2025 INSC 842 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7706 OF 2025

(Arising out of Special Leave Petition (C) No. 1536 of 2015)

BINOD PATHAK & ORS. ...APPELLANT(S)

VERSUS

SHANKAR CHOUDHARY & ORS. ...RESPONDENT(S)

J U D G M E N T

Special Leave Petition (C) No. 1536 of 2015 Page 1 of 40

J. B. PARDIWALA, J.:

For the convenience of exposition, this judgment is divided in the following parts: -

INDEX

A. FACTUAL MATRIX ................................................................................... 2

B. SUBMISSIONS OF THE PARTIES .......................................................... 9

i. Submissions on behalf of the Appellants / Original Plaintiffs............... 9

ii. Submissions on behalf of the Respondents / Original Defendants. .... 12

C. ANALYSIS .................................................................................................. 12

i. Relevant Statutory Provisions. ............................................................... 13

ii. Order XXII, Rule 10A of the CPC. ........................................................ 16

a. Rationale behind Order XXII Rule 10A. ............................................ 20

b. Nature of the salutary provision of Order XXII Rule 10A. ................ 21

I. Distinction between the legal maxims ‘ex injuria ius non oritur’ and

‘nullus commodum capere potest de injuria sua propia’. .................. 22

II. Duty of Pleader. .................................................................................. 32

D. CONCLUSION ........................................................................................... 38

Special Leave Petition (C) No. 1536 of 2015 Page 2 of 40

1. Leave Granted.

2. This appeal arises from the judgment and order passed by the High court of

Judicature at Patna dated 22.10.2014 (hereinafter referred to as the

“Impugned Order”) in Second Appeal No. 190 of 2008 by which the Second

Appeal filed the respondents herein; the original defendants, came to be

allowed thereby setting aside the judgment and order passed by the First

Appellate Court allowing the First Appeal filed by the appellants herein; the

original plaintiffs, and decreeing the suit in their favour.

3. For the sake of convenience, the appellants herein shall be referred to as the

original plaintiffs and the respondents herein shall be referred to as the

original defendants.

A. FACTUAL MATRIX

4. The plaintiffs instituted Title Suit No. 106 of 1984 in the Court of the Sub

Judge – (I) Gopalganj (hereinafter, the “title suit”) for declaration of title and

recovery of possession of suit land bearing Khewat Nos. 11 and 12

respectively, revisional survey Nos. 688, 689 and 690 respectively under

Khata Nos. 571 and 574 respectively situated in the Village Harkhauli, P.S.

Mirganj, District Gopalganj.

Special Leave Petition (C) No. 1536 of 2015 Page 3 of 40

5. We need not go into the details of the nature of the suit instituted by the

plaintiffs as we are inclined to dispose of this appeal on a neat question of law

and remand the matter to the High Court for fresh consideration on merits.

6. In the aforesaid title suit instituted by the original plaintiffs referred to above,

the trial court framed the following issues: -

(i) Is the suit, as framed, maintainable?

(ii) Have the plaintiffs got a valid cause of action or right to sue?

(iii) Whether the ancestors of Defendant nos. 7 to 10 had acquired

occupancy right in respect of the suit land?

(iv) Have the plaintiffs got subsisting title and possession over the suit

lands at the time of vesting of the intermediary interest in the state of

Bihar as also on the date of proceeding under Section 145 of the Code

of Criminal Procedure, 1973 (for short, the “Cr.P.C.”)?

(v) To what relief or reliefs, if any, are the plaintiffs entitled to in the

aforesaid suit?

7. Upon appreciation of the oral as well as documentary evidence on record the

trial court recorded a finding that the plaintiffs had failed to establish their

case and accordingly the suit came to be dismissed vide the judgment and

decree dated 05.07.1989.

Special Leave Petition (C) No. 1536 of 2015 Page 4 of 40

8. The original plaintiffs being dissatisfied with the judgment and order passed

by the trial court dismissing the suit went in First Appeal before the Court of

Additional District Judge – (I), Gopalganj. The appeal came to be registered

bearing Title Appeal No. 60/1989 renumbered as Title Appeal No. 58 of

2007.

9. The appeal filed by the plaintiffs came to be allowed by the First Appellate

Court vide the judgment and order dated 02.06.2009.

10. The First Appellate Court while allowing the First Appeal of the plaintiffs

held as under: -

“18. In view of aforesaid finding I hold that plaintiffs have title

on the suit land and they have been illegally dispossessed by the

defendants, so plaintiffs title on suit land mentioned in schedule

2,3 and 4 of plaint is hereby upheld and the plaintiffs are

entitled for recovery of possession of suit land. Plaintiffs have

claimed mesne profit, but the lower court neither framed issue

nor decided the same but in the light of aforesaid finding

plaintiffs are entitled to mesne profit from the date of

dispossession upto getting possession on the suit land which has

to be determined by the lower court in separated proceeding if

it will be initiated by the plaintiffs after delivery of possession.

Hence, the appeal is allowed with cost, the judgment and decree

of the lower court is hereby set aside and the suit is decreed with

cost. The plaintiffs have title and possession on schedule K. 2, 3

and 4 of the plaint and they are entitled for mesne profit from

date of dispossession upto the date of getting delivery of

possession. Defendants (respondents) are directed to deliver

possession of the suit land to the plaintiffs within thirty days

from today failing which plaintiffs (appellants) will be entitled

to get delivery of possession according to the process of law.

Special Leave Petition (C) No. 1536 of 2015 Page 5 of 40

I have already recorded finding that defendants (respondents)

have constructed house and structures on suit land during

pendency of the suit so plaintiffs will have obtain to take

delivery of possession either with house or structures by

evicting persons residing in it or if they so like they may apply

for demotion of house and structures at the cost of the

defendants and to take vacant possession of the suit land.

Pleaders fee Rs. 1000/- and Pleader's clerk fee Rs. 250/-.”

11. The original defendants being dissatisfied with the judgment and order passed by

the First Appellate Court referred to above challenged the same before the High

Court by way of Second Appeal. In the Second Appeal, the High Court formulated

the following substantial questions of law: -

i. "Whether the judgment and decree of the appellate court

could be said to be illegal in view of the same having been

passed against several dead respondents, i.e. respondent

nos. 3, 6(gh), 8, 9, 11 and 12?

ii. Whether the entry in the concerned 'record of right can be

presumed to be the entry in favour of the erstwhile

intermediary as his private land?

iii. Whether in absence of any finding regarding the method

and manner of dispossession as alleged by the plaintiffs,

the relief of restoration of possession could have been

granted especially when the plaintiffs have not adduced

any evidence on this aspect of the matter?

iv. Whether the finding of the appellate Court that in absence

of plea taken in the written statement no such plea can be

allowed to be taken by the defendants is sustainable in law

when both the parties had understood the respective cases

and adduce evidence?”

12. It appears from the materials on record that when the aforesaid Second Appeal

was taken up for hearing it came to the notice of the High Court that some of

Special Leave Petition (C) No. 1536 of 2015 Page 6 of 40

the respondents before the First Appellate Court i.e., some of the original

defendants had passed away and their legal heirs were not brought on record.

