Binod Pathak vs. Shankar Choudhary

REPORTABLE
2025 INSC 842
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



Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2025.07.14
18:49:23 IST
Reason:

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 1 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 2 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 3 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.

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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 5 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 6 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 7 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 8 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 9 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: -

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

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 11 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 12 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.”
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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
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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.

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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.”

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

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
st
Maxims in International Law ” 1 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 23 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 24 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.
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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 27 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 28 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
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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
st
came into force on February 1 , 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 defendants 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.
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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
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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;
th
14 July, 2025.
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