BINOD PATHAK & ORS. versus SHANKAR CHOUDHARY & ORS.

Citation: [2025] 8 S.C.R. 103 · Decided: 14-07-2025 · Supreme Court of India · Bench: J.B. PARDIWALA · Disposal: Case Partly allowed

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Judgment (excerpt)

[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.
Supreme Court Reports
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 d

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