The High Court took the view that in the absence of the legal heirs being

substituted in accordance with the provisions of Order XXII Rule 4 of the

Code of Civil Procedure, 1908 (for short, the “CPC”) the First Appellate

Court could not have heard the First Appeal on merits and decided the same

in favour of the plaintiffs. The High Court took the view that the First Appeal

had already stood abated as the decree was joint and indivisible.

13. The High Court held that in case of joint and indivisible decree the abatement

of proceedings in relation to one or more of the appellant(s) or respondent(s)

on account of omission or lapse and failure to bring on record his or their

legal representatives in time would prove fatal to the entire appeal and the

appeal would be liable to be dismissed.

14. The High Court while allowing the Second Appeal filed by the defendants

held as under: -

“At this juncture, it would be pertinent to mention that the

judgment and decree in the suit has been passed on 25.07.1989

and the appeal thereafter came to be decided on 02.06.2008

reversing the judgment and decree in the suit and granting the

decree to the plaintiff as prayed. The memo of this second

appeal has been filed on 27.06.2008 by the original defendant

no. 2 Bihari Choudhary, defendant no. 4 Baijnath Chaudhary

and defendant no. 5 Harilal Choudhary along with the

substituted heirs of the deceased defendant no. 1 Khobhari

Choudhary and deceased defendant no. 6 Yamuna Choudhary.

Special Leave Petition (C) No. 1536 of 2015 Page 7 of 40

The appellant no. 7 Dhananjay Choudhary in this appeal is the

substituted heir of Yadunandan Choudhary who was one of the

substituted heirs of deceased defendant no. 6 Jamuna

Choudhary in the appellate court below. From the perusal of

the memo of the instant appeal, it further transpires that the

respondent nos. 10 to 13 in this appeal' have been impleaded

as heirs of deceased defendant no. 3 Sheonath Choudhary.

On behalf of the appellants, it has been emphatically submitted

that the defendant no. 3-respondent no. 3 (in the appellate court

below) namely Sheonath Choudhary died on 07.05.1997 and

similarly the substituted respondent no. 6 (Gha) (one of the

substituted heirs of the deceased defendant no. 6 Yamuna

Choudhary in the appellate court below) died on 29.09.2000

during the pendency of the appeal in the court below. It has been

further pointed out that the substituted respondent no. 7 (ka)

Most. Dipiya (one of the substituted heirs of the deceased

defendant no. 7 Mangaru Bhagat) died on 07.08.1999, the

defendant no. 8- respondent no. 8 Bacha Bhagat died on

05.04.2003 and respondent no. 9 Nagina Bhagat also died on

05.11.2005 during the pendency of the appeal in the court

below. From the order dated 14.11.2008 passed in this appeal,

it becomes evident that the fact of death of the aforesaid

defendant respondents during the pendency of the appeal in the

court below has been admitted by the plaintiff-respondents and

it has been also admitted that their heirs could not be substituted

in the said appeal.

Examined in the backdrop of these facts, it is vivid that the

deceased defendant no. 3-respondent no. 3 Sheonath

Choudhary was one of the purchasers of the suit land and

similarly the deceased respondent no. 6 (Gha) was one of the

substituted heirs of the original purchaser (Yamuna

Choudhary) of the suit land. The remaining deceased

respondent nos. 7(ka), 8 and 9 in the appeal in the court below

were the heirs of the vendor of the defendant no. 1 to 6. The

impugned judgment and decree by the appellate court below

granting the declaration of title and entitlement of recovery of

possession in favour of the plaintiffs has been passed against

these deceased persons as well, along with the other

respondents. In view of the nature of the decree as prayed for

and granted by the appellate court below being joint and

inseverable, it is evincible therefore that the same has been

Special Leave Petition (C) No. 1536 of 2015 Page 8 of 40

passed against the defendant no. 3-respondent no. 3 Sheonath

Choudhary, respondent no. 6 (gha) Sheonandan Choudhary

and some other respondents as abovementioned who were

already 'dead and their interest was not represented.

Tested on the anvil of the aforesaid principle the conclusion is

inevitable that the decree dismissing the suit as against the

aforesaid deceased respondents had attained finality and could

not have been varied or overturned in absence of their heirs and

legal representatives by the appellate court below. In other

words, the appeal before the appellate court at the time of

passing of the decree had become defective (not properly

constituted) as all the necessary parties for the determination of

the controversy were not before the court and the non-

substitution of the heirs of the deceased respondents was fatal

to the entire appeal.

The proposition by the learned senior counsel on behalf of the

plaintiff-respondents on the strength of the decision of the Apex

Court in the case of K. Naina Mohamed (supra), in the peculiar

facts and circumstances of this case as mentioned, is clearly

misplaced. In the said decision the purchaser was already on

record to represent the interest of his deceased vendors and, in

fact, it was the purchaser who filed the appeal as well as

contested the second appeal thereafter. In the present case, one

of the purchasers and one of the substituted heirs of another

purchaser of the suit land died during the pendency of the

appeal and their interest remained unrepresented as no

substitution was admittedly done. Similarly, no rule has been

laid down in the said decision prescribing that the provision of

Order 22 Rule 10 A shall override the mandatory provision

relating to abatement as contained in Order 22 Rule 4 C.P.C.

for want of substitution of a defendant/respondent who was a

necessary party. In this fact situation, this Court is inclined to

hold that the impugned judgment and decree passed by the

appellate court below cannot be stained in law, and the same

is, accordingly, set aside. The substantial question of law, as

formulated in this regard, is accordingly answered in favour of

the appellants.

In view of the aforesaid conclusions, there remains no necessity

for determining the other substantial questions of law as

framed/suggested.

Special Leave Petition (C) No. 1536 of 2015 Page 9 of 40

In the result, this appeal is allowed. In the facts and

circumstances, there shall be no order as to cost.”

15. In such circumstances referred to above, the plaintiffs are here before this

Court with the present appeal.

B. SUBMISSIONS OF THE PARTIES

i. Submissions on behalf of the Appellants / Original Plaintiffs.

16. Mr. Gagan Gupta, the learned counsel appearing for the plaintiffs vehemently

submitted that the High Court committed a serious error in passing the

impugned judgment and order. He would submit that the impugned judgment

and order passed by the High Court is in gross violation of the provisions of

Order XXII Rule 10A of the CPC. He would submit that respondents /

defendants in the First Appeal deliberately omitted to bring it to the notice of

the plaintiffs that some of the defendants had passed away. According to the

learned counsel, the respondents in the First Appeal not only failed to bring

it to the notice of the First Appellate Court about the passing away of some

of the defendants but allowed the First Appeal to be heard on merits. The

failure on the part of the respondents to bring to the notice of the plaintiffs as

well as to the Court concerned the factum of death of some of the defendants

could be said to be in gross violation of Order XXII Rule 10A of the CPC.

