# Binod Pathak & Ors v. Shankar Choudhary & Ors

- **Citation:** 2025 INSC 842
- **Court:** Supreme Court of India
- **Decided:** 2025-07-14
- **Case number:** Civil Appeal No. 7706 of 2025
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/binod-pathak-ors-v-shankar-choudhary-ors-38587
- **Pages:** 35

## Headnote

Matter pertains to the correctness of the order passed by the High
Court that as some of the defendants before the first appellate
court had passed away and their legal heirs were not brought on
record in accordance with the provisions of Or.XXII r.4 CPC, the
first appellate court could not have heard the first appeal on merits
and decided the same in favour of the plaintiffs as it already stood
abated.
Headnotes†
Code of Civil Procedure, 1908 - Or.XXII rr.4(3), 10A - Duty of
pleader to communicate to court death of a party - Title suit
instituted by appellants-plaintiffs - Dismissed by the trial
court, however, allowed by the first appellate court - Second
appeal by the respondent-defendant - Allowed by the High
Court holding that as some of the defendants before the
first appellate court had passed away and their legal heirs
were not brought on record, and in absence thereof, the first
appellate court could not have heard the first appeal on merits
and decided the same in favour of the plaintiffs as it already
stood abated - Correctness:
Held: Provisions of Or.XXII r.10A were not complied with by the
High Court - While the first appeal was being heard, the defendants
could have brought to the notice of the first appellate court that
some of the defendants had passed away and the appeal had
stood abated - Defendants being fully aware of the death of some
of the defendants 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
* Author
104
[2025] 8 S.C.R.
Supreme Court Reports
Court in Second Appeal the issue as regards the abatement of
suit came to be raised by the defendants due to non-substitution
of legal heirs 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 - u/
Or.XXII r.10A, 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 - Failure of a party to perform the duty u/r.10A constitutes
a wrongful act and such party must not be allowed to avail the
benefit arising therefrom in the form of abatement - High Court
erred in holding that Or.XXII r.10A is not mandatory and would
not override the mandatory provisions relating to abatement in
Or.XXII r.4 - Court should know how to apply the provision in the
facts of each case - Line of reasoning adopted by the High Court
if upheld would render Or.XXII r.10A otiose - Lawyer appearing
for the defendants also kept quiet and proceeded to argue the
matter on merits, smacks of lack of good faith - Thus, impugned
order set aside - Matter remanded to the High Court. [Paras 23,
24, 58, 59, 65-73]
Code of Civil Procedure, 1908 - Or.XXII r.10A - Duty of pleader:
Held: Providing merely an information with regard to the fact of
death is not sufficient compliance of the r.10A 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 u/r.10A 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. [Para 63]
Code of Civil Procedure, 1908 - Or.XXII r.10A - Duty of pleader
to communicate to Court death of a party - Scope, objective
and rationale of Or.XXII r. 10A - Nature of salutary provision
of Or.XXII r.10A - Stated. [Paras 29-44, 50]
Maxims - 'ex injuria ius non oritur' and 'nullus commodum
capere potest de injuria sua propia' - Dist

