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SUPREME COURT OF INDIA
J.B. PARDIWALA, R. MAHADEVAN, JJ.
Binod Pathak and Others - Appellants
Versus
Shankar Choudhary and Others - Respondents
Civil Appeal No. 7706 of 2025 [Arising Out of Special Leave Petition (C) No. 1536 of 2015]
Decided On : 14-07-2025
(A) Civil Procedure Code, 1908 – Order XXII Rule 10A – Duty of Pleader to communicate to Court death of a party – A suit or appeal takes years to come up for hearing and it is very difficult to expect other party to be a watch-dog for day-to-day survival of his opponent – Rule 10A is intended to avoid delay in making application for bringing legal representatives of deceased party on record – Rule 10A of Order XXII is salutary in nature – Rule 10A seeks to do justice over technicalities by requiring 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 deceased party on record – Rule 10A is not an empty formality – Pre-eminent object of rule is to do full and complete justice – Rule 10A is procedural in nature – No penalty is provided for non-compliance with the rule – The provision is not absolutely mandatory – The new provision has been inserted with a view that just delay in preferring substitution application may not be put forward as a ground for dismissal of application – Since Lawyer for party is obliged to inform court about death of his client, his failure to do so should be treated as good and sufficient ground for condonation of delay. (Paras 32, 40, 42, 43 and 44)
(B) Civil Procedure Code, 1908 – Order XXII Rule 10A – Duty of Pleader to communicate to Court death of a party – Question of allowing abatement of suit is one of discretion and an advantage – Abatement of suit is not a right that accrues to a party when other party has failed to substitute legal heirs within specified period of limitation – Abatement may be disallowed by court if it has sufficient cause for condoning delay of party that ought to have filed for substitution of legal heirs – Merely information with regard to fact of death is not sufficient compliance of Rule 10A of CPC unless and until Counsel furnishes information with regard to details of persons on whom and against whom right to sue survives and information under Rule 10A of CPC. (Paras 57, 58, 59 and 63)
(C) Maxims – Distinction between legal maxims ‘ex injuria ius non oritur’ and ‘nullus commodum capere potest de injuria sua propia’ – The two maxims are comparable to each other but they are not interchangeable, and differ in their scope – While maxim ‘ex injuria ius non oritur’ is a principle governing general spirit of jurisprudence of “rights” that a right cannot emanate or emerge from a wrongful act, maxim ‘nullus commodum capere potest de injuria sua propria’ on other hand, confirms general rule of equity and prudence that no one can benefit from their own wrongdoing – Scope of latter is wider than former – Any legal norm, must possess normativity and generality, which together must have such an effect that norm ought to become valid in law or through law, in order for it to give birth to a right – Courts that have discretion to allow or disallow availment of such advantage in ordinary circumstances, are constrained to not permit a person who has committed a wrongful act to benefit from advantageous position afforded to him because of such wrongful action as a matter of justice, equity and fairness – Advantage falling from wrong will not be validated by court of law. (Paras 46, 48, 49, 51 and 56)
Facts of the case:
Present appeal arises from judgment and order passed by High court of Judicature at Patna dated 22.10.2014 in Second Appeal No. 190 of 2008 by which Second Appeal filed by respondents herein; original defendants, came to be allowed thereby setting aside judgment and order passed by First Appellate Court allowing First Appeal filed by appellants herein; original plaintiffs, and decreeing suit in their favour.
Findings of Court:
In the event High Court reaches conclusion that First Appeal as a whole could not be said to have stood abated as nature of decree is such that it cannot be said to be joint and indivisible then High Court shall hear Second Appeal on its own merits on other issues involved in litigation.
Result : Appeal partly allowed.
This legal document primarily addresses the procedural obligations of legal practitioners regarding the death of a party involved in a suit or appeal, specifically under Order XXII Rule 10A of the Civil Procedure Code (CPC). The key points emphasize that it is the duty of the pleader to communicate the death of a party to the court, which is intended to prevent unnecessary delays and ensure that legal representatives are properly substituted on record.
