Litigant’s Actual Knowledge Of Demise Makes Advocate's Duty Under Order XXII Rule 10A CPC Inconsequential: Bombay High Court
A vague plea of attorney error cannot justify a 24-year delay when the plaintiff suppressed personal knowledge of a party’s death; slams ₹1 Lakh cost.
The Bombay High Court has held that the procedural obligation of a lawyer to inform the Court of a party’s death under Order XXII Rule 10A of the Code of Civil Procedure, 1908, is "inconsequential" if the litigant already possesses actual knowledge of the demise. Finding the appeal to be a continuation of an untenable litigation strategy, the Court enhanced the costs from the original ₹10,000 to a "more realistic" sum of ₹1,00,000.
The Court clarified that this procedural safeguard was introduced to ensure substantial justice and cannot be used by a party to nullify the consequences of their own lackadaisical conduct. The Court further held that a vague plea of attorney error or negligence by a pleader, unsupported by a satisfactory explanation for the entire period of delay, is insufficient to justify condoning a lapse of over two decades.
Justice Farhan P. Dubash observed, “…orders dated 31st July 1992 and 11th September 1992 passed therein also clearly show that the Plaintiff had full knowledge of these details since 1992. In these circumstances, the Plaintiff’s reliance on Order XXII Rule 10A of the CPC to contend that despite his said knowledge in the other proceedings, the present suit could not be said to abate on account of non-compliance with the said provisions, is entirely misconceived and I have no hesitation in rejecting this argument which runs contrary to the legislative intent behind its introduction...”.
Advocate Salil Shah appeared for the appellant and Advocate Mutahhar Khan appeared for the respondents.
The dispute involved S.C. Suit No. 68 of 1987, seeking a declaration of 2/3rd ownership and partition of a property known as "Sant Sadan" in Pali Hill, Mumbai. The first defendant, Natha Singh Sant Singh Chawla, passed away on October 29, 1990. Although the plaintiff participated in litigation regarding the same death in the Small Causes Court in 1991, he failed to implead the heirs in the partition suit for approximately 24 years.
Thereafter, the Trial Court dismissed the plaintiff’s application for condonation of delay and setting aside abatement in 2019, noting the suppression of material facts. The plaintiff challenged this dismissal, arguing that he was incarcerated in Tihar Jail for 13 years and that his advocates failed to properly apprise him of the procedural requirements under Order XXII Rule 10A.
The High Court held that the plaintiff’s reliance on the lawyer’s duty under Rule 10A was "entirely misconceived" given his established personal knowledge. The Court observed that the appellant had not only failed to pay the previously imposed trial costs but also forced the respondents into seven additional years of litigation. The Court reiterated that the law assists the vigilant, not those who sleep over their rights or approach the seat of justice with falsehoods.
“…the explanation that the Plaintiff acted through a constituted attorney and/or that his advocate did not take proper steps to explain the matter to him, does not constitute sufficient cause in the facts of the present case. A vague plea of attorney error or negligence, unsupported by a satisfactory account of the entire delay, cannot justify condonation of the huge delay of over two decades. This is more so in the facts of the present case where the parties were engaged in litigation across multiple fora across the city…”, the Bench noted.
“…the Plaintiff has chosen to file the present Appeal and reiterate the same untenable plea/s before this Court despite clear and unequivocal documentary evidence. As a result, the Respondents have been constrained to spend 7 further years in litigation (from 2019 till date) in order to defend this Appeal and in the bargain, incur additional litigation expenses. Considering this conduct, whilst dismissing this Appeal, I am constrained to increase this amount and impose more realistic costs of Rs. 1,00,000/- on the Appellant which shall be payable by him to the contesting Respondents within a period of 30 days from the date of uploading of this order”, the Bench directed.
Cause Title: Romesh Satyanarayan Sharma v. Swaran Singh Chawla & Ors. (Neutral Citation: 2026:BHC-AS:17872)
Appearances:
Appellant: Salil Shah a/w Mr. Hemang Engineer i/b Jitendra Shukla for Appellant; Mr. Mutahhar Khan a/w Mr. Duj Jain i/b Kiran Jain & Co., Advocates.
Respondents: Mutahhar Khan a/w Duj Jain i/b Kiran Jain & Co, Advocates.