Binod Pathak & Ors. vs Shankar Choudhary & Ors.

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 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: 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]