Code of Civil Procedure, 1908 (CPC)
Order I Rule 10 and Order XXII Compared: Adding Parties and Substituting Them
Two provisions of the Code of Civil Procedure, 1908 change the parties to a pending suit, and they are constantly confused. Order I Rule 10 corrects an array that was wrong or incomplete from the outset, by adding, striking out, substituting a wrongly named plaintiff or transposing. Order XXII responds to events that occur during the pendency of the suit, chiefly death, marriage, insolvency and devolution of interest, by bringing the successor onto the record so that the suit may continue. These notes set out each provision, then compare them across the points that decide problems: the occasion, the consequence of failure, limitation, and the effect on the decree.
1. Order I Rule 10: Correcting the Array
§ What Order I Rule 10 does Rule 10(1): where a suit has been instituted in the name of the wrong plaintiff, or it is doubtful whether it is in the name of the right plaintiff, the court may at any stage substitute or add the right plaintiff, if satisfied that the mistake was bona fide and that substitution is necessary for the determination of the real matter in dispute. Rule 10(2): the court may at any stage, on application or of its own motion, strike out a party improperly joined, and add a person who ought to have been joined or whose presence is necessary to enable the court effectually and completely to adjudicate upon all the questions involved in the suit. Rule 10(3), (4) and (5): consent is required before adding a plaintiff suing without a next friend; the plaint must be amended and served on a newly added defendant; and, subject to the law of limitation, proceedings against a newly added defendant are deemed to have begun on the service of summons upon him. |
The premise of the rule is that the suit itself is sound but the record is not: the plaintiff sued in the wrong name, omitted a necessary party, joined someone he should not have, or arrayed a party on the wrong side. Nothing has happened to any party; the mistake was there from the beginning, or the need for a party has emerged from the way the case has developed. The remedy is correction, at any stage, in the court's discretion.
2. Order XXII: Death, Marriage, Insolvency and Devolution
§ The scheme of Order XXII The Order is organised around events, each with its own rule: • Rule 1: the death of a plaintiff or defendant does not cause the suit to abate if the right to sue survives. This is the threshold question in every Order XXII problem. • Rules 2, 3 and 4: where one of several plaintiffs or defendants dies and the right to sue survives to or against the survivors, the court records the fact and proceeds. Where a sole or the last surviving plaintiff or defendant dies, the legal representative as defined in Section 2(11) is brought on record on application; failing that, the suit abates as against the deceased. • Rule 4(4) and (5): the court may exempt a plaintiff from substituting the representative of a defendant who failed to file a written statement or who failed to appear, and may condone delay in applying for substitution on sufficient cause being shown. • Rule 5: where a question arises as to who is the legal representative, that question is determined by the court in the suit itself, summarily and without finally deciding title. • Rule 6: where death occurs between the hearing and the pronouncement of judgment, there is no abatement, and judgment may be pronounced notwithstanding the death. • Rules 8 and 9: insolvency of a plaintiff, and the setting aside of abatement or dismissal on sufficient cause being shown. • Rule 10: in cases of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, with the leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. • Rule 10A: where a pleader's client dies, the pleader must inform the court of the death. |
The premise here is the opposite of Order I: the record was right, and an event has made it wrong. The remedy is not correction but continuation, by bringing the successor to the interest onto the record so that the suit already instituted may proceed against the same interest in new hands.
3. Abatement: The Distinctive Consequence of Order XXII
The sharpest difference between the two provisions lies in what follows from inaction. Under Order I Rule 10, nothing automatic happens: a necessary party who is not added may cause the suit to fail when the court comes to pass a decree, but no rule extinguishes the suit by lapse of time. Under Order XXII, abatement is automatic: where a legal representative is not brought on record within the period of limitation, the suit abates as against the deceased party by force of Rule 3(2) or Rule 4(3), without any order of the court, and an order recording abatement is merely declaratory.