## Text

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[2025] 8 S.C.R. 103 : 2025 INSC 842
Binod Pathak & Ors.
v.
Shankar Choudhary & Ors.
(Civil Appeal No. 7706 of 2025)
14 July 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
Matter pertains to the correctness of the order passed by the High
Court that as some of the defendants before the first appellate
court had passed away and their legal heirs were not brought on
record in accordance with the provisions of Or.XXII r.4 CPC, the
first appellate court could not have heard the first appeal on merits
and decided the same in favour of the plaintiffs as it already stood
abated.
Headnotes†
Code of Civil Procedure, 1908 - Or.XXII rr.4(3), 10A - Duty of
pleader to communicate to court death of a party - Title suit
instituted by appellants-plaintiffs - Dismissed by the trial
court, however, allowed by the first appellate court - Second
appeal by the respondent-defendant - Allowed by the High
Court holding that as some of the defendants before the
first appellate court had passed away and their legal heirs
were not brought on record, and in absence thereof, the first
appellate court could not have heard the first appeal on merits
and decided the same in favour of the plaintiffs as it already
stood abated - Correctness:
Held: Provisions of Or.XXII r.10A were not complied with by the
High Court - While the first appeal was being heard, the defendants
could have brought to the notice of the first appellate court that
some of the defendants had passed away and the appeal had
stood abated - Defendants being fully aware of the death of some
of the defendants 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
* Author
104
[2025] 8 S.C.R.
Supreme Court Reports
Court in Second Appeal the issue as regards the abatement of
suit came to be raised by the defendants due to non-substitution
of legal heirs 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 - u/
Or.XXII r.10A, 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 - Failure of a party to perform the duty u/r.10A constitutes
a wrongful act and such party must not be allowed to avail the
benefit arising therefrom in the form of abatement - High Court
erred in holding that Or.XXII r.10A is not mandatory and would
not override the mandatory provisions relating to abatement in
Or.XXII r.4 - Court should know how to apply the provision in the
facts of each case - Line of reasoning adopted by the High Court
if upheld would render Or.XXII r.10A otiose - Lawyer appearing
for the defendants also kept quiet and proceeded to argue the
matter on merits, smacks of lack of good faith - Thus, impugned
order set aside - Matter remanded to the High Court. [Paras 23,
24, 58, 59, 65-73]
Code of Civil Procedure, 1908 - Or.XXII r.10A - Duty of pleader:
Held: Providing merely an information with regard to the fact of
death is not sufficient compliance of the r.10A 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 u/r.10A 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. [Para 63]
Code of Civil Procedure, 1908 - Or.XXII r.10A - Duty of pleader
to communicate to Court death of a party - Scope, objective
and rationale of Or.XXII r. 10A - Nature of salutary provision
of Or.XXII r.10A - Stated. [Paras 29-44, 50]
Maxims - 'ex injuria ius non oritur' and 'nullus commodum
capere potest de injuria sua propia' - Distinction between:
[2025] 8 S.C.R.
105
Binod Pathak & Ors. v. Shankar Choudhary & Ors.
Held: Maxim 'ex injuria ius non oritur' is a principle that a right
cannot emanate or emerge from a wrongful act, and the maxim
'nullus commodum capere potest de injuria sua propria', confirms
the general rule of equity and prudence that no one can benefit
from their own wrongdoing - Scope of the latter is wider than the
former - 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 - Maxim solidifies the faith in law
that no wrong action will be given a legal validity - Maxim, 'nullus
commodum capere potest de injuria sua propria', on the other hand,
lays itself as a rule of equity - Advantage falling from wrongdoing
may be a legal or illegal advantage - Maxim dictates that, no profit
or advantage of a person's wrongful act may be validated by the
seal of law - Interpretation of Ord. XXII r.10A is a manifestation of
the latter and not the former - Thus, the principle that no party can
take advantage of his/her own wrong, 'nullus commodum capere
potest de injuria sua propria' is squarely attracted in the event of
a failure in complying with the provision of r.10A of Ord. XXII CPC,
and any abatement as a result of such wrongdoing or failure ought
not to be validated by the courts - Thus, 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. [Paras 45-54]
Judicial deprecation - Procedural errors by High Court -
Disappointment with the manner in which the High Court dealt
with the Second Appeal and its understanding as regards the
position of law on provisions of Ord. XXII r.10A CPC - High
Court took the view that in the absence of the legal heirs
being substituted in accordance with the provisions of Ord.
XXII r.4 CPC, the first appellate court could not have heard the
first appeal on merits and decided the same in favour of the