Special Leave Petition (C) No. 1536 of 2015 Page 10 of 40

17. Mr. Gupta submitted that even while conceding to the fact that some of the

respondents before the First Appellate Court had passed away and their legal

heirs were not brought on record, still the appeal as a whole could not be said

to have stood abated. In this regard, Mr. Gupta has given a chart indicating

why the First Appeal could not be said to have wholly abated in absence of

the legal heirs being brought on record. The chart indicates as follows: -

S.N

Respondent

Position

before the

Trial Court

Position

before the

High Court

Position

before this

Court

Particulars

1. Hari Lal

Choudhary

(First Sale

Deed)

Defendant

No. 5

Appellant

No. 6

Respondent

No. 6

No Dispute

w.r.t

abatement

2. Yamuna

Choudhary

(Second Sale

Deed)

Defendant

No. 6

His LRs were

Appellants

Nos. 11 & 12

His LRs are

Respondents

Nos. 8,11

and 12

No Dispute

w.r.t

abatement

3. Khobari

Choudhary

(Third Sale

Deed)

Defendant

No. 1

His LRs were

Appellants

Nos. 1-3

His LRs are

Respondents

Nos. 1-3

No Dispute

w.r.t

abatement

4. Bihari

Choudhary

(Third Sale

Deed)

Defendant

No. 2

Appellant No.

4

Respondent

No. 4

No Dispute

w.r.t

abatement

5. Sheonath

Choudhary

(Fourth Sale

Deed)

Defendant

No. 3

His LRs were

Appellants

Nos. 10-13

His LRs are

Respondents

Nos. 30-33

Dispute w.r.t.

abatement

(As he died on

07.5.1997 during

First Appeal

however in the

Second Appeal his

LRs were

Impleaded.

6. Baijnath

Choudhary

(Fourth Sale

Deed)

Defendant

No. 4

Appellant No.

5

Respondent

No. 5

No Dispute

w.r.t

abatement

Special Leave Petition (C) No. 1536 of 2015 Page 11 of 40

18. Mr. Gupta thereafter, by way of one another chart pointed out that all those

respondents who passed away during the pendency of the First Appeal before

the district court were only “Performa respondents”. The said chart reads as

under: -

S.N

Respondent

Position before

the High Court

Position

before this

Court

Particulars

1. Sheo Nandan

Choudhary

(Died on

07.05.1997)

His LRs were

Appellant No. 10

& Respondent

Nos. 14-20

His LRs are

Respondents

Nos. 10 and

Nos. 36-41

His LRs were not

impleaded in First Appeal

but he has no connection

with the impugned sale

deeds and LRs were

impleaded in the High

Court.

2. Dipiya

(Died on

07.08.1999)

Not a Party.

Not a Party.

No connection with the

impugned sale deeds or the

proceedings.

3. Bachha

Bhagat

(Died on

05.04.2003)

Not a Party.

Not a Party.

No connection with the

impugned sale deeds or the

proceedings.

4. Nagina

Bhagat

(Died on

05.11.2005)

Not a Party.

Not a Party.

No connection with the

impugned sale deeds or the

proceedings.

5. Md. Islam

(Died on

08.03.2001)

His LRs were

Respondents

Nos. 27 & 28

His LRs are

Respondents

Nos. 46 & 47

No connection with the

impugned sale deeds or

the proceedings.

6. Sheo Dhari

Bhagat

(Died on

08.07.2008 i.e.,

after the passing

of the judgment

in First Appeal)

His LRs were

Respondents

Nos. 29 & 30

His LRs are

Respondents

Nos. 48 & 49

No connection with the

impugned sale deeds or the

proceedings.

19. In such circumstances referred to above, the learned counsel appearing for the

plaintiffs prayed that there being merit in his appeal the same may be allowed

Special Leave Petition (C) No. 1536 of 2015 Page 12 of 40

and an appropriate order be passed with a view to do substantial justice

between the parties.

ii. Submissions on behalf of the Respondents / Original Defendants.

20. Mr. Shantanu Sagar, the learned counsel appearing for the defendants on the

other hand submitted that no error not to speak of any error of law could be

said to have been committed by the High Court in passing the impugned

judgment and order. According to the learned counsel the High Court is right

in saying that provisions of Order XXII Rule 4 CPC would override the

provisions of Order XXII Rule 10A of the CPC.

21. In such circumstances referred to above, the learned counsel prayed that there

being no merit in the present appeal, the same may be dismissed.

C. ANALYSIS

22. Having heard the learned counsel appearing for the parties and having gone

through the materials on record the only question that falls for our

consideration is whether the High Court committed any error in passing the

impugned judgment and order?

Special Leave Petition (C) No. 1536 of 2015 Page 13 of 40

23. We regret to state that we are thoroughly disappointed with the manner in

which the High Court dealt with the Second Appeal and more particularly the

understanding of the High Court as regards the position of law on the issues

in question. Such procedural errors are not expected at the level of any High

Court. It is not in dispute that the provisions of Order XXII Rule 10A of the

CPC were not complied with.

24. While the First Appeal was being heard, the defendants could have brought

to the notice of the First Appellate Court that some of the respondents had

passed away and the appeal had stood abated. Had the defendants brought

this fact to the notice of the First Appellate Court, the Court could have looked

into the matter accordingly. It appears that the defendants being fully aware

of the death of some of the respondents kept quiet and allowed the First

Appellate Court to proceed with the hearing of the First Appeal on merits.

When the First Appeal came to be allowed and the matter reached the High

Court in Second Appeal that the issue as regards the abatement came to be

raised.

i. Relevant Statutory Provisions.

25. Order XXII Rule 1 of the CPC reads thus: -

“1. No abatement by party's death if right to sue survives.—

The death of a plaintiff or defendant shall not cause the suit to

abate if the right to sue survives.”

Special Leave Petition (C) No. 1536 of 2015 Page 14 of 40

26. Order XXII Rule 2 of the CPC reads thus: -

“2. Procedure where one of several plaintiffs or defendants

dies and right to sue survives.—

Where there are more plaintiffs or defendants than one, and any

of them dies, and where the right to sue survives to the surviving

plaintiff or plaintiffs alone, or against the surviving defendant

or defendants alone, the Court shall cause an entry to the effect

to be made on the record,. and the suit shall proceed at the

instance of the surviving plaintiff or plaintiffs, or against the

surviving defendant or defendants”

27. Order XXII Rule 4 and 4A, of the CPC reads thus: -

“4. Procedure in case of death of one of several defendants or

of sole defendant.—

(1) Where one of two or more defendants dies and the right to

sue does not survive against the surviving defendant or

defendants alone or a sole defendant or sole surviving

defendant dies and the right to sue survives, the Court, on an

application made in that behalf, shall cause the legal

representative of the deceased defendants to be made a party

and shall proceed with the suit. (2) Any person so made a party

may make any defence appropriate to his character as legal

representative of the deceased defendant. (3) Where within the

time limited by law no application is made under sub-rule (1),

the suit shall abate as against the deceased defendant.

