Pleader’s Failure To Inform Client’s Death Must Not Defeat Suit; Supreme Court Remands Second Appeal For Fresh Hearing

A bench of Justices J. B. Pardiwala and R. Mahadevan heard Civil Appeal No. 7706 of 2025 arising from a Special Leave Petition and considered whether the Patna High Court erred in setting aside a first appellate decree on the ground that several respondents had died and their legal representatives were not substituted, and in particular the interplay between Order XXII Rule 4 and the duty cast on pleaders by Order XXII Rule 10A of the Code of Civil Procedure.

The Supreme Court partly allowed the appeal, set aside the impugned High Court order and restored the Second Appeal to its file for fresh hearing. The Court emphasised that Order XXII Rule 10A was a “salutary” provision introduced to avoid procedural technicalities prevailing over substantial justice and held that failure by a pleader to inform the court of the death of a party could not be allowed to confer an unfair advantage. The Court noted that “It is nobody's case that there was compliance of this rule in the case at hand” and expressed disappointment with the High Court’s treatment of the matter: “We regret to state that we are thoroughly disappointed with the manner in which the High Court dealt with the Second Appeal.” The Court, in its reasoning, observed: “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.” The Court directed the High Court to hear the Second Appeal afresh and decide it within three months, with further directions on how to proceed depending on whether the decree was held joint and indivisible.

Background

The dispute arose from Title Suit No. 106 of 1984 filed by the original plaintiffs for declaration of title and recovery of possession of agricultural land in Gopalganj, Bihar. The trial court dismissed the suit in 1989. The plaintiffs succeeded in a first appeal before the Additional District Judge, which reversed the trial court and decreed the suit in 2009. The original defendants challenged that decree in Second Appeal No. 190 of 2008 before the Patna High Court. During the pendency of proceedings, it emerged that several respondents in the first appellate proceedings had died and their heirs had not been substituted in accordance with Order XXII Rule 4 CPC. The High Court held that because the decree was “joint and inseverable” the first appeal had abated and set aside the appellate decree.

Before the Supreme Court the original plaintiffs contended that the High Court failed to appreciate the statutory duty under Order XXII Rule 10A — inserted by the 1976 Amendment — which cast on a pleader the obligation to inform the Court upon coming to know of a party’s death, and to enable the opposite side to take steps for substitution. The respondents argued that Rule 4’s abatement provisions prevailed.

The Supreme Court analysed the statutory scheme and legislative intent behind Rule 10A, noting the rule’s object to “mitigate the hardship” where a party died during protracted proceedings and to prevent procedural lapses from defeating substantive rights. The Court explained the distinction between legal maxims and relied on equitable principles, holding that where a pleader knew of a client’s death but did not inform the court or the other side and proceeded to argue the appeal, such conduct could not be allowed to produce an unfair gain. The Court recalled earlier authorities and observed that Rule 10A was procedural and salutary; non-compliance was not met with a specific statutory penalty but could not be used as a sword to obtain abatement. The Supreme Court therefore set aside the High Court order, restored the Second Appeal to the High Court file and remanded the matter for fresh consideration consistent with its legal analysis. The Court directed the High Court to determine whether the decree was joint and indivisible; if so, it was to remit to the first appellate court to permit the plaintiffs to apply for setting aside abatement and for substitution of heirs; if not, the High Court was to decide the Second Appeal on merits. The High Court was to conclude the rehearing within three months.

Case Details: Case No.: Civil Appeal No. 7706 of 2025 (Arising out of SLP (C) No. 1536 of 2015) Case Title: BINOD PATHAK & ORS. v. SHANKAR CHOUDHARY & ORS. Appearances: For the Petitioner(s): Mr. Gagan Gupta (learned counsel) For the Respondent(s): Mr. Shantanu Sagar (learned counsel)