Abatement of suit

Citation Name : 2013 CLC 331 KARACHI-HIGH-COURT-SINDH
Side Appellant : ANWAR KHAN
Side Opponent : FOUZIA KHAN
O. XXII, R. 2, O. IX R. 9 & O.VII, R.26---Suit was dismissed for non-prosecution and application for restoration of the suit was also dismissed---One of the plaintiffs had died during pendency of suit --- abatement of suit---Scope---Question as to whether after death of the plaintiff, proceedings would abate, primarily depended on the nature of the cause of action---Any action might abate on death of a party but cause of action might survive---Suit in the present case, was filed by three plaintiffs, one of which had died during pendency of suit, and as such right to sue remained alive---Dismissal of suit for non-prosecution, therefore, seemed to be illegal and contrary to the express provisions of Order XXII, Rule 2, C.P.C.---Provisions of Order XXII, R.2, C.P.C. had to be strictly construed and entire suit would not be taken to have abated simply because some of the plaintiffs had died whereas the legal representatives had not been brought on record---Court itself was competent to bring on record legal representatives of deceased plaintiff as list of legal heirs was attached with plaint in terms of Order VII, Rule 26, C.P.C.---High Court set aside the impugned orders---Intra-court appeal was allowed in circumstances.