(4) The Court whenever it thinks fit, may exempt the plaintiff

from the necessity of substituting the legal representatives of

any such defendant who has failed to file a written statement or

who, having filed it, has failed to appear and contest the suit at

the hearing; and judgment may, in such case, be pronounced

against the said defendant notwithstanding the death of such

defendant and shall have the same force and effect as if it has

been pronounced before death took place. (5) Where— (a) the

plaintiff was ignorant of the death of a defendant, and could not,

for that reason, make an application for the substitution of the

legal representative of the defendant under this rule within the

period specified in the Limitation Act, 1963 (36 of 1963), and

Special Leave Petition (C) No. 1536 of 2015 Page 15 of 40

the suit has, in consequence, abated, and (b) the plaintiff applies

after the expiry of the period specified therefore in the

Limitation Act, 1963 (36 of 1963), for setting aside the

abatement and also for the admission of that application under

section 5 of that Act on the ground that he had, by reason of

such ignorance, sufficient cause for not making the application

with the period specified in the said Act, the Court shall, in

considering the application under the said section 5, have due

regard to the fact of such ignorance, if proved.

4A. Procedure where there is no legal representative.—

(1) If, in any suit, it shall appear to the Court that any party who

has died during the pendency of the suit has no legal

representative, the Court may, on the application of any party

to the suit, proceed in the absence of a person representing the

estate of the deceased person, or may be order appoint the

Administrator-General, or an officer of the Court or such other

person as it thinks fit to represent the estate of the deceased

person for the purpose of the suit; and any judgment or order

subsequently given or made in the suit shall bind the estate of

the deceased person to the same extent as he would have been

bound if a personal representative of the deceased person had

been a party to the suit. (2) Before making an order under this

rule, the Court— (a) may require notice of the application for

the order to be given to such (if any) of the persons having an

interest in the estate of the deceased person as it thinks fit; and

(b) shall as certain that the person proposed to be appointed to

represent the estate of the deceased person is willing to be so

appointed and has no interest adverse to that of the deceased

person.”

28. Rule 1 of Order XXII of the CPC provides that the death of a plaintiff or

defendant shall not cause the suit to abate if the right to sue survives. Rule 4,

Order XXII of the CPC prescribes that where a defendant dies, on an

application made by the plaintiff, the Court shall cause the legal

representative of the deceased defendant to be made a party and shall proceed

with the suit. It cannot be disputed that such an application has to be filed

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within the time limit prescribed by law; otherwise, the suit would stand abated

against the deceased defendant. A clear provision is to be found to that effect

in sub-rule (3) of Rule 4. Obviously in case of failure to bring the legal

representative on record within prescribed time, the suit having abated, the

plaintiff will have to seek the remedy of setting aside abatement in accordance

with the provisions of law.

ii. Order XXII, Rule 10A of the CPC.

29. With enforcement of 1976's amendment to the CPC, once a party to the suit

dies, a duty is cast upon the lawyer representing such party, to communicate

the fact of death to the opposite party in terms of provisions contain in Rule

10A of Order XXII of the CPC. It is nobody's case that there was compliance

of this rule in the case at hand by the advocate appearing for the defendants.

Unless this primary obligation is discharged and it is established with cogent

evidence that the opposite party had sufficient opportunity to know and, had,

in fact, knowledge of the death of the defendant, the plea of abatement of the

suit at the instance of party having failed to comply with the obligation

mentioned under Rule 10A of Order XXII of the CPC cannot be entertained.

Nobody can be allowed to reap the benefit of his own lapse and to non-suit

the plaintiff.

Special Leave Petition (C) No. 1536 of 2015 Page 17 of 40

30. Order XXII, Rule 10A reads thus: -

“10A. Duty of pleader to communicate to Court death of a

party.—

Wherever a pleader appearing for a party to the suit comes to

know of the death of that party, he shall inform the Court about

it, and the Court shall thereupon give notice of such death to the

other party, and, for this purpose, the contract between the

pleader and the deceased party shall be deemed to subsist.”

31. Rule 10A has been newly inserted by the Code of Civil Procedure

(Amendment) Act, 1976.

32. Rule 10A is intended to avoid delay in making an application for bringing

legal representatives of the deceased party on record. It seeks to mitigate the

hardship arising from the fact that a party to a suit may not come to know

about the death of the other side during the pendency of the proceedings. In

such a situation, it would be appropriate to ask the advocate of the party to

give intimation of the death of the party represented by him so as to enable

the other side to take appropriate steps.

33. The Law Commission stated thus: -

“A new rule is proposed to be inserted to the effect that where

a pleader comes to know of the death of a party to the suit, he

shall inform the court, and the court, in its turn, shall give notice

to the plaintiff of the death. Such a provision will, to some extent

reduce the complications that arise by reason of the plaintiff’s

ignorance of the death of a defendant.”

Special Leave Petition (C) No. 1536 of 2015 Page 18 of 40

34. In the Statement of Objects and Reasons for the Code of Civil Procedure

(Amendment) Bill, 1976, it was observed: -

“Clause 76—Sub-clause (v).—New Rule 10-A is being inserted

to impose an obligation on the pleaders of the parties to

communicate to the Court the death of the party represented by

him.”

35. The Joint Committee also said: -

“Clause 73 (Original clause 76).—(iii) During the course of

evidence, a point was raised, that, on the death of the client, the

contract with the pleader comes to an end and so the obligation

of the pleader to act on behalf of his client ceases on the death

of the client. The Committee, however, feel that it should be

made obligatory on the part of the pleader to inform the Court

about the death of his client and for this purpose the contract

between the pleader and the party should be deemed to subsist.

Sub-rule (1) of new proposed Rule 10-A of Order 22 has been

amended accordingly.

[...] The Committee feel that in view of the amendment made in

sub-rule (1) of new proposed Rule 10-A proposed sub-rule (2)

in Rule 10-A is not necessary as the provision is likely to cause

hardship to the pleader. Sub-rule (2) of the new proposed Rule

10-A of Order 22 has been omitted accordingly.”

36. Rule 10A, as inserted by the Amendment Act, 1976, imposes an obligation

on the pleader of the parties to communicate to the court the fact of the death

of the party represented by him.

37. Rule 10A of Order XXII should be read with Rule 4 of Order III of the Code.

Rule 4 of Order III reads thus: -

Special Leave Petition (C) No. 1536 of 2015 Page 19 of 40

“4. Appointment of pleader.—

(1) No pleader shall act for any person in any Court, unless he

has been appointed for the purpose by such person by a

document in writing signed by such person or by his recognised

agent or by some other person duly authorised by or under a

power-of-attorney to make such appointment. (2) Every such

appointment shall be filed in Court and shall, for the purposes

of sub-rule (1), be deemed to be in force until determined with

the leave of the Court by a writing signed by the client or the

pleader, as the case may be, and filed in Court, or until the client

or the pleader dies, or until all proceedings in the suit are ended

so far as regards the client.”

38. Order III, Rule 4 prescribes the manner of appointment of a pleader and also

the limit upto which such appointment remains in force. Every appointment

of a pleader will be continued inter alia until the client or the pleader dies. As

a general rule, therefore, on the death of the client his contract with the pleader

comes to an end. So also, his authority to act on behalf of his client expires.

