Holding

Non‑compliance with Order XXII Rule 10A CPC bars a party from invoking abatement, and the High Court’s order is set aside.

Summary

The plaintiffs filed a title suit in 1984 which was dismissed by the trial court but later allowed by the first appellate court. The defendants appealed, and the High Court set aside the first appellate court's decree, holding that several defendants had died during the pendency of the first appeal and their legal heirs were not substituted, thereby causing abatement of the appeal. The Supreme Court examined whether the High Court correctly applied Order XXII Rule 4 and Rule 10A of the CPC, emphasizing the pleader's duty to inform the court of a party's death and the consequences of non‑compliance. It held that Rule 10A, though not penal, is a mandatory duty whose breach cannot be used to obtain the advantage of abatement, invoking the maxim “nullus commodum capere potest de injuria sua propria”. Consequently, the Court set aside the High Court’s order, remanded the matter for fresh hearing, and partially allowed the appeal. The decision underscores that procedural lapses by counsel cannot be allowed to defeat substantive justice.

Issues considered

The applicability of Order XXII Rule 4 CPC when a defendant dies and legal heirs are not substituted.
Whether non‑compliance with Order XXII Rule 10A CPC by the pleader defeats the right to claim abatement of the appeal.
Whether the High Court erred in treating Order XXII Rule 10A as non‑mandatory and allowing it to be overridden by the abatement provisions.
The effect of the maxim ‘nullus commodum capere potest de injuria sua propria’ on the abatement claim.

Legislation cited

Code of Civil Procedure, 1908s. Order XXII Rule 1, s. Order XXII Rule 10A, s. Order XXII Rule 2, s. Order XXII Rule 4
Code of Civil Procedure (Amendment) Act, 1976s. Insertion of Order XXII Rule 10A
Code of Criminal Procedure, 1973
Limitation Act, 1963s. Section 5

Headnote

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 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

Subjects

AbatementDuty of pleaderIntimate court about death of clientDoctrine of clean handsMaxim ‘ex injuria ius non oritur’Maxim ‘nullus commodum capere potest de injuria sua propia’Procedural errorsNon-substitution of legal heirsContract between client and pleaderStatement of Objects and Reasons for the Code of Civil Procedure (Amendment) Bill, 1976First appellate courtScope, objective and rationale of Or.XXII r.10A CPCNature of salutary provision of Or.XXII r.10A CPCProcedural errors by High Court

Judgment

[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.

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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.

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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.

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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. 109

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.

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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.

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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 plaintiff-
respondents 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.

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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 Position Position Particulars
before before the before this
the Trial High Court Court
Court
1. Hari Lal Defendant Appellant Respondent No Dispute
Choudhary No. 5 No. 6 No. 6 w.r.t
(First Sale abatement
Deed)
2. Yamuna Defendant His LRs His LRs are No Dispute
Choudhary No. 6 were Respondents w.r.t
(Second Sale Appellants Nos. 8,11 abatement
Deed) Nos. 11 & and 12
12
[2025] 8 S.C.R. 115

Binod Pathak & Ors. v. Shankar Choudhary & Ors.

3. Khobari Defendant His LRs His LRs are No Dispute
Choudhary No. 1 were Respondents w.r.t
(Third Sale Appellants Nos. 1-3 abatement
Deed) Nos. 1-3
4. Bihari Defendant Appellant Respondent No Dispute
Choudhary No. 2 No. 4 No. 4 w.r.t
(Third Sale abatement
Deed)
5. Sheonath Defendant His LRs His LRs are Dispute w.r.t.
Choudhary No. 3 were Respondents abatement
(Fourth Sale Appellants Nos. 30-33 (As he died
Deed) Nos. 10-13 on 07.5.1997
during First
Appeal
however in the
Second Appeal
his LRs were
Impleaded.
6. Baijnath Defendant Appellant Respondent No Dispute
Choudhary No. 4 No. 5 No. 5 w.r.t
(Fourth Sale abatement
Deed)

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 Position Particulars
before the before this
High Court Court

1. Sheo His LRs were His LRs are His LRs were not
Nandan Appellant Respondents impleaded in First
Choudhary No. 10 & Nos. 10 and Appeal but he has
(Died on Respondent Nos. 36-41 no connection with
07.05.1997) Nos. 14-20 the impugned sale
deeds and LRs
were impleaded in
the High Court.