plaintiffs; and that the first appeal had already stood abated
as the decree was joint and indivisible - Such procedural
errors not expected at the level of any High Court - Code of
Civil Procedure, 1908. [Paras 12, 13, 23]
106
[2025] 8 S.C.R.
Supreme Court Reports
Case Law Cited
Gangadhar v. Raj Kumar (1984) 1 SCC 121; United Bank of
India v. Kanan Bala [1987] 2 SCR 1090 : (1987) 2 SCC 583;
Kathpalia v. Lakhmir Singh (1984) 4 SCC 66; Kusheshwar Prasad
Singh v. State of Bihar [2007] 4 SCR 95 : (2007) 11 SCC 447;
Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi Amma
(Dead) by Lrs. and Others [2008] 11 SCR 1 : (2008) 8 SCC 321;
P. Jesaya (dead) by Lrs. v. Sub-collector and Anr. (2004) 13 SCC
431 - referred to.
Books and Periodicals Cited
Schwebel, Stephen M. "Clean Hands, Principle" Eds., Rüdiger
Wolfrum, Oxford University Press, 2009; Aaron X. Fellmeth and
Maurice Horwitz "Guide to Latin Maxims in International Law"
1st Ed., Oxford University Press; 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) - referred to.
List of Acts
Code of Civil Procedure, 1908; Code of Civil Procedure (Amendment)
Act, 1976; Code of Criminal Procedure, 1973.
List of Keywords
Abatement; Duty of pleader; Intimate court about death of client;
Doctrine of clean hands; Maxim 'ex injuria ius non oritur'; Maxim
'nullus commodum capere potest de injuria sua propia'; Procedural
errors; Non-substitution of legal heirs; Contract between client
and pleader; Statement of Objects and Reasons for the Code
of Civil Procedure (Amendment) Bill, 1976; First appellate court;
Scope, objective and rationale of Or.XXII r.10A CPC; Nature of
salutary provision of Or.XXII r.10A CPC; Procedural errors by
High Court.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7706 of 2025
From the Judgment and Order dated 22.10.2014 of the High Court
of Judicature at Patna in SA No. 190 of 2008
[2025] 8 S.C.R.
107
Binod Pathak & Ors. v. Shankar Choudhary & Ors.
Appearances for Parties
Advs. for the Appellants:
Gagan Gupta, Sr. Adv., Jayesh Gaurav, Ishwar Chandra Roy,
Farrukh Rasheed.
Advs. for the Respondents:
Shantanu Sagar, Anil Kumar, Gunjesh Ranjan, Ms. Tara Chauhan,
Manoneet Dwivedi, Gopal Jha, Prem Prakash, Kanhaiya Priyadarshi.
Judgment / Order of the Supreme Court
Judgment
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
* Ed. Note: Pagination as per the original Judgment.
108
[2025] 8 S.C.R.
Supreme Court Reports
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: -
(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?
[2025] 8 S.C.R.
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Binod Pathak & Ors. v. Shankar Choudhary & Ors.
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: -
"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.
I have already recorded finding that defendants
(respondents) have constructed house and structures on
110
[2025] 8 S.C.R.
Supreme Court Reports
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 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
[2025] 8 S.C.R.
111
Binod Pathak & Ors. v. Shankar Choudhary & Ors.
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. 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
112
[2025] 8 S.C.R.
Supreme Court Reports
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 plaintiffrespondents 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 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
[2025] 8 S.C.R.
113
Binod Pathak & Ors. v. Shankar Choudhary & Ors.
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.
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.
114
[2025] 8 S.C.R.
Supreme Court Reports
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.
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
[2025] 8 S.C.R.
115
Binod Pathak & Ors. v. Shankar Choudhary & Ors.
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
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.
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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 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.
[2025] 8 S.C.R.
117
Binod Pathak & Ors. v. Shankar Choudhary & Ors.
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?
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."
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
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Supreme Court Reports
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 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
[2025] 8 S.C.R.
119
Binod Pathak & Ors. v. Shankar Choudhary & Ors.
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 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
120
[2025] 8 S.C.R.
Supreme Court Reports
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.
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.
[2025] 8 S.C.R.
121
Binod Pathak & Ors. v. Shankar Choudhary & Ors.
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."
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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[2025] 8 S.C.R.
Supreme Court Reports
"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.