39. Rule 10A, as inserted by the Amendment Act, 1976 carves out an exception

to the above general rule and casts a duty upon the advocate appearing for the

party to intimate the court about the death of his client. For this purpose, a

deeming fiction has been created that the contract between the (deceased)

client and the pleader subsists to that limited extent. [See: Gangadhar v. Raj

Kumar, (1984) 1 SCC 121]

40. Rule 10A of Order XXII is salutary in nature. It has been introduced to

mitigate hardship arising from the fact that a suit, appeal or other proceeding

Special Leave Petition (C) No. 1536 of 2015 Page 20 of 40

may take long time and a party to a suit, appeal or other proceeding may die

and the other party may not be aware of such a situation. Rule 10A seeks to

do justice over technicalities by requiring an advocate appearing for the party

to intimate the court about the death of his client and provides an opportunity

to the other side to take necessary steps to bring heirs and legal representatives

of the deceased party on record. Rule 10A is thus not an empty formality. Pre-

eminent object of the rule is to do full and complete justice.

a. Rationale behind Order XXII Rule 10A.

41. An “innovative provision” in the form of Rule 10A has been introduced by

the Amendment Act, 1976 in the Code to avoid procedural technicality

scoring march over substantial justice.

42. In Gangadhar (supra), dealing with the object underlying Rule 10A, this

Court observed that it was introduced to mitigate the hardship arising from

the fact that the party to a suit or appeal, as the case may be, may not come to

know about the death of the other party during the pendency of such suit or

appeal. A suit or appeal takes years to come up for hearing and it is very

difficult to expect the other party to be a watch-dog for day-to-day survival

of his opponent. Then when the suit / appeal comes up for hearing, it comes

to the light that not only one of the parties to the suit / appeal had died but the

Special Leave Petition (C) No. 1536 of 2015 Page 21 of 40

time for substitution had also run out and the suit or appeal had abated. It is

with a view to avoid technicalities and to do full and complete justice that an

important provision has been inserted in CPC, in the form of Order XXII Rule

10A, requiring the advocate appearing for the party to inform death of his

client to the court so as to enable the other side to take appropriate steps to

bring on record legal representatives of the deceased. For that purpose, a

deeming fiction is introduced that the contract between the dead client and

pleader will subsist to the limited extent to supply information to the court

about the death of his client. This Court stated that: -

“The Legislative intention of casting a burden on the learned

advocate of a party to give intimation of the death of the party

represented by him and for this limited purpose to introduce a

deeming fiction of the contract being kept subsisting between the

learned advocate and the deceased party was that the other party

may not be taken unawares at the time of hearing of the appeal

by springing surprise on it that the respondent is dead and appeal

has abated. In order to avoid procedural justice scoring a march

over substantial justice Rule 10-A was introduced by the Code of

Civil Procedure (Amendment) Act of 1976 which came into force

on February 1, 1977.”

(Emphasis supplied)

b. Nature of the salutary provision of Order XXII Rule 10A.

43. Rule 10A is procedural in nature. No penalty is provided for non-compliance

with the rule. The provision is not “absolutely mandatory” [See: United Bank

of India v. Kanan Bala, (1987) 2 SCC 583].

44. The new provision has been inserted with a view that just delay in preferring

substitution application may not be put forward a ground for dismissal of the

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application. Since a lawyer for the party is obliged to inform the court about

the death of his client, his failure to do so should be treated as good and

sufficient ground for condonation of delay. [See: Kathpalia v. Lakhmir

Singh, (1984) 4 SCC 66].

I. Distinction between the legal maxims ‘ex injuria ius non oritur’ and

‘nullus commodum capere potest de injuria sua propia’.

45. The genesis of the provision of Rule 10A of the Order XXII lies in the

doctrine of ‘clean hands’. The doctrine of ‘clean hands’ originates from the

Roman Law, and finds expression in two latin maxims being (i) ex injuria ius

non oritur and (ii) nullus commodum capere potest de injuria sua propia,

which mean “from wrong, no right arises” and “no one can take advantage of

their own wrong”, respectively. [See: Schwebel, Stephen M. “Clean Hands,

Principle” Eds., Rüdiger Wolfrum, Oxford University Press, 2009].

46. Although the aforesaid two maxims, semantically appear to be one and the

same, with the courts often applying the two interchangeably, yet there lies a

very fine but pertinent distinction between the two maxims. The two maxims

are comparable to each other but they are not interchangeable, and differ in

their scope. Aaron X. Fellmeth and Maurice Horwitz in the “Guide to Latin

Maxims in International Law” 1

st

Ed., Oxford University Press, has explained

the maxim ex injuria ius non oritur as follows: -

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“A right does not arise from wrongdoing.” A maxim meaning

that one cannot generally rely on a violation of law to establish

a new legal right or to confirm a claimed right. E.g., “As

Lauterpacht has indicated the maxim ex injuria ius non oritur

is not so severe as to deny that any source of right whatever can

accrue to third persons acting in good faith. Were it otherwise

the general interest in the security of transactions would be too

greatly invaded and the cause of minimizing needless hardship

and friction would be hindered rather than helped.” Advisory

Opinion on Legal Consequences For States Of The Continued

Presence Of South Africa In Namibia (South West Africa)

Notwithstanding Security Council Resolution 276 (1970), 1971

I.C.J. Rep. 16, 167 (separate opinion of Judge Dillard). An

alternative formulation is Ius ex iniuria non oritur. Compare

with Nullus commodum capere (potest) de sua iniuria propria.”

(Emphasis supplied)

47. On the other hand, they have explained the maxim ‘nullus commodum capere

potest de injuria sua propia’ as follows: -

“No advantage (may be) gained from one’s own wrong.” A

maxim meaning that the law will not recognize or validate any

profit a person derives from his own wrongdoing. For example,

one may not destroy evidence of the extent of damages caused

by one’s illegal act, then counter a claim for damages based on

that act by pointing to the lack of evidence. E.g., “[T]he State

must not be allowed to benefit by its inconsistency when it is

through its own wrong or illegal act that the other party has

been deprived of its right or prevented from exercising it [...]”

(Emphasis supplied)

48. A perusal of the aforesaid makes it abundantly clear, that while the maxim

‘ex injuria ius non oritur’ is a principle governing the general spirit of the

jurisprudence of “rights”, that a right cannot emanate or emerge from a

wrongful act, the maxim ‘nullus commodum capere potest de injuria sua

Special Leave Petition (C) No. 1536 of 2015 Page 24 of 40

propria’, on the other hand, confirms the general rule of equity and prudence

that no one can benefit from their own wrongdoing. The scope of the latter is

wider than the former. The first maxim explains that the legitimacy of a right

stands vitiated if such right, which otherwise would have been legitimately

exercisable, accrues from a wrongdoing of the person claiming under or

exercising such right. Although, under the law, a right may arise even if from

a wrongdoing, yet if exercise of such right is allowed, it would malign the

very jurisprudential underpinning of ‘right’ and ‘duty’. A right has a legal

sanctity and backing to it, in order for it to have a legitimising effect, since

the jural correlative of a right is duty. More particularly, the term “right” is

very specific to not include every benefit, profit or advantage. The maxim

solidifies the faith in law that no wrong action will be given a legal validity.