2. Dipiya Not a Party. Not a Party. No connection
(Died on with the impugned
07.08.1999) sale deeds or the
proceedings.
116 [2025] 8 S.C.R.

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3. Bachha Not a Party. Not a Party. No connection
Bhagat with the impugned
(Died on sale deeds or the
05.04.2003) proceedings.

4. Nagina Not a Party. Not a Party. No connection
Bhagat with the impugned
(Died on sale deeds or the
05.11.2005) proceedings.

5. Md. Islam His LRs were His LRs are No connection
(Died on Respondents Respondents with the impugned
08.03.2001) Nos. 27 & 28 Nos. 46 & 47 sale deeds or the
proceedings.

6. Sheo Dhari His LRs were His LRs are No connection
Bhagat Respondents Respondents with the impugned
(Died on Nos. 29 & 30 Nos. 48 & 49 sale deeds or the
08.07.2008 proceedings.
i.e., after the
passing of
the judgment
in First
Appeal)

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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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.

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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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“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. As a general rule, therefore, on the death
of the client his contract with the pleader comes to an end. So also,
his authority to act on behalf of his client expires.
39. Rule 10A, as inserted by the Amendment Act, 1976 carves out
an exception to the above general rule and casts a duty upon the
advocate appearing for the party to intimate the court about the death
of his client. For this purpose, a deeming fiction has been created
that the contract between the (deceased) client and the pleader
subsists to that limited extent. [See: Gangadhar v. Raj Kumar,
(1984) 1 SCC 121]
40. Rule 10A of Order XXII is salutary in nature. It has been introduced
to mitigate hardship arising from the fact that a suit, appeal or other
proceeding may take long time and a party to a suit, appeal or
other proceeding may die and the other party may not be aware
of such a situation. Rule 10A seeks to do justice over technicalities
by requiring an advocate appearing for the party to intimate the
court about the death of his client and provides an opportunity to
the other side to take necessary steps to bring heirs and legal
representatives of the deceased party on record. Rule 10A is thus
not an empty formality. Pre-eminent object of the rule is to do full
and complete justice.
[2025] 8 S.C.R. 123

Binod Pathak & Ors. v. Shankar Choudhary & Ors.

a. Rationale behind Order XXII Rule 10A.
41. An “innovative provision” in the form of Rule 10A has been introduced
by the Amendment Act, 1976 in the Code to avoid procedural
technicality scoring march over substantial justice.
42. In Gangadhar (supra), dealing with the object underlying Rule 10A,
this Court observed that it was introduced to mitigate the hardship
arising from the fact that the party to a suit or appeal, as the case
may be, may not come to know about the death of the other party
during the pendency of such suit or appeal. A suit or appeal takes
years to come up for hearing and it is very difficult to expect the
other party to be a watch-dog for day-to-day survival of his opponent.
Then when the suit / appeal comes up for hearing, it comes to
the light that not only one of the parties to the suit / appeal had
died but the time for substitution had also run out and the suit or
appeal had abated. It is with a view to avoid technicalities and to
do full and complete justice that an important provision has been
inserted in CPC, in the form of Order XXII Rule 10A, requiring the
advocate appearing for the party to inform death of his client to
the court so as to enable the other side to take appropriate steps
to bring on record legal representatives of the deceased. For that
purpose, a deeming fiction is introduced that the contract between
the dead client and pleader will subsist to the limited extent to
supply information to the court about the death of his client. This
Court stated that: -
“The Legislative intention of casting a burden on the learned
advocate of a party to give intimation of the death of the
party represented by him and for this limited purpose to
introduce a deeming fiction of the contract being kept
subsisting between the learned advocate and the deceased
party was that the other party may not be taken unawares
at the time of hearing of the appeal by springing surprise
on it that the respondent is dead and appeal has abated.
In order to avoid procedural justice scoring a march over
substantial justice Rule 10-A was introduced by the Code
of Civil Procedure (Amendment) Act of 1976 which came
into force on February 1, 1977.”
(Emphasis supplied)
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b. Nature of the salutary provision of Order XXII Rule 10A.
43. Rule 10A is procedural in nature. No penalty is provided for non-
compliance with the rule. The provision is not “absolutely mandatory”
[See: United Bank of India v. Kanan Bala, (1987) 2 SCC 583].
44. The new provision has been inserted with a view that just delay in
preferring substitution application may not be put forward a ground
for dismissal of the application. Since a lawyer for the party is obliged
to inform the court about the death of his client, his failure to do so
should be treated as good and sufficient ground for condonation of
delay. [See: Kathpalia v. Lakhmir Singh, (1984) 4 SCC 66].

