Order 22 rule 9
krishna
(Querist) 29 February 2016
This query is : Resolved
Respected Sir,
In Order 22 Rule 9 CPC, it is specifically mentioned that when the suit
is abated or is dismissed under this Order no fresh suit shall be brought on the same cause of action.
But what if court has given permission to file fresh suit on the same cause of action after abatement ?
In our suit one defendant died & thereafter our advocate filed chamber summons to delete the name of defendant who has died. Chamber summons was also for adding other necessary party who are not legal heirs of defendant who has died. Chamber summons was not filed for bringing legal heirs of defendant who has died because advocate was under wrong impression that legal heirs are already on record & accordingly proceeded in matter. Said chamber summons was allowed but amendments were not carried out as our advocate left the matter. On failure to carry out amendments suit was proceeded to evidence.
When new advocate was appointed he said that suit is abated as earlier advocate did not bring legal heirs of Defendant on record in time & said that certain other amendments are needed in suit.
Therefore new advocate advised that it is necessary to file fresh suit.
Thereafter new advocate filed application for withdrawal of suit with liberty to file fresh suit on the same cause of action but did not apply to court to set aside abatement.
Other defendant objected withdrawal on the point of abatement.
But court allowed the suit to withdraw with liberty to file fresh suit on the same cause of action observing that advocate for plaintiff failed to take proper steps in suit. (Defendant did not objected this order)
Thereafter plaintiff filed fresh suit on the same cause of action after adding legal heirs of defendant who had died in earlier suit & other defendant who were not on record in earlier suit.
It is again objected by defendant that fresh suit is abated because of earlier suit.
Whether fresh suit is abated & if abated then can Plaintiff apply for setting aside abatement in fresh suit now ? Please reply.
Thanking you.
P. Venu
(Expert) 01 March 2016
From the given fact, it appears that the imbroglio is because of the lapse of the advocate. If so, it is well settled that no party need suffer for the fault of the Lawyer.
Any how, wait for the decision of the Court on the defendant's objection to the fresh suit.
Rajendra K Goyal
(Expert) 01 March 2016
Discuss with senior lawyer, show him full case file.
Dr J C Vashista
(Expert) 02 March 2016
Show the case file to some prudent local lawyer.
