In a significant ruling, the Supreme Court of India, in Civil Appeal No. 7706 of 2025 (arising out of Special Leave Petition (C) No. 1536 of 2015), addressed the critical legal issue of abatement of appeals due to the non-substitution of legal heirs, particularly focusing on the interplay between Order XXII Rule 4 and Rule 10A of the Code of Civil Procedure, 1908 (CPC). The Court, comprising Justices J.B. Pardiwala and R. Mahadevan, set aside a judgment of the High Court of Judicature at Patna, emphasizing that parties cannot benefit from their own wrongful omission to inform the court about the death of a litigant. The matter has been remanded to the High Court for a fresh hearing, with specific directions regarding the determination of the decree’s nature.
Background of the Case
The dispute originated from Title Suit No. 106 of 1984, filed by Binod Pathak & Ors. (original plaintiffs/appellants) in the Court of the Sub Judge (I), Gopalganj, seeking declaration of title and recovery of possession of suit land. The trial court dismissed the suit via judgment and decree dated July 5, 1989, finding that the plaintiffs had failed to establish their case.
Aggrieved by this decision, the plaintiffs filed a First Appeal (Title Appeal No. 60/1989, renumbered as Title Appeal No. 58 of 2007) before the Additional District Judge – (I), Gopalganj. The First Appellate Court allowed the appeal on June 2, 2009, setting aside the trial court’s judgment and decreeing the suit in favor of the plaintiffs. The court held, “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.”
Subsequently, Shankar Choudhary & Ors. (original defendants/respondents) challenged the First Appellate Court’s decision in Second Appeal No. 190 of 2008 before the High Court. During the hearing of the Second Appeal, it came to the High Court’s notice that some of the respondents before the First Appellate Court (original defendants) had passed away, and their legal heirs had not been brought on record. The High Court concluded that, in the absence of substitution of legal heirs under Order XXII Rule 4 CPC, the First Appeal had abated, particularly because the decree was considered “joint and indivisible.” Consequently, the High Court allowed the Second Appeal, setting aside the First Appellate Court’s judgment.
Arguments of the Parties
Mr. Gagan Gupta, learned counsel for the appellants/original plaintiffs, vehemently contended that the High Court’s judgment was erroneous and in gross violation of Order XXII Rule 10A of the CPC. He submitted that the respondents in the First Appeal deliberately failed to inform the plaintiffs or the court about the deaths of some defendants, allowing the appeal to proceed on merits. Mr. Gupta argued that even with the deaths, the entire appeal should not have abated, providing a chart to demonstrate that several deceased respondents were “Performa respondents” or their legal heirs were subsequently impleaded.
Conversely, Mr. Shantanu Sagar, learned counsel for the respondents/original defendants, maintained that the High Court committed no error. He asserted that the provisions of Order XXII Rule 4 CPC would override those of Order XXII Rule 10A CPC, thereby justifying the High Court’s decision regarding abatement.
Court’s Analysis
The Supreme Court expressed “thorough disappointment 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.” The Court noted that it was undisputed that Order XXII Rule 10A CPC had not been complied with. The Court observed, “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.”
The Court meticulously examined the relevant statutory provisions, including Order XXII Rules 1, 2, 4, 4A, and 10A of the CPC. It highlighted that Rule 10A, inserted by the Code of Civil Procedure (Amendment) Act, 1976, imposes an obligation on the pleader of a party to communicate the death of that party to the court, with a deeming fiction that the contract between the pleader and the deceased party subsists for this purpose. This rule is intended 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.” While acknowledging that Rule 10A is not “absolutely mandatory” (referencing United Bank of India v. Kanan Bala), the Court stated that failure to comply should be considered a “good and sufficient ground for condonation of delay” (Kathpalia v. Lakhmir Singh).
Crucially, the Supreme Court distinguished between two legal maxims: ‘ex injuria ius non oritur’ (“from wrong, no right arises”) and ‘nullus commodum capere potest de injuria sua propria’ (“no one can take advantage of their own wrong”). The Court clarified that while the former pertains to a ‘right’ emanating from a wrongful act, the latter, with a wider scope, confirms the equitable rule that no one can benefit from their own wrongdoing. The Court unequivocally held that “the underlying ethos of Order XXII, Rule 10A is not based on the maxim of ‘ex injuria ius non oritur’,” but rather on ‘nullus commodum capere potest de injuria sua propria’. The Court stated, “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.” In support, the Court cited Kusheshwar Prasad Singh v State of Bihar, which reiterated that “a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law.”
The Court further clarified that the duty of a pleader under Rule 10A extends beyond merely informing the court of a death; it also includes furnishing “the details of the persons on whom and against whom the right to sue survives.” The Court referred to Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi Amma (Dead) by Lrs. and Others to underscore the liberal approach courts adopt in setting aside abatement, noting that “the courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.”
The Supreme Court found the High Court’s understanding that Order XXII Rule 10A is not mandatory and would not override Rule 4 CPC to be incorrect, stating, “The line of reasoning adopted by the High Court if upheld would render Order XXII Rule 10A otiose.” The Court highlighted that the defendants had not claimed the plaintiffs had knowledge of the deaths. The Court concluded that the defendants’ conduct, in keeping quiet about the deaths during the First Appeal and then raising the abatement issue in the Second Appeal, “smacks of lack of good faith.” The Court drew parallels with its decision in P. Jesaya (dead) by Lrs. v. Sub-collector and Anr., where similar tactics were condemned as an “attempt to take not just the other side but also the court for a ride.”
Decision
In light of its analysis, the Supreme Court partly allowed the appeal, setting aside the impugned judgment and order of the High Court. The matter has been remanded to the High Court for a fresh hearing of Second Appeal No. 190 of 2008.
The Supreme Court issued specific directions to the High Court:
- The High Court shall first determine whether the decree is “joint and indivisible.”
- If the High Court concludes that the decree is joint and indivisible and the entire First Appeal abated due to the death of some defendants, it shall remand the matter to the First Appellate Court. The First Appellate Court will then provide an opportunity to the plaintiffs to file an appropriate application for setting aside the abatement and bringing the legal heirs on record, and thereafter hear the First Appeal on its own merits.
- If the High Court concludes that the First Appeal as a whole did not abate because the nature of the decree is such that it cannot be said to be joint and indivisible, then the High Court shall proceed to hear the Second Appeal on its own merits on other issues involved in the litigation.
Given that the litigation dates back to 1984, the Supreme Court directed the High Court to take up 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. The High Court is also required to inform the Supreme Court about the disposal of the second appeal.