I. Distinction between the legal maxims ‘ex injuria ius non
oritur’ and ‘nullus commodum capere potest de injuria
sua propia’.
45. The genesis of the provision of Rule 10A of the Order XXII lies in
the doctrine of ‘clean hands’. The doctrine of ‘clean hands’ originates
from the Roman Law, and finds expression in two latin maxims being
(i) ex injuria ius non oritur and (ii) nullus commodum capere potest
de injuria sua propia, which mean “from wrong, no right arises” and
“no one can take advantage of their own wrong”, respectively. [See:
Schwebel, Stephen M. “Clean Hands, Principle” Eds., Rüdiger
Wolfrum, Oxford University Press, 2009].
46. Although the aforesaid two maxims, semantically appear to be one
and the same, with the courts often applying the two interchangeably,
yet there lies a very fine but pertinent distinction between the two
maxims. The two maxims are comparable to each other but they
are not interchangeable, and differ in their scope. Aaron X. Fellmeth
and Maurice Horwitz in the “Guide to Latin Maxims in International
Law” 1st Ed., Oxford University Press, has explained the maxim ex
injuria ius non oritur as follows: -
“A right does not arise from wrongdoing.” A maxim meaning
that one cannot generally rely on a violation of law to
establish a new legal right or to confirm a claimed right.
E.g., “As Lauterpacht has indicated the maxim ex injuria
ius non oritur is not so severe as to deny that any source
of right whatever can accrue to third persons acting in
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Binod Pathak & Ors. v. Shankar Choudhary & Ors.

good faith. Were it otherwise the general interest in the
security of transactions would be too greatly invaded and
the cause of minimizing needless hardship and friction
would be hindered rather than helped.” Advisory Opinion
on Legal Consequences For States Of The Continued
Presence Of South Africa In Namibia (South West Africa)
Notwithstanding Security Council Resolution 276 (1970),
1971 I.C.J. Rep. 16, 167 (separate opinion of Judge
Dillard). An alternative formulation is Ius ex iniuria non
oritur. Compare with Nullus commodum capere (potest)
de sua iniuria propria.”
(Emphasis supplied)

47. On the other hand, they have explained the maxim ‘nullus commodum
capere potest de injuria sua propia’ as follows: -
“No advantage (may be) gained from one’s own wrong.” A
maxim meaning that the law will not recognize or validate
any profit a person derives from his own wrongdoing. For
example, one may not destroy evidence of the extent of
damages caused by one’s illegal act, then counter a claim
for damages based on that act by pointing to the lack of
evidence. E.g., “[T]he State must not be allowed to benefit
by its inconsistency when it is through its own wrong or
illegal act that the other party has been deprived of its
right or prevented from exercising it [...]”
(Emphasis supplied)

