Abatement implies a suspension or termination of proceedings in an action for want of proper parties or owing to defect in the writ or service.
Formerly almost every change of interest after the commencement and before the termination of proceedings caused an abatement or termination. But now a cause or matter shall not be abated by the marriage, death or bankruptcy of any of the parties if the cause of action survives, nor shall It abate by change in title during the pendency of the suit.
In India, abatement of proceedings is governed by Order XXII of the Code of Civil Procedure. Rule I provide that the death of the plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
thumbs.dreamstime.com
ADVERTISEMENTS:
“Right to sue” means the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death. The cause of action in the original and revived suits must be the same and no fresh cause of action can be imported into the revived suit.
As to cases in which the right to sue survives the relevant provisions are to be found in India in Section 37 of the Indian Contract Act and Section 306 of the Indian Succession Act. Section 37 of the Indian Contract Act provides that “promises bind the legal representatives of the promisor in case of the death of such promisor before performance unless a contrary intention appears from the contract.”
Such intention appears in contracts involving the exercise of special skill or involving special personal confidence. Section 306 of the Indian Succession Act in effect provides that the right to sue does not survive in suit for defamation, assault or other personal injuries not causing the death of the party; and also in cases where after the death of the party the relief sought could not be enjoyed, or granting it would b nugatory.
ADVERTISEMENTS:
The result is that the right to sue survives in such actions as suits for damages for breach of contract, suits for recovery of property, suit for recovery of debt etc.
The right to sue does not survive in suit to recover damages for breach of contract of marriage, death of father during pendency of suits for damages for seduction of daughter, etc. Death of the applicant for leave to sue forma pauperis also causes abatement.
Rule 6 of Order XXXII provides that whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, and the judgment may be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.