§ The limitation scheme for substitution Article 120, Limitation Act, 1963: ninety days to apply to bring the legal representative of a deceased plaintiff or defendant on record, running from the date of death. Article 121: sixty days to apply to set aside an abatement, running from the date of the abatement. Order XXII Rule 9(2) and (3): the court may set aside the abatement on sufficient cause being shown, and Section 5 of the Limitation Act applies to applications under Rules 4(5) and 9. Effect of abatement: by Rule 9(1), where a suit abates, no fresh suit may be brought on the same cause of action, which is why the timetable is unforgiving and why applications to set aside abatement are approached with a degree of indulgence where the delay is explained. |
📖 Karuppaswamy v. C. Ramamurthy, (1993) 4 SCC 41 An application to bring legal representatives on record was made beyond the prescribed period, and the question was the approach the court should take to setting aside the resulting abatement. The Supreme Court held that the provisions relating to abatement are procedural, intended to secure the proper conduct of litigation and not to extinguish rights; where a party has acted bona fide and the delay is explained, the court should ordinarily lean in favour of setting aside the abatement and deciding the matter on the merits, since a dismissal on abatement decides nothing and defeats a claim without adjudication. Rule: abatement provisions are procedural and are applied in the spirit of the handmaid principle. Sufficient cause under Rule 9 is construed liberally where bona fides are shown. |
4. Order I Rule 10 and Order XXII Compared
Basis | Order I Rule 10 | Order XXII |
|---|---|---|
Occasion | The array of parties was wrong or incomplete from the start, or a person's presence has become necessary for a complete adjudication | An event during the pendency of the suit: death, marriage, insolvency, or assignment, creation or devolution of an interest |
Nature of the step | Correction: adding, striking out, substituting a wrongly named plaintiff, or transposing | Continuation: substituting the successor to an existing interest so the same suit proceeds |
Who comes on record | A person who ought to have been a party, or whose presence is necessary | The legal representative under Section 2(11), the assignee, or the person on whom the interest devolves |
Who may move | Any party, or the court suo motu | Ordinarily the party seeking to continue the suit; under Rule 10 the person on whom the interest devolves, with leave |
Time limit | None prescribed; exercisable at any stage | Ninety days to substitute (Article 120) and sixty days to set aside abatement (Article 121) |
Consequence of inaction | The suit may fail for non-joinder of a necessary party when the decree is to be passed | Automatic abatement as against the deceased, and by Rule 9(1) no fresh suit on the same cause of action |
Limitation for the new party | Section 21, Limitation Act: the suit is deemed instituted against him when he is made a party, subject to the good-faith proviso | No new institution: the successor continues the existing suit, which was instituted in time |
Relief against inaction | Addition may still be sought at any stage | Application to set aside abatement under Rule 9, with Section 5 of the Limitation Act available |
5. Where the Two Overlap
Three situations sit on the boundary, and knowing how they are resolved distinguishes a strong answer.
i. Devolution during the suit by transfer. A transfer of the subject matter during the suit is governed by Order XXII Rule 10 and by Section 52 of the Transfer of Property Act: the transferee is bound by the decree and may, with the leave of the court, continue the suit. He may also be added under Order I Rule 10(2) where his presence is required, but the natural provision is Rule 10 of Order XXII, and no abatement follows a failure to implead him, since the interest remains represented by the transferor.
ii. Death of a party where the right to sue does not survive. Order XXII Rule 1 is the gateway: if the right to sue does not survive, the suit comes to an end and no substitution arises, so Order I Rule 10 has nothing to operate upon. Personal actions that die with the person are the classic instance.
iii. A necessary party who has died before the suit. This is an Order I problem, not an Order XXII one: a person already dead when the suit was filed was never a party, so his representative is added under Order I Rule 10(2), and the limitation consequence under Section 21 of the Limitation Act applies, rather than the abatement scheme.
6. Landmark Judgments
- Karuppaswamy v. C. Ramamurthy, (1993) 4 SCC 41. Abatement provisions are procedural; sufficient cause for setting aside abatement is construed liberally where bona fides are shown.
- Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre, (2010) 7 SCC 417. The consolidated statement of principles under Order I Rule 10(2), including dominus litis and the two limbs of the test.
- Order XXII Rule 9(1) CPC. Where a suit abates, no fresh suit may be brought on the same cause of action, which is the reason the substitution timetable is critical.
- Section 21, Limitation Act, 1963. A suit is deemed instituted against an added party when he is made a party, unless the omission was due to a mistake made in good faith.
7. Frequently Asked Questions
What is the difference between Order I Rule 10 and Order XXII of the CPC?
Order I Rule 10 corrects an array of parties that was wrong or incomplete from the start, by adding, striking out, substituting a wrongly named plaintiff or transposing. Order XXII deals with events during the pendency of the suit, such as death, insolvency or devolution of interest, and substitutes the successor so the same suit may continue.
What happens if a legal representative is not brought on record in time?
The suit abates as against the deceased party automatically, under Order XXII Rule 3(2) or Rule 4(3), on the expiry of the ninety days prescribed by Article 120 of the Limitation Act. By Rule 9(1) no fresh suit may then be brought on the same cause of action, though the abatement may be set aside under Rule 9 on sufficient cause being shown within sixty days.
Does a suit abate on the death of a party?
Only if the right to sue does not survive, or if the legal representative is not brought on record in time. Order XXII Rule 1 provides that death does not cause abatement where the right to sue survives, and Rule 6 provides that no abatement occurs where death takes place between the hearing and the pronouncement of judgment.
Is a transferee pendente lite a necessary party?
No. By Section 52 of the Transfer of Property Act he is bound by the decree, and the interest remains represented by his transferor. Under Order XXII Rule 10 he may, with the leave of the court, continue the suit, and the court may in its discretion implead him, but his absence causes no abatement.
Which provision applies when a necessary party died before the suit was filed?
Order I Rule 10(2), not Order XXII. A person already dead when the suit was instituted was never a party, so his legal representative is added as a new party, and Section 21 of the Limitation Act governs the date from which the suit runs against him.
Can the court substitute a party of its own motion?
Under Order I Rule 10(2), yes: the court may add or strike out parties on its own motion at any stage. Under Order XXII, substitution ordinarily follows an application, though the court determines who the legal representative is under Rule 5 and may exempt or condone under Rule 4.
8. Related Topics in This CPC Series
- Impleadment of Parties under Order I Rule 10
- Transposition of Parties under the CPC
- Necessary Party and Proper Party under the CPC
- Misjoinder and Non-Joinder of Parties under Order I