48. A perusal of the aforesaid makes it abundantly clear, that while the
maxim ‘ex injuria ius non oritur’ is a principle governing the general
spirit of the jurisprudence of “rights”, that a right cannot emanate or
emerge from a wrongful act, the maxim ‘nullus commodum capere
potest de injuria sua propria’, on the other hand, confirms the general
rule of equity and prudence that no one can benefit from their own
wrongdoing. The scope of the latter is wider than the former. The
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. Although, under the law, a right may arise even if from a
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wrongdoing, yet if exercise of such right is allowed, it would malign
the very jurisprudential underpinning of ‘right’ and ‘duty’. A right has
a legal sanctity and backing to it, in order for it to have a legitimising
effect, since the jural correlative of a right is duty. More particularly,
the term “right” is very specific to not include every benefit, profit or
advantage. The maxim solidifies the faith in law that no wrong action
will be given a legal validity. The legal validity of a right flows from
other legal norms or from a source of law [See: 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)].
49. The maxim, ‘nullus commodum capere potest de injuria sua propria’,
on the other hand, lays itself as a rule of equity. An advantage falling
from wrongdoing may be a legal or illegal advantage. The maxim
dictates that, be that as it may, no profit or advantage of a person’s
wrongful act may be validated by the seal of law. It may very well
happen, that the advantage may be legal or illegal, but the validation
of law will not be extended to it by the law. Thus, the courts that have
the discretion to allow or disallow the availment of such advantage
in ordinary circumstances, are constrained to not permit a person
who has committed a wrongful act to benefit from the advantageous
position afforded to him because of such wrongful action as a matter
of justice, equity and fairness. Fellmeth and Horwitz rightly extend an
illustration, that when a person himself destroys evidence, he cannot
take shelter of the defence of lack of evidence. The advantage falling
from the wrong will not be validated by the courts of law.
50. The interpretation of Order XXII Rule 10A is a manifestation of the
latter and not the former i.e., the cornerstone of its nature and the
effect is the maxim ‘nullus commodum capere potest de injuria sua
propria’ or no one should derive benefit from their own wrong. This is
because of the procedural nature of the provision as held in Kanan
Bala (supra) and a catena of other decisions of this Court. Although,
the provision aims to do justice over technicalities by casting a duty
upon the pleader to apprise the court as-well as all parties about the
demise of his client, yet it does not prescribe any penalty for the non-
compliance of the same, wilful or inadvertent. A pleader may not be
put to the perils of any penalty for his failure in performing the duty
under Rule 10A in law, yet it does not mean that such failure would
also be of no bearing in equity or of inconsequence to the ultimate
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abatement of the suit or appeal. 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. To ignore such lapses in equity
would render Rule 10A completely otiose and do violence to the
legislative intent behind it.
51. 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.
52. In Kusheshwar Prasad Singh v State of Bihar, (2007) 11 SCC
447, it was held that the aforesaid maxim is based on elementary
principles, is fully recognised in courts of law and of equity, and,
admits of illustration from every branch of legal procedure. The
relevant observations read as under: -
“14. In this connection, our attention has been invited by
the learned counsel for the appellant to a decision of this
Court in Mrutunjay Pani v. Narmada Bala Sasmal [AIR
1961 SC 1353] wherein it was held by this Court that
where an obligation is cast on a party and he commits a
breach of such obligation, he cannot be permitted to take
advantage of such situation. This is based on the Latin
maxim commodum ex injuria sua nemo habere debet (no
party can_take undue advantage of his own wrong).
15. In Union of India v. Major General Madan Lal Yadav
[(1996) 4 SCC 127: 1996 SCC (Cri) 592] the accused
army personnel himself was responsible for delay as he
escaped from detention. Then he raised an objection
against initiation of proceedings on the ground that such
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proceedings ought to have been initiated within six months
under the Army Act, 1950. Referring to the above maxim,
this_Court held that the accused could not take undue
advantage of his own wrong. Considering the relevant
provisions of the Act, the Court held that presence of the
accused was an essential condition for the commencement
of trial and when the accused did not make himself
available, he could not be allowed to raise a contention
that proceedings were time-barred. This Court (at SCC
p. 142, para 28) referred to Broom’s Legal Maxims (10th
Edn.), p. 191 wherein it was stated:
“It is a maxim of law, recognised and established, that
no man shall take advantage of his own wrong; and this
maxim. which is based on elementary principles, is fully
recognised in courts of law and of equity, and, indeed,
admits of illustration from every branch of legal procedure.”
16. It is settled principle of law that a man cannot be
permitted to take undue and unfair advantage of his own
wrong to gain favourable interpretation of law. It is sound
principle that he who prevents a thing from being done
shall not avail himself of the non-performance he has
occasioned. To put it differently, “a wrongdoer ought not
to be permitted to make a profit out of his own wrong”.
(emphasis supplied)

