum persona. Right to sue, other than closely
connected with the individuality of the deceased, always survives to or against his
legal representatives. Order 22 deals with the creation, assignment or devolution
of interest during the pendency of suits. Such creation, assignment or devolution
may arise in the following circumstances. They are;
Rules 1-6 Death of a party

Rule 7 Marriage of a party

Rule 8 Insolvency of a party

Rule 9 Assignment of interest

Sardar Amarjit Singh Kalra and Others v. Pramod Gupta, (2003) 3 SCC 272, it has
been submitted that the laws of procedure are meant to regulate effectively and
aid the object of doing substantial and real justice; rights should not be foreclosed
as procedure is always viewed as a handmaid of justice and not hamper the cause
of justice.

Amba Bai v. Gopal, AIR 2001 SC 2003, it has been held that the decree against a
dead person was a nullity. The concept of abatement is known to civil law. If a
party to a proceeding either in the Trial Court or any appeal or revision dies and
the right to sue survives or a claim has to be answered, the heirs and legal
representatives of the deceased party would have to be substituted and failure to
do so would result in abatement of proceedings.

Banwari Lal v. Balbir Singh AIR 2015 SC 3573, it has been observed that after the
death of Appellant no steps were taken for substitution in the first appeal. In
second appeal, application for impleadment of his heirs was filed under Order 1
Rule 10 of the Code. The High Court rejected it on the ground that procedure
prescribed by Order 22 had not been followed. The Supreme Court held that the
view taken was too technical and order on the substitution application should
have been passed by the High Court.
Partial abatement

An abatement of suit may be total or partial. If the entire suit is founded on tort
or on personal action, the suit would debate as a whole on the death of the
Plaintiff or the Defendant, as the case may be.

M. Veerappa v. Evelyn Sequeira and Others, AIR 1988 SC 506, it has been held
that if the entire suit claim is founded on torts the suit would undoubtedly abate.
If the action is founded partly on torts and partly on contract then such part of
the claim as relates to torts would stand abated and the other part would survive.
If the suit claim is founded entirely on contract then the suit has to proceed to
trial in its entirety and be adjudicated upon.