11.8 Death and Abatement (Order XXII), Withdrawal and Compromise (Order XXIII) & Suits By or Against the Government (Ss. 79-80)

11.8 Death and Abatement, Withdrawal and Compromise, and Suits By or Against the Government

Three scenarios interrupt the normal life of a suit: a party dies, a party wants out, or the opposite party is the State. Each has its own rules and each generates a steady supply of preliminary-examination questions because the timelines are precise.

Death, Marriage and Insolvency of Parties (Order XXII CPC)

The Governing Principle: Rule 1

The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Abatement is therefore not automatic on death; it follows only from a failure to bring the legal representatives on record in time.

• The limitation timeline to memorise: ninety days to bring the legal representatives on record (Article 120), and where abatement has already set in, a further sixty days to apply to set the abatement aside (Article 121), with Section 5 of the Limitation Act available to condone delay in the latter application.
• Order XXII Rule 11 applies these provisions, with the necessary modifications, to appeals. The abatement of an appeal against one of several respondents can render the whole appeal incompetent where the decree is joint and indivisible.

Withdrawal, Abandonment and Compromise (Order XXIII CPC)

Rule 1 — Withdrawal and Abandonment

• Rule 1(1): at any time after the institution of a suit, the plaintiff may abandon his suit or abandon a part of his claim against all or any of the defendants.
• Rule 1(3) — withdrawal with liberty to file afresh: where the court is satisfied that (a) the suit must fail by reason of some formal defect, or (b) there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject-matter, it may permit withdrawal with liberty to institute a fresh suit, on such terms as to costs as it thinks fit.
• Rule 1(4) — the sanction: a plaintiff who abandons or withdraws without such permission is precluded from instituting any fresh suit in respect of the same subject-matter, and remains liable for the costs the court awards.
• Rule 1(5): where there are several plaintiffs, none may abandon or withdraw without the consent of the others.
• Rule 1A: where a plaintiff withdraws, a defendant may apply to be transposed as a plaintiff where he has a substantial question to be decided against another defendant.

Rule 3 — Compromise of a Suit

Where the court is satisfied that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter, the court shall order the compromise to be recorded and pass a decree in accordance with it so far as it relates to the parties to the suit.

• The proviso requires that where one party alleges and the other denies an adjustment, the court shall decide the question, and no adjournment shall ordinarily be granted for the purpose of deciding it.
• Explanation to Rule 3: an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 shall not be deemed lawful within the meaning of the rule.
• Rule 3A — the bar: no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The remedy is to apply to the same court that recorded the compromise.
• Rule 3B: no agreement or compromise in a representative suit shall be entered into without the leave of the court, expressly recorded in the proceedings.

Suits By or Against the Government or Public Officers (Sections 79-82 & Order XXVII CPC)

• Section 79 — the name in which the suit is filed: in a suit by or against the Government, the authority to be named as plaintiff or defendant is the Union of India in the case of the Central Government and the State in the case of a State Government. A suit against "the Collector of Pune" as the State is defective in form.
• Section 80(1) — the two-month notice: no suit shall be instituted against the Government, or against a public officer in respect of any act purporting to be done by him in his official capacity, until the expiration of two months after notice in writing has been delivered to or left at the office of the specified authority, stating the cause of action, the name, description and place of residence of the plaintiff, and the relief claimed.
  • For the Central Government (other than railways), the Secretary to that Government; for the railways, the General Manager; for a State Government, the Secretary to that Government or the Collector of the district.
• Section 80(2) — the escape hatch: a suit to obtain urgent or immediate relief may be instituted with the leave of the court without serving the notice, but the court shall not grant relief, interim or otherwise, except after giving the Government or the public officer a reasonable opportunity of showing cause. If the court is satisfied that no urgent relief need be granted, it shall return the plaint for presentation after complying with sub-section (1).
• Section 80(3) — no technical dismissal: no suit shall be dismissed merely by reason of any error or defect in the notice if the notice was in fact delivered and identified the cause of action and the relief claimed in substance.
• Section 81 exempts a public officer from arrest and his property from attachment before judgment, and permits exemption from personal appearance where he cannot absent himself from duty without detriment to the public service.
• Order XXVII Rule 8B defines "Government" and "Government Pleader"; Rule 5A requires the Government to be joined as a party to a suit against a public officer where the suit relates to an official act.

[!TIP] Section 80 is mandatory and is strictly construed, but it is procedural in the sense that a defect in the contents of a notice will not defeat the suit under Section 80(3). What cannot be cured is the complete absence of a notice without the leave of the court under Section 80(2).