53. We would like to remind the High Court of this very important legal
maxim of ‘nullus commodum capere potest de inuria sua propria’.
It is the duty of the court to ensure that dishonesty or any attempt
to abuse the legal process must be effectively curbed and the court
must ensure that there is no wrongful, unauthorised or unjust gain
for anyone by abusing of the process of the court. No one should
be permitted to use the judicial process for earning undeserved
gains for unjust profits. The courts’ constant endeavour should be
to ensure that everyone gets just and fair treatment.
54. We may clarify with a view to obviate any possibility of confusion
that 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
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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. In
case of the first maxim, had the right not emanated from a wrongful
act, it would have been cemented in law and the person in whose
favour such right had accrued, could have pleaded for vindication of
the same, with sufficient guarantee, that his plea would be accepted
by the court. However, in the case of the second maxim, if the
advantage was not being derived from a wrongful act, the courts
would nevertheless still have the discretion to hold whether the
person in whose favour such advantage had arisen, could avail such
advantage or not. While in such a case there would be no embargo
on the courts to deny the advantage to the person eligible to benefit
from the same, the courts could still rule that such person could
not avail the benefit. Having considered the cases in which there
is no wrong done by the person deriving the right or benefit from
their actions, we shall now see how the wrongful action affects the
conclusion of the courts in both such scenarios as-well. The answer
to this is straightforward. In the first case, when a right accrues to
the person who has committed the wrongful act due to such act, and
while the law regards it as an enforceable right, yet the courts are
armed with power to deny the vindication of such rights, which they
ordinarily could not have done. Put it differently, while the existence
of such rights is undeniable in the eyes of law, yet the exercise or
enforceability of such rights would nevertheless be deniable by the
courts in equity. The way the maxim envisages the application of this
principle is based on one another well-known principle; that equity
cannot supplant the law. When the courts deny the right that may
have accrued by a wrongdoing, the courts in essence are not denying
the right itself i.e., they are not supplanting the right emanating from
a law, rather, they are drawing upon the reservoir of equity within
their conscience, to withhold its enforcement, not to contradict the
law, but to ensure that the law does not become an instrument for
legitimizing its own violation through the hands of courts who are
expected and reposed of the faith to uphold the law in the first place.
Hence, under the first maxim, the courts cannot deny such rights,
as they flow from the law, but any vindication or enforcement can
be if they require the touch of courts, by invoking a higher standard
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of fairness that guards against the instrumentalization of legal rights
as vehicles of injustice.
55. Whereas, when it comes to the second maxim, irrespective of how
the advantage has accrued, it is not an enforceable advantage.
The reason being a simple one, that they are simply not a ‘right’ so
as to have the force or backing of any law. In the absence of any
enforceability flowing from a law or legal norm, the enforcement or
vindication of such advantage as a natural corollary can only flow
from the discretion of the courts, who are required to supply the legal
formalities to make them enforceable in the first place. Hence, the
courts in the case of the latter, being a court of conscience, built
upon the edifice of fair-play, would prohibit inurement of any such
benefit lacking the backing of law by virtue of this discretion and
as a matter of fairness disallow a person who has committed the
wrongful action to avail the benefit or advantage derived from his
own wrong. The second maxim encapsulates the aforesaid principle
and mandates that courts, having the conscience of justice, equity
and fairness, ought to necessarily disallow the benefit of the wrong
to such a person.
56. This distinction marks a crucial difference in the scope of the two
maxims; in the former, equity steps in after the law has recognized a
right, to decide whether justice permits its enforcement; in the latter,
however, equity acts more preemptively, interrogating the moral
propriety of allowing any gain from potentially tainted conduct. In
either case, where no wrong is committed, the courts duty remains
guided by legal principle, more so in the case of the second maxim.
However, in the instance of the first maxim, once wrongdoing results
in contaminating the jural relation of ‘rights and duty’, a shift occurs,
where equity steps in in the sphere of entitlement from such ‘rights’.
57. On the basis of the aforesaid, we are of the considered view that
the underlying ethos of Order XXII, Rule 10A is not based on the
maxim of ‘ex injuria ius non oritur’. A ‘right’ accrues in the eyes of
law through two principal channels: first through the force of any law
or statute itself, and secondly, through acts enabled by the law that
possess the normative force to create enforceable claims backed by
the operation of law or facilitated by conventional legal norms such
as a gift, will, consent, contract etc., acts that have the capacity to
create legal rights. Any legal norm, must possess normativity and
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generality, which together must have such an effect that the norm
ought to become valid in law or through the law, in order for it to
give birth to a right. In other words, only those acts which attain legal
validity inherently within the legal system or through its mechanism
can be said to give rise to a ‘right’.
58. In the case on hand, the respondents or the original defendants have
pleaded for the abatement of the suit due to non-substitution of legal
heirs therein 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. In fact, Rule 10A was
enacted for the purpose to allow for mitigation of the legal effects of
delay and can be used to request for condonation of delay.
59. The question of allowing abatement of suit is one of discretion and
therefore, an advantage. Under Rule 10A of Order XXII, 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. 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.

