The Supreme Court has set aside a judgment passed by the Patna High Court, which had abated a second appeal due to the non-substitution of deceased respondents, holding that mere intimation of a party's death does not amount to sufficient compliance with Order XXII Rule 10A of the Code of Civil Procedure.

The Court observed that there is an obligation on the pleader not only to inform the court of the death but also to disclose the legal heirs upon whom the right to sue survives.

A Bench of Justice J.B. Pardiwala and Justice R. Mahadevan observed,"...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.
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The Court added, “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.”

Advocate Jayesh Gaurav appeared for the Appellants, while Advocate on Record Shantanu Sagar represented the Respondents.

Brief Facts

The Appellants (Original Plaintiffs) had filed a suit seeking declaration of title and recovery of possession over certain lands. The Trial Court dismissed the suit. Aggrieved, the Appellants filed a First Appeal, which was allowed by the Additional District Judge. The Appellate Court held in their favour, declaring their title, ordering recovery of possession, and awarding mesne profits.

The Respondents (Original Defendants) challenged this decree before the Patna High Court in a Second Appeal. During the pendency of that appeal, some of the Respondents died. However, their counsel continued appearing without disclosing the deaths, and no application for substitution under Order XXII CPC was filed.

Despite this, the High Court allowed the appeal, holding that the suit had abated due to non-substitution of legal representatives and restored the Trial Court’s decree. The Appellants, unaware of the deaths and not given a chance to respond, approached the Supreme Court.

Reasoning of the Court

The Court observed that the Patna High Court had committed a serious procedural error in failing to consider Order XXII Rule 10A CPC, which was inserted to prevent such eventualities. Rule 10A mandates that when a party dies during the pendency of a proceeding, their advocate must inform the court and the other side.

The Court explained, “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… 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.”

It rejected the High Court’s view that Rule 10A is not mandatory, stating, “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 contained in Order XXII Rule 4 of the CPC. We are afraid, the understanding of the High Court is not correct.”

The Court observed that if Rule 10A were treated as optional, it would become meaningless, noting, “The line of reasoning adopted by the High Court if upheld would render Order XXII Rule 10A otiose.”

The Court further criticised the conduct of the counsel for the Respondents who failed to inform the Court about the deaths, observing, “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.”

Reiterating the principle that a party cannot take advantage of its own wrong, the Bench invoked the maxim nullus commodum capere potest de injuria sua propria and observed, “No party can take advantage of his own wrong. 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.”

Accordingly, the Court found that the High Court’s decision had resulted in a miscarriage of justice and set aside the impugned judgment.

The Court further directed that the Second Appeal be restored to the docket of the Patna High Court for fresh adjudication on merits. It directed that the matter be heard expeditiously and disposed of within three months. The Court also permitted the Appellants to file applications for substitution of deceased parties, if necessary.

Cause Title: Binod Pathak & Ors. v. Shankar Choudhary & Ors. (Civil Appeal No. 7706 of 2025 (Arising out of SLP (C) No. 153)

Appearance:

Appellants: AoR Farrukh Rasheed; Advocates Jayesh Gaurav, Diksha Ojha, Ishwar Chandra Roy

Respondents: AoRs Shantanu Sagar, Gopal Jha, Prem Prakash, Kanhaiya Priyadarshi; Advocates Anil Kumar, Gunjesh Ranjan, Manoneet Dwivedi, Prakash Kumarmangalam, Abhishek Kumar Gupta

Click here to read/download Judgment


Justice J.B. PardiwalaJustice R. Mahadevan

Namrata Banerjee

Supreme Court Correspondent

Namrata is a Correspondent covering the Supreme Court of India. She has previously practiced law and worked in-house with a Public Sector Undertaking.