The legal validity of a right flows from other legal norms or from a source of

law [See: Niel MacCormick, “Rights in Legislation”, Law, Morality and

Society: Essays in Honour of H.L.A. Hart, P.M.S. Hacker, and Joseph

Raz (eds). 189-206, Oxford: Clarendon Press (1977)].

49. The maxim, ‘nullus commodum capere potest de injuria sua propria’, on the

other hand, lays itself as a rule of equity. An advantage falling from

wrongdoing may be a legal or illegal advantage. The maxim dictates that, be

that as it may, no profit or advantage of a person’s wrongful act may be

validated by the seal of law. It may very well happen, that the advantage may

Special Leave Petition (C) No. 1536 of 2015 Page 25 of 40

be legal or illegal, but the validation of law will not be extended to it by the

law. Thus, the courts that have the discretion to allow or disallow the

availment of such advantage in ordinary circumstances, are constrained to not

permit a person who has committed a wrongful act to benefit from the

advantageous position afforded to him because of such wrongful action as a

matter of justice, equity and fairness. Fellmeth and Horwitz rightly extend an

illustration, that when a person himself destroys evidence, he cannot take

shelter of the defence of lack of evidence. The advantage falling from the

wrong will not be validated by the courts of law.

50. The interpretation of Order XXII Rule 10A is a manifestation of the latter and

not the former i.e., the cornerstone of its nature and the effect is the maxim

‘nullus commodum capere potest de injuria sua propria’ or no one should

derive benefit from their own wrong. This is because of the procedural nature

of the provision as held in Kanan Bala (supra) and a catena of other decisions

of this Court. Although, the provision aims to do justice over technicalities

by casting a duty upon the pleader to apprise the court as-well as all parties

about the demise of his client, yet it does not prescribe any penalty for the

non-compliance of the same, wilful or inadvertent. A pleader may not be put

to the perils of any penalty for his failure in performing the duty under Rule

10A in law, yet it does not mean that such failure would also be of no bearing

in equity or of inconsequence to the ultimate abatement of the suit or appeal.

Special Leave Petition (C) No. 1536 of 2015 Page 26 of 40

The benevolent object underlying Order XXII Rule 10A to ensure complete

justice on one hand and the contrasting patent absence of any penalty for non-

compliance on the other, would simpliciter be irreconcilable, without the

resort to the maxim ‘nullus commodum capere potest de injuria sua propria’.

It would be preposterous to say that a court of conscience would take no

cognizance of such a failure in duty of the pleader in deciding whether the

suit or appeal could be said to be abated for want of any application in the

stipulated time in terms of sub-rule (3) of Rule 4, Order XXII, and allow an

erring party through its pleader to derive undue advantage thereof. To ignore

such lapses in equity would render Rule 10A completely otiose and do

violence to the legislative intent behind it.

51. Thus, the principle that no party can take advantage of his/her own wrong i.e.

‘nullus commodum capere potest de injuria sua propria’ is squarely attracted

in the event of a failure in complying with the provision of Rule 10A of Order

XXII of the CPC, and any abatement as a result of such wrongdoing or failure

ought not to be validated by the courts.

52. In Kusheshwar Prasad Singh v State of Bihar, (2007) 11 SCC 447, it was

held that the aforesaid maxim is based on elementary principles, is fully

recognised in courts of law and of equity, and, admits of illustration from

every branch of legal procedure. The relevant observations read as under: -

“14. In this connection, our attention has been invited by the

learned counsel for the appellant to a decision of this Court in

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Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353]

wherein it was held by this Court that where an obligation is

cast on a party and he commits a breach of such obligation, he

cannot be permitted to take advantage of such situation. This is

based on the Latin maxim commodum ex injuria sua nemo

habere debet (no party can_take undue advantage of his own

wrong).

15. In Union of India v. Major General Madan Lal Yadav

[(1996) 4 SCC 127: 1996 SCC (Cri) 592] the accused army

personnel himself was responsible for delay as he escaped from

detention. Then he raised an objection against initiation of

proceedings on the ground that such proceedings ought to have

been initiated within six months under the Army Act, 1950.

Referring to the above maxim, this_Court held that the accused

could not take undue advantage of his own wrong. Considering

the relevant provisions of the Act, the Court held that presence

of the accused was an essential condition for the commencement

of trial and when the accused did not make himself available,

he could not be allowed to raise a contention that proceedings

were time-barred. This Court (at SCC p. 142, para 28) referred

to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was

stated:

“It is a maxim of law, recognised and established, that no man

shall take advantage of his own wrong; and this maxim. which

is based on elementary principles, is fully recognised in courts

of law and of equity, and, indeed, admits of illustration from

every branch of legal procedure.”

16. It is settled principle of law that a man cannot be permitted

to take undue and unfair advantage of his own wrong to gain

favourable interpretation of law. It is sound principle that he

who prevents a thing from being done shall not avail himself of

the non-performance he has occasioned. To put it differently,

“a wrongdoer ought not to be permitted to make a profit out of

his own wrong”.

(emphasis supplied)

53. We would like to remind the High Court of this very important legal maxim

of ‘nullus commodum capere potest de inuria sua propria’. It is the duty of

the court to ensure that dishonesty or any attempt to abuse the legal process

Special Leave Petition (C) No. 1536 of 2015 Page 28 of 40

must be effectively curbed and the court must ensure that there is no wrongful,

unauthorised or unjust gain for anyone by abusing of the process of the court.

No one should be permitted to use the judicial process for earning undeserved

gains for unjust profits. The courts’ constant endeavour should be to ensure

that everyone gets just and fair treatment.

54. We may clarify with a view to obviate any possibility of confusion that the

maxim ‘ex injuria ius non oritur’ is different from the maxim ‘nullus

commodum capere potest de inuria sua propria’ for the reason that the former

pertains to a ‘right’ that may become available to a wrongdoer due to the

wrongful act and the latter relates to an ‘advantage’ or ‘benefit’ that a

wrongdoer may derive from his wrongful conduct. Although both are in

essence a byproduct of the doctrine of equity and share a common genealogy

under the doctrine of clean hands, the field in which they operate are different

and distinct. In case of the first maxim, had the right not emanated from a

wrongful act, it would have been cemented in law and the person in whose

favour such right had accrued, could have pleaded for vindication of the same,

with sufficient guarantee, that his plea would be accepted by the court.