II. Duty of Pleader.
60. Rule 10A of Order XXII, as inserted by the Amendment Act, 1976
imposes an obligation on the pleader appearing for the party to
intimate death of his client to the court. But there is difference of
opinion as to whether the duty imposed on the pleader is confined
to factum of death of a party or also to furnish names and particulars
of legal representatives.
61. According to one view, there is no obligation on the pleader appearing
on behalf of the deceased party to furnish or supply list of legal
representatives of the deceased.
62. According to the other view, however, the pleader has not only to
inform the court as to death of the party but he must also furnish
particulars of legal representatives.
132 [2025] 8 S.C.R.

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63. However, 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.
64. This Court in Perumon Bhagvathy Devaswom Perinadu Village v.
Bhargavi Amma (Dead) by Lrs. and Others reported in (2008)
8 SCC 321 has explained the principles applicable in considering
applications for setting aside the abatement and as summarised
such principles as under: -
“12. In State of M.P. v. S.S. Akolkar [(1996) 2 SCC 568]
this Court held: (SCC pp. 569-70, paras 6-7)
“6. [...] Under Order 22 Rule 10-A, it is the duty
of the counsel, on coming to know of the death
of a party, to inform it to the court and the court
shall give notice to the other party of the death.
By necessary implication delay for substitution
of legal representatives begins to run from the
date of knowledge. [...]
7. It is settled law that the consideration for
condonation of delay under Section 5 of the
Limitation Act and setting aside of the abatement
under Order 22 are entirely distinct and different.
The court always liberally considers the latter,
though in some case, the court may refuse to
condone the delay under Section 5 in filing the
appeals. After the appeal has been filed and
is pending, the Government is not expected to
keep watch whether the contesting respondent
is alive or has passed away. After the matter
was brought to the notice of the counsel for the
State, steps were taken even thereafter; after
due verification belated application came to be
filed. It is true that Section 5 of the Limitation
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Act would be applicable and delay is required
to be explained. The delay in official business
requires its broach and approach from public
justice perspective.”
(i) The words “sufficient cause for not making the application
within the period of limitation” should be understood and
applied in a reasonable, pragmatic, practical and liberal
manner, depending upon the facts and circumstances
of the case, and the type of case. The words “sufficient
cause” in Section 5 of the Limitation Act should receive a
liberal construction so as to advance substantial justice,
when the delay is not on account of any dilatory tactics,
want of bona fides, deliberate inaction or negligence on
the part of the appellant.
(ii) In considering the reasons for condonation of delay,
the courts are more liberal with reference to applications
for setting aside abatement, than other cases. While the
court will have to keep in view that a valuable right accrues
to the legal representatives of the deceased respondent
when the appeal abates, it will not punish an appellant
with foreclosure of the appeal, for unintended lapses. The
courts tend to set aside abatement and decide the matter
on merits, rather than terminate the appeal on the ground
of abatement.
(iii) The decisive factor in condonation of delay, is not the
length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a
court depends on the nature of application and facts and
circumstances of the case. For example, courts view
delays in making applications in a pending appeal more
leniently than delays in the institution of an appeal. The
courts view applications relating to lawyer’s lapses more
leniently than applications relating to litigant’s lapses. The
classic example is the difference in approach of courts to
applications for condonation of delay in filing an appeal
and applications for condonation of delay in refiling the
appeal after rectification of defects.
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(v) Want of “diligence” or “inaction” can be attributed to
an appellant only when something required to be done by
him, is not done. When nothing is required to be done,
courts do not expect the appellant to be diligent. Where an
appeal is admitted by the High Court and is not expected
to be listed for final hearing for a few years, an appellant
is not expected to visit the court or his lawyer every few
weeks to ascertain the position nor keep checking whether
the contesting respondent is alive. He merely awaits the
call or information from his counsel about the listing of
the appeal.”
(Emphasis supplied)

