Order XXII Rule 9 CPC: Effect of Abatement or Dismissal
Order XXII Rule 9 of the Code of Civil Procedure, 1908 (CPC) explains the consequences when a civil suit abates or is dismissed under Order XXII. It also provides a remedy to set aside the abatement or dismissal if sufficient cause prevented the suit from continuing.
Text and meaning of Order XXII Rule 9 CPC
Rule 9(1): Effect of abatement or dismissal
Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
Meaning: A plaintiff cannot avoid the procedural consequences of abatement or dismissal under Order XXII simply by filing a new suit founded on the same cause of action. The rule concerns abatement or dismissal under this Order, not every kind of dismissal in civil proceedings.
Rule 9(2): Setting aside abatement or dismissal
The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent 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.
Meaning: The persons specified in Rule 9(2) may request restoration. The court examines whether there was sufficient cause preventing continuation of the suit and may impose appropriate terms, including costs. An application should explain the relevant facts and be supported by available evidence.
Rule 9(3): Application of Section 5 of the Limitation Act
The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2).
Current-law context: The statutory wording historically refers to the Limitation Act, 1877. That enactment has been repealed; the corresponding law in force is the Limitation Act, 1963. Section 5 of the 1963 Act governs extension of the prescribed period for eligible applications where sufficient cause for delay is established. The original wording is reproduced above to preserve the CPC provision; it should not be read as meaning the 1877 Act remains in force.
Explanation to Rule 9: Defence in a later suit
Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.
Meaning: Although Rule 9(1) restricts a fresh suit on the same cause of action, the same underlying facts may still be relied on as a defence in a later suit. A defence and a fresh claim are not the same thing.
What is abatement under the CPC?
Abatement is the procedural termination of a suit, or part of it, under the applicable provisions of Order XXII, typically when a party dies and the required steps to bring legal representatives on record are not taken within the prescribed period. Whether abatement occurs, and to what extent, depends on the right to sue, the parties and the relevant procedural rules.
Rule 3 addresses death of a plaintiff, while Rule 4 concerns death of a defendant. Rule 8 deals with insolvency of a plaintiff. Rule 9 provides the consequences and a route to relief.
Limitation periods: substitution and setting aside abatement
| Step | Provision | Ordinary limitation |
|---|---|---|
| Application to bring legal representatives of a deceased plaintiff or defendant on record | Article 120, Limitation Act, 1963 | 90 days from the date of death |
| Application to set aside abatement | Article 121, Limitation Act, 1963 | 60 days from the date of abatement |
| Request to excuse delay in an eligible application | Section 5, Limitation Act, 1963 | No automatic extension; sufficient cause must be shown |
The applicable computation depends on the facts and governing procedural law. The 60-day period under Article 121 is counted from abatement, not necessarily from the date of death. For a case in which substitution was required and no application was made within the ordinary 90-day period, abatement generally follows expiry of that period. State amendments, special procedures and judicial orders may affect an individual case.
How to apply to set aside abatement
- Identify the reason for abatement or dismissal: Review the case record and the relevant provision of Order XXII.
- Prepare an application under Rule 9(2): State the circumstances preventing continuation and request that abatement or dismissal be set aside.
- Seek substitution where necessary: File the appropriate application under Rule 3 or Rule 4 to bring legal representatives on record.
- Address limitation: If the application is late, seek condonation under Section 5 of the Limitation Act, 1963, explaining the entire relevant delay.
- Provide supporting material: Attach the death certificate, relevant case documents, affidavit and other evidence as appropriate.
- Attend the hearing: The court considers sufficient cause, any objections and appropriate conditions, including costs.
Restoration is not automatic merely because an application is filed. The court must be satisfied that the legal conditions are met.
Practical examples
Example 1: A sole plaintiff dies while a property suit is pending. If the right to sue survives but legal representatives are not brought on record within the prescribed time, the suit may abate. A person claiming to be a legal representative may seek to set aside the abatement and request substitution, explaining any delay.
Example 2: An insolvent plaintiff's assignee or receiver declines to continue the proceedings or to furnish security as required under Rule 8. If the suit is dismissed under Order XXII, the assignee or receiver may seek relief under Rule 9(2), subject to sufficient cause.
Example 3: A suit has abated under Order XXII. The plaintiff cannot simply bring another suit on the same cause of action to bypass Rule 9(1). The Explanation, however, does not prevent relevant facts from being raised as a defence in another suit.
Related provisions and official legal sources
- Code of Civil Procedure, 1908 - India Code (see Order XXII in the First Schedule)
- Limitation Act, 1963 - India Code (see Section 5 and Articles 120-121 of the Schedule)
- Order XXII Rule 5 - Determination of legal representative
- Order XXII Rule 6 - Death after conclusion of hearing
- Order XXII Rule 10 - Assignment during suit
- Order XXII Rule 11 - Application to appeals
Frequently asked questions
Can a fresh suit be filed after abatement under Order XXII?
Rule 9(1) bars a fresh suit on the same cause of action where the earlier suit abated or was dismissed under Order XXII. Relief may instead be sought under Rule 9(2), subject to its requirements.
What is sufficient cause for setting aside abatement?
Sufficient cause depends on the circumstances proved before the court. The applicant must explain why continuation of the suit was prevented and, if filing late, explain the delay.
What is the time limit to set aside abatement?
Article 121 of the Limitation Act, 1963 ordinarily prescribes 60 days from the date of abatement. Section 5 may permit condonation of delay upon sufficient cause.
Does Order XXII Rule 9 apply to appeals?
Order XXII Rule 11 generally extends the relevant provisions of the Order to appeals, with the modifications contemplated by that rule.
This article is a general explanation of the central statutory provisions. Check the current statutory text, applicable High Court rules, local amendments and relevant case law for a particular proceeding.