The rule is procedural and not absolute, meaning non-compliance does not automatically result in the dismissal of a suit or appeal, but it can be a factor in the court's discretion, especially when it causes prejudice or results in improper abatement of proceedings (!) (!) (!) (!) (!) .
Furthermore, the provision aims to uphold the principles of justice and fairness by allowing courts to condone delays and to prevent parties from benefiting from their own wrongful acts—specifically, the wrongful omission to inform the court of a party’s death. This aligns with the legal maxims that prohibit deriving advantage from one's own wrongs, ensuring that procedural lapses do not lead to unjust outcomes (!) (!) (!) (!) (!) (!) (!) .
The distinction between the maxims ‘ex injuria ius non oritur’ and ‘nullus commodum capere de injuria sua propria’ is also highlighted, with the latter being more applicable in cases where a party seeks to benefit from their own wrongful act. The rule’s purpose is to prevent such unjust enrichment, maintaining the integrity of legal proceedings and equitable principles (!) (!) (!) (!) (!) .
Importantly, the rule is not mandatory in a strict sense, but its enforcement is guided by the principles of equity and justice. Courts are expected to interpret and apply Rule 10A flexibly, considering the facts and circumstances of each case, especially in instances where non-compliance might be inadvertent or due to oversight (!) (!) (!) (!) .
In summary, the core obligation under Rule 10A is to inform the court of a party’s death, including details of legal heirs and the scope of the right to sue. Failure to do so, especially when done deliberately or in bad faith, can be treated as wrongful conduct, potentially leading to the abatement of proceedings or other adverse judicial consequences. The overarching principle is that procedural lapses should not be exploited to cause injustice, and courts should uphold the doctrine that no one should derive benefit from their own wrong in the context of procedural compliance (!) (!) (!) (!) (!) (!) (!) (!) .
| Table of Content |
|---|
| 1. overview of the case and procedural history. (Para 1 , 2 , 4 , 5 , 6) |
| 2. arguments presented by both parties regarding procedural compliance. (Para 16 , 20) |
| 3. court's directive for a fresh hearing in light of the failure to substitute legal heirs. (Para 73 , 74) |
JUDGMENT :
J.B. PARDIWALA, J.
For the convenience of exposition, this judgment is divided in the following parts:
| INDEX | |
| (A) | FACTUAL MATRIX |
| (B) | SUBMISSIONS OF THE PARTIES |
| (i) Submissions on behalf of the Appellants/Original Plaintiffs | |
| (ii) Submissions on behalf of the Respondents/Original Defendants | |
| (C) | ANALYSIS |
| (i) Relevant Statutory Provisions | |
| (ii) Order XXII, Rule 10A of the CPC | |
| (a) Rationale behind Order XXII Rule 10A | |
| (b) Nature of the salutary provision of Order XXII Rule 10A | |
| (I) Distinction between the legal maxims ‘ex injuria ius non oritur’ and ‘nullus commodum capere potest de injuria sua propia’ | |
| (II) Duty of Pleader | |
| (D) | CONCLUSION |
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.
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:
(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.
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:
(1) Duty of Pleader to communicate to Court death of a party – Rule 10A is intended to avoid delay in making application for bringing legal representatives of deceased party on record – Rule 10A is p....
The main legal point established is that the timely filing of applications under Order XXII Rule 4 and Rule 9 of the CPC is crucial, and delay cannot be condoned without sufficient cause. Negligence ....
The main legal point established in the judgment is the court's power to treat an application under Order 22 Rule 4 of CPC as an application under Order 1 Rule 10 of CPC, allowing for the substitutio....
Abatement of an appeal under CPC is not automatic upon death if the right to sue survives; presence of a legal representative allows continuation despite procedural delays.
Counsel must notify the court of a party's death and provide legal heirs' details; failure leads to abatement under Order 22 Rule 10A of CPC.
Procedural laws must be interpreted liberally to ensure substantive rights are upheld in the context of setting aside abatement due to a party's death, emphasizing justice over technicalities.
A decree passed against a deceased party is null and void; proper procedure under Order 22 CPC must be followed to avoid automatic abatement.
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