65. 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.
66. 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 and for this limited purpose to introduce a deeming fiction of
the contract being kept subsisting between the advocate and the
deceased party 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. In order to avoid
procedural justice scoring a march over substantial justice the Rule
10A was introduced by the Code of Civil Procedure (Amendment) Act
of 1976 which came into force on February 1st, 1977. Unfortunately,
the High Court took no notice of the wholesome provision and fell
back on the earlier legal position which automatically stands modified
by the new provision and reached an unsustainable conclusion.
67. It is not the question of Order XXII Rule 10A being directory or
mandatory. The court should know how to apply the provision in the
facts of each case. The line of reasoning adopted by the High Court
if upheld would render Order XXII Rule 10A otiose.
68. Before we close this matter, we would like to observe that it is not
even the case of the defendants that the plaintiffs had knowledge of
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the death of some of the defendants. If such would have been the
position, then probably the applicability of the Order XXII Rule 10A
would have been inconsequential.
69. In the present appeal the plaintiffs as well as the defendants have filed
their written submissions. The defendants in their written submissions
have talked about the merits of the case but very conveniently have
not said a word as to why it was not brought to the notice of First
Appellate court when the First Appeal was taken up for hearing that
the first appeal had in fact stood abated with the death of some of
the defendants. 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.
70. In the aforesaid context we may refer to and rely upon a decision of
this Court in P. Jesaya (dead) by Lrs. v. Sub-collector and Anr.
reported in (2004) 13 SCC 431 wherein the only contention taken up
in appeal before this Court was that one of the respondents in the
appeal before the High Court had died during the pendency of that
appeal. It was contended that his heirs were not brought on record
and therefore the appeal before the High Court had abated. It was
also submitted that as the appeal had abated, the judgment delivered
by the High Court was non-est and could not have been enforced.
In the case at hand the appeal stood abated according to the High
Court before the First Appellate court whereas in P. Jesaya (supra)
it had stood abated before the High Court. This is the only difference.
71. This Court observed that although the arguments were attractive,
yet one must keep in mind Order XXII Rule 10-A of the C.P.C. This
Court observed that it is obligatory on the pleader of the deceased
to inform the court and the other side about the factum of the death
of a party. This Court observed thus: -
“4. Though the arguments are attractive one must also keep
in mind Order 22 Rule 10 of the Code of Civil Procedure.
It is obligatory on the pleader of a deceased to inform
the court and the other side about the factum of death of
a party. In this case we find that no intimation was given
to the court or to the other side that the first respondent
had died. On the contrary a counsel appeared on behalf
of the deceased person and argued the matter. It is clear
that the attempt was to see whether a favourable order
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could be obtained. It is clear that the intention was that
if the order went against them, then thereafter this would
be made a ground for having that order set aside. This
is in effect an attempt to take not just the other side but
also the court for a ride. These sort of tactics must not
be permitted to prevail. We, therefore, see no reason to
interfere. The appeal stands dismissed. There will be no
order as to costs.”
(Emphasis supplied)

72. Had the lawyer of the defendants or the defendants themselves
would have brought to the notice of the First Appellate court that
some of the defendants had died then probably the plaintiffs# could
have taken steps to first get the abatement set aside and bring the
legal heirs on record.

D. CONCLUSION
73. In such circumstances referred to above we are left with no other
option but to partly allow this appeal and set aside the impugned
judgment and order passed by the High Court.
74. We are inclined to remand the matter to the High Court for fresh
hearing of the second appeal keeping in mind the principles of law
as discussed in this judgment.
75. In the result, this appeal succeeds and is hereby partly allowed. The
impugned judgment of the High Court is set aside.
76. The matter is remanded to the High Court. The Second Appeal No.
190 of 2008 is restored to its original file and shall be heard afresh
and decided on its own merits after giving opportunity of hearing to
both the parties.
77. We clarify that so far as the question whether the decree can be
said to be joint and indivisible or otherwise shall be looked into by
the High Court while hearing the Second Appeal afresh. If the High
Court reaches the conclusion that the decree is joint and indivisible
and with the death of some of the defendants, the entire First Appeal
could be said to have abated then it shall remand the matter to the

# Ed. Note: “plaintiffs” instead of “defendants” in terms of subsequent corrigendum.
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First Appellate Court so as to give an opportunity to the plaintiffs to
prefer an appropriate application for setting aside of the abatement
and bring the legal heirs on record and thereafter hear the first appeal
once again on its own merits.
78. In the event the High Court reaches the conclusion that the First
Appeal as a whole could not be said to have stood abated as the
nature of the decree is such that it cannot be said to be joint and
indivisible then the High Court shall hear the Second Appeal on its
own merits on other issues involved in the litigation.
79. Since this litigation is of 1984, we direct the High Court to take up
the 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. High Court shall inform about the disposal
of the second appeal to this Court.
80. The Registry is directed to circulate one copy each of this judgment
to all the High Courts.

Result of the case: Appeal partly allowed.

†
Headnotes prepared by: Nidhi Jain