Abatement
rahul
(Querist) 09 January 2016
This query is : Resolved
Sir,
This is a fresh suit filed after withdrawing earlier suit with liberty to file fresh suit.
In earlier suit there were three defendant A, B, C.
D & E are the legal heirs of A.
After serving writ of summons in earlier suit, Plaintiff came to know that Defendant A has died & hence while filling affidavit of service, Plaintiff advocate informed to the court that Defendant A has died & Plaintiff advocate asked for time from court to file Chamber summon to bring legal representative of A on record & court gave the time for the same. This is a point 1
Thereafter Plaintiff could appoint lawyer due to financial problem & hence court appointed lawyer from legal aid.
Lawyer from legal aid file chamber summon for deleting the name of Defendant A. (but not for bringing D & E legal representative of A on record). Court allowed the chamber summons but legal aid lawyer did not make changes in the plaint by remaining absent. There is no careless on the part of plaintiff as plaintiff on time to time present before the court.
Finally court kept the matter for evidence as plaintiff failed to carry out amendment even after allowing chamber summons.
Thereafter new lawyer was appointed from legal aid & new lawyer informed to the court that earlier lawyer failed to take proper steps & applied for withdrawal of suit with liberty to file fresh suit. This is a point 2.
There is a gap of 3 years in point 1 & 2. During this 3 years chamber summons was pending.
Court allowed to withdraw suit with liberty to file fresh suit & observed that ''perusal of record would reveal that the advocate for the plaintiff had not taken proper steps and in such circumstances, it will not be justiciable to throttle the grievance of the petitioner without adjudicating it in accordance with law & as such I allowing the application’’.
Thereafter plaintiff filed fresh suit making D & E (legal heirs of A) as defendant.
But advocates for D & E claiming that fresh suit is not maintainable against D & E because earlier suit is abated against A as Plaintiff failed to bring D & E on record in earlier suit & hence plaintiff can not make D & E defendant in fresh suit in place of A.
Is it right that Suit is abated against A ?
Pleas Guide.
Sorry for long query
Devajyoti Barman
(Expert) 10 January 2016
Since the earlier suit is withdrawn without merit the question of abatement does not arise.
In the second suit the addition of D and E would be considered to be for the first time and any activity in the earlier suit withdrawn will not be considered.
Rajendra K Goyal
(Expert) 10 January 2016
The plea of D & E have little merit in the given circumstances.
rahul
(Querist) 10 January 2016
Thank you for reply to Respected Devajyoti Barman Sir & Rajendra K Goyal Sir.
rahul
(Querist) 10 January 2016
Respected Sir,
When Plaintiff filed application for withdrawal of suit with liberty to file fresh suit on the same cause of action, Advocate of Defendant A opposed the withdrawal by filling reply stating that suit is abated against A as plaintiff failed to carry out necessary amendments but court allowed the withdrawal.
Whether this will help ? Because even after taking objection of abatement court has allowed to withdraw & fresh filling & therefore this mean that court has given permission to plaintiff to file fresh suit against legal heirs of A.
In one judgment higher court has observed that if after passing order of abatement, court give permission to bring legal heirs on record then it means that court has set aside the order of abatement & to set aside order of abatement no separate application is needed.
I am finding the decision of higher court of abatement in fresh suit like this case. If anyone know any decision then please share.
Thank you.
Adv. Yogen Kakade
(Expert) 11 January 2016
The query is rightly answered by the experts above.