However, in the case of the second maxim, if the advantage was not being

derived from a wrongful act, the courts would nevertheless still have the

discretion to hold whether the person in whose favour such advantage had

arisen, could avail such advantage or not. While in such a case there would

Special Leave Petition (C) No. 1536 of 2015 Page 29 of 40

be no embargo on the courts to deny the advantage to the person eligible to

benefit from the same, the courts could still rule that such person could not

avail the benefit. Having considered the cases in which there is no wrong done

by the person deriving the right or benefit from their actions, we shall now

see how the wrongful action affects the conclusion of the courts in both such

scenarios as-well. The answer to this is straightforward. In the first case, when

a right accrues to the person who has committed the wrongful act due to such

act, and while the law regards it as an enforceable right, yet the courts are

armed with power to deny the vindication of such rights, which they

ordinarily could not have done. Put it differently, while the existence of such

rights is undeniable in the eyes of law, yet the exercise or enforceability of

such rights would nevertheless be deniable by the courts in equity. The way

the maxim envisages the application of this principle is based on one another

well-known principle; that equity cannot supplant the law. When the courts

deny the right that may have accrued by a wrongdoing, the courts in essence

are not denying the right itself i.e., they are not supplanting the right

emanating from a law, rather, they are drawing upon the reservoir of equity

within their conscience, to withhold its enforcement, not to contradict the law,

but to ensure that the law does not become an instrument for legitimizing its

own violation through the hands of courts who are expected and reposed of

the faith to uphold the law in the first place. Hence, under the first maxim, the

courts cannot deny such rights, as they flow from the law, but any vindication

Special Leave Petition (C) No. 1536 of 2015 Page 30 of 40

or enforcement can be if they require the touch of courts, by invoking a higher

standard of fairness that guards against the instrumentalization of legal rights

as vehicles of injustice.

55. Whereas, when it comes to the second maxim, irrespective of how the

advantage has accrued, it is not an enforceable advantage. The reason being

a simple one, that they are simply not a ‘right’ so as to have the force or

backing of any law. In the absence of any enforceability flowing from a law

or legal norm, the enforcement or vindication of such advantage as a natural

corollary can only flow from the discretion of the courts, who are required to

supply the legal formalities to make them enforceable in the first place.

Hence, the courts in the case of the latter, being a court of conscience, built

upon the edifice of fair-play, would prohibit inurement of any such benefit

lacking the backing of law by virtue of this discretion and as a matter of

fairness disallow a person who has committed the wrongful action to avail

the benefit or advantage derived from his own wrong. The second maxim

encapsulates the aforesaid principle and mandates that courts, having the

conscience of justice, equity and fairness, ought to necessarily disallow the

benefit of the wrong to such a person.

56. This distinction marks a crucial difference in the scope of the two maxims; in

the former, equity steps in after the law has recognized a right, to decide

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whether justice permits its enforcement; in the latter, however, equity acts

more preemptively, interrogating the moral propriety of allowing any gain

from potentially tainted conduct. In either case, where no wrong is

committed, the courts duty remains guided by legal principle, more so in the

case of the second maxim. However, in the instance of the first maxim, once

wrongdoing results in contaminating the jural relation of ‘rights and duty’, a

shift occurs, where equity steps in in the sphere of entitlement from such

‘rights’.

57. On the basis of the aforesaid, we are of the considered view that the

underlying ethos of Order XXII, Rule 10A is not based on the maxim of ‘ex

injuria ius non oritur’. A ‘right’ accrues in the eyes of law through two

principal channels: first through the force of any law or statute itself, and

secondly, through acts enabled by the law that possess the normative force to

create enforceable claims backed by the operation of law or facilitated by

conventional legal norms such as a gift, will, consent, contract etc., acts that

have the capacity to create legal rights. Any legal norm, must possess

normativity and generality, which together must have such an effect that the

norm ought to become valid in law or through the law, in order for it to give

birth to a right. In other words, only those acts which attain legal validity

inherently within the legal system or through its mechanism can be said to

give rise to a ‘right’.

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58. In the case on hand, the respondents or the original defendants have pleaded

for the abatement of the suit due to non-substitution of legal heirs therein by

the plaintiff, within the statutorily prescribed period of time. Abatement of

suit is not a right that accrues to a party when the other party has failed to

substitute legal heirs within the specified period of limitation. Abatement may

be disallowed by the court if it has sufficient cause for condoning the delay

of the party that ought to have filed for the substitution of legal heirs. In fact,

Rule 10A was enacted for the purpose to allow for mitigation of the legal

effects of delay and can be used to request for condonation of delay.

59. The question of allowing abatement of suit is one of discretion and therefore,

an advantage. Under Rule 10A of Order XXII, the duty of a pleader to apprise

the court as well as the other parties to the suit or appeal of the death of his

client is a duty of candour and propriety as a responsible officer of the court.

The failure of a party to perform the duty under Rule 10A constitutes a

wrongful act and such party must not be allowed to avail the benefit arising

therefrom in the form of abatement of suit.

II. Duty of Pleader.

60. Rule 10A of Order XXII, as inserted by the Amendment Act, 1976 imposes

an obligation on the pleader appearing for the party to intimate death of his

client to the court. But there is difference of opinion as to whether the duty

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imposed on the pleader is confined to factum of death of a party or also to

furnish names and particulars of legal representatives.

61. According to one view, there is no obligation on the pleader appearing on

behalf of the deceased party to furnish or supply list of legal representatives

of the deceased.

62. According to the other view, however, the pleader has not only to inform the

court as to death of the party but he must also furnish particulars of legal

representatives.

63. However, we are of the view that providing merely an information with

regard to the fact of death is not sufficient compliance of the Rule 10A of the

CPC. unless and until the counsel furnishes the information with regard to the

details of the persons on whom and against whom the right to sue survives

and the information under Rule 10A of the CPC. and the object behind it

would remain incomplete as the parties would still be labouring to inquire

who are the legal representatives and find out as to upon whom and against

whom the right to sue survives.

64. This Court in Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi

Amma (Dead) by Lrs. and Others reported in (2008) 8 SCC 321 has

explained the principles applicable in considering applications for setting

aside the abatement and as summarised such principles as under: -

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“12. In State of M.P. v. S.S. Akolkar [(1996) 2 SCC 568] this

Court held: (SCC pp. 569-70, paras 6-7)

“6. [...] Under Order 22 Rule 10-A, it is the duty of

the counsel, on coming to know of the death of a

party, to inform it to the court and the court shall

give notice to the other party of the death. By

necessary implication delay for substitution of legal

representatives begins to run from the date of

knowledge. [...]

7. It is settled law that the consideration for

condonation of delay under Section 5 of the

Limitation Act and setting aside of the abatement

under Order 22 are entirely distinct and different.

The court always liberally considers the latter,

though in some case, the court may refuse to

condone the delay under Section 5 in filing the

appeals. After the appeal has been filed and is

pending, the Government is not expected to keep

watch whether the contesting respondent is alive or

has passed away. After the matter was brought to the

notice of the counsel for the State, steps were taken

even thereafter; after due verification belated

application came to be filed. It is true that Section 5

of the Limitation Act would be applicable and delay

is required to be explained. The delay in official

business requires its broach and approach from

public justice perspective.”

(i) The words “sufficient cause for not making the application

within the period of limitation” should be understood and

applied in a reasonable, pragmatic, practical and liberal

manner, depending upon the facts and circumstances of the

case, and the type of case. The words “sufficient cause” in

Section 5 of the Limitation Act should receive a liberal

construction so as to advance substantial justice, when the

delay is not on account of any dilatory tactics, want of bona

fides, deliberate inaction or negligence on the part of the

appellant.

