Order XXII CPC For Bringing On Record Legal Heirs Of Deceased Party Apply To Proceedings For Restoration Of Suit: J&K High Court

The Jammu & Kashmir and Ladakh High Court recently clarified that the applicability of Order XXII of the Civil Procedure Code (CPC) which govern the procedure for bringing on record the legal representatives of the deceased plaintiffs/ defendants as also the procedure for setting aside of the abatement, is not limited to suits alone.

Single bench of Justice Sanjay Dhar observed that the provisions of Order XXII are equally applicable in suits, appeals, and proceedings relating to the restoration of a suit.

While upholding the restoration of a suit filed by a bank for recovery of dues, despite the abatement of some of the defendants, Court observed,

“Section 141 of the Code makes procedure provided under the Code in regard to suits applicable to all proceedings in any court of civil jurisdiction. Explanation to the said provision lays down that expression ‘proceeding’ would include the proceedings under Order IX of the Civil Procedure Code. Thus, the provisions contained in Order XXII of the CPC are applicable to the proceedings relating to restoration of a suit which falls under Order IX of the Code”.

The plaintiff, a bank, had filed a suit for the recovery of Rs. 3,44,945.80 against the petitioners and other defendants before the trial court. However, during the course of the proceedings, the plaintiff bank stopped appearing in the case, leading to the suit being dismissed for non-prosecution on 29th August 2014. Subsequently, the plaintiff filed an application for restoration of the suit on the grounds of incorrect diarization of the hearing date by their counsel, lack of information about court proceedings, and damage to the case record due to the 2014 floods in the region.

The defendants in the case argued that the suit had abated against certain defendants who had passed away, and their legal heirs were not brought on record. They submitted the impugned order was passed against dead persons whose legal heirs were not brought on record, as such, the same is nullity in the eyes of law. Additionally, they raised objections about the delay in filing the restoration application.

After hearing counsel for both the parties, the court below passed the impugned order and restored the suit to its original number after condoning the delay in filing the application for restoration subject to payment of cost of Rs.3000/.

Assailing the restoration the petitioners vehemently argued that since the suit against respondents No.3 to 5 had abated because of their death and non-impleadment of their legal heirs, therefore, the suit could not have been restored to its original number.

Adjudicating upon the matter Justice Dhar examined the provisions of Order XXII of the Civil Procedure Code (CPC) and noted that Section 141 of the CPC makes the procedure provided under the Code applicable to all proceedings in any court of civil jurisdiction, including those falling under Order IX (relating to restoration of suits).

The Court held that while the suit had abated against certain defendants, who were guarantors, the right to sue against the principal borrowers (defendants No. 1 to 5) still survived and therefore, the suit could proceed against them despite the abatement of the other defendants.

Regarding the delay in filing the restoration application, the Court considered the unprecedented circumstances caused by the 2014 floods, which severely affected court functioning and damaged case records and hence maintained that the plaintiff bank had made out a sufficient cause for the delay.

In view of the said legal position, the bench upheld the trial court's order, stating that it had rightly exercised its discretion in condoning the delay and restoring the suit.