(ii) In considering the reasons for condonation of delay, the

courts are more liberal with reference to applications for setting

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aside abatement, than other cases. While the court will have to

keep in view that a valuable right accrues to the legal

representatives of the deceased respondent when the appeal

abates, it will not punish an appellant with foreclosure of the

appeal, for unintended lapses. The courts tend to set aside

abatement and decide the matter on merits, rather than

terminate the appeal on the ground of abatement.

(iii) The decisive factor in condonation of delay, is not the length

of delay, but sufficiency of a satisfactory explanation.

(iv) The extent or degree of leniency to be shown by a court

depends on the nature of application and facts and

circumstances of the case. For example, courts view delays in

making applications in a pending appeal more leniently than

delays in the institution of an appeal. The courts view

applications relating to lawyer's lapses more leniently than

applications relating to litigant's lapses. The classic example is

the difference in approach of courts to applications for

condonation of delay in filing an appeal and applications for

condonation of delay in refiling the appeal after rectification of

defects.

(v) Want of “diligence” or “inaction” can be attributed to an

appellant only when something required to be done by him, is

not done. When nothing is required to be done, courts do not

expect the appellant to be diligent. Where an appeal is admitted

by the High Court and is not expected to be listed for final

hearing for a few years, an appellant is not expected to visit the

court or his lawyer every few weeks to ascertain the position

nor keep checking whether the contesting respondent is alive.

He merely awaits the call or information from his counsel about

the listing of the appeal.”

(Emphasis supplied)

65. The High Court in its impugned judgment and order has with a great air of

conviction observed that Order XXII Rule 10A of the CPC is not mandatory

and would not override the mandatory provisions relating to abatement as

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contained in Order XXII Rule 4 of the CPC. We are afraid, the understanding

of the High Court is not correct.

66. The legislative intention of casting a burden on the advocate of a party to give

intimation of the death of the party represented by him and for this limited

purpose to introduce a deeming fiction of the contract being kept subsisting

between the advocate and the deceased party was that the other party may not

be taken unaware at the time of hearing of the appeal by springing surprise

on it that the respondent is dead and appeal has abated. In order to avoid

procedural justice scoring a march over substantial justice the Rule 10A was

introduced by the Code of Civil Procedure (Amendment) Act of 1976 which

came into force on February 1

st

, 1977. Unfortunately, the High Court took no

notice of the wholesome provision and fell back on the earlier legal position

which automatically stands modified by the new provision and reached an

unsustainable conclusion.

67. It is not the question of Order XXII Rule 10A being directory or mandatory.

The court should know how to apply the provision in the facts of each case.

The line of reasoning adopted by the High Court if upheld would render Order

XXII Rule 10A otiose.

68. Before we close this matter, we would like to observe that it is not even the

case of the defendants that the plaintiffs had knowledge of the death of some

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of the defendants. If such would have been the position, then probably the

applicability of the Order XXII Rule 10A would have been inconsequential.

69. In the present appeal the plaintiffs as well as the defendants have filed their

written submissions. The defendants in their written submissions have talked

about the merits of the case but very conveniently have not said a word as to

why it was not brought to the notice of First Appellate court when the First

Appeal was taken up for hearing that the first appeal had in fact stood abated

with the death of some of the defendants. Why the lawyer appearing for the

defendants also kept quiet and proceeded to argue the matter on merits? This

smacks of lack of good faith.

70. In the aforesaid context we may refer to and rely upon a decision of this Court

in P. Jesaya (dead) by Lrs. v. Sub-collector and Anr. reported in (2004) 13

SCC 431 wherein the only contention taken up in appeal before this Court

was that one of the respondents in the appeal before the High Court had died

during the pendency of that appeal. It was contended that his heirs were not

brought on record and therefore the appeal before the High Court had abated.

It was also submitted that as the appeal had abated, the judgment delivered

by the High Court was non-est and could not have been enforced. In the case

at hand the appeal stood abated according to the High Court before the First

Appellate court whereas in P. Jesaya (supra) it had stood abated before the

High Court. This is the only difference.

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71. This Court observed that although the arguments were attractive, yet one must

keep in mind Order XXII Rule 10-A of the C.P.C. This Court observed that

it is obligatory on the pleader of the deceased to inform the court and the other

side about the factum of the death of a party. This Court observed thus: -

“4. Though the arguments are attractive one must also keep in

mind Order 22 Rule 10 of the Code of Civil Procedure. It is

obligatory on the pleader of a deceased to inform the court and

the other side about the factum of death of a party. In this case

we find that no intimation was given to the court or to the other

side that the first respondent had died. On the contrary a

counsel appeared on behalf of the deceased person and argued

the matter. It is clear that the attempt was to see whether a

favourable order could be obtained. It is clear that the intention

was that if the order went against them, then thereafter this

would be made a ground for having that order set aside. This is

in effect an attempt to take not just the other side but also the

court for a ride. These sort of tactics must not be permitted to

prevail. We, therefore, see no reason to interfere. The appeal

stands dismissed. There will be no order as to costs.”

(Emphasis supplied)

72. Had the lawyer of the defendants or the defendants themselves would have

brought to the notice of the First Appellate court that some of the defendants

had died then probably the plaintiffs could have taken steps to first get the

abatement set aside and bring the legal heirs on record.

D. CONCLUSION

73. In such circumstances referred to above we are left with no other option but

to partly allow this appeal and set aside the impugned judgment and order

passed by the High Court.

Special Leave Petition (C) No. 1536 of 2015 Page 39 of 40

74. We are inclined to remand the matter to the High Court for fresh hearing of

the second appeal keeping in mind the principles of law as discussed in this

judgment.

75. In the result, this appeal succeeds and is hereby partly allowed. The impugned

judgment of the High Court is set aside.

76. The matter is remanded to the High Court. The Second Appeal No. 190 of

2008 is restored to its original file and shall be heard afresh and decided on

its own merits after giving opportunity of hearing to both the parties.

77. We clarify that so far as the question whether the decree can be said to be

joint and indivisible or otherwise shall be looked into by the High Court while

hearing the Second Appeal afresh. If the High Court reaches the conclusion

that the decree is joint and indivisible and with the death of some of the

defendants, the entire First Appeal could be said to have abated then it shall

remand the matter to the First Appellate Court so as to give an opportunity to

the plaintiffs to prefer an appropriate application for setting aside of the

abatement and bring the legal heirs on record and thereafter hear the first

appeal once again on its own merits.

78. In the event the High Court reaches the conclusion that the First Appeal as a

whole could not be said to have stood abated as the nature of the decree is

Special Leave Petition (C) No. 1536 of 2015 Page 40 of 40

such that it cannot be said to be joint and indivisible then the High Court shall

hear the Second Appeal on its own merits on other issues involved in the

litigation.

79. Since this litigation is of 1984, we direct the High Court to take up the Second

Appeal No. 190 of 2008 for fresh hearing and decide the same within a period

of three months from the date of receipt of the writ of this order. High Court

shall inform about the disposal of the second appeal to this Court.

80. The Registry is directed to circulate one copy each of this judgment to all the

High Courts.

................................ J.

(J.B. Pardiwala)

................................. J.

(R. Mahadevan)

New Delhi;

14

th

July, 2025.