Summary
The High Court allowed the defendants' second appeal solely because some defendants had died during the first appeal without their heirs being substituted, holding the first appeal abated under Order XXII Rule 4 CPC and that Rule 10A could not override it. The Supreme Court held that where the defendants' pleader never informed the court of the deaths as Order XXII Rule 10A requires, the defendants cannot take advantage of their own lapse to plead abatement; the maxim nullus commodum capere potest de injuria sua propria governs Rule 10A, and the question is not whether the Rule is mandatory but how it is applied on the facts. The matter was remanded for fresh hearing of the second appeal.
Issues
- Whether the High Court erred in holding that the first appeal had abated for non-substitution of the heirs of deceased defendants when the defendants' pleader had not informed the court of the deaths as required by Order XXII Rule 10A CPC.
- Whether Order XXII Rule 4 CPC on abatement overrides Order XXII Rule 10A, and what is the nature and effect of Rule 10A.
- Which legal maxim underlies Order XXII Rule 10A: ex injuria ius non oritur or nullus commodum capere potest de injuria sua propria.
- Whether a pleader's duty under Order XXII Rule 10A is discharged merely by informing the court of the death, without furnishing particulars of the legal representatives.
Provisions considered
- Order XXII Rule 10A, Code of Civil Procedure, 1908Inserted by the 1976 Amendment, the rule casts a duty on the pleader who learns of his client's death to inform the court, which must notify the other side, the pleader's contract being deemed to subsist for that purpose. It is procedural and carries no penalty, but a party whose pleader fails to comply cannot plead abatement unless it is shown that the opposite party had knowledge of the death; mere intimation of death without particulars of the legal representatives is insufficient compliance. (¶¶ 29, 30, 36, 39, 40, 42, 43, 44, 50, 51, 59, 63, 65, 66, 67)
- Order XXII Rule 4, Code of Civil Procedure, 1908On the death of a defendant where the right to sue does not survive against the survivors alone, the legal representative must be brought on record on application within the time limited by law, failing which the suit abates against the deceased under sub-rule (3) and the plaintiff must seek setting aside of the abatement; the High Court wrongly treated this as overriding Rule 10A. (¶¶ 27, 28, 58, 65)
- Order XXII Rules 1 and 2, Code of Civil Procedure, 1908Death of a party does not cause abatement if the right to sue survives; where it survives to or against the remaining parties alone the suit proceeds with an entry on the record. (¶¶ 25, 26, 28)
- Order III Rule 4, Code of Civil Procedure, 1908A pleader's appointment ordinarily ends on the client's death; Rule 10A of Order XXII carves out an exception by deeming the contract to subsist for the limited purpose of informing the court of the death. (¶¶ 37, 38, 39)
- Section 5, Limitation Act, 1963A pleader's failure to inform the court of his client's death is a good and sufficient ground for condoning delay in applying for substitution; courts are more liberal in setting aside abatement than in other delay applications, and delay begins to run from the date of knowledge. (¶¶ 44, 58, 64)
Held
- Order XXII Rule 10A, inserted in 1976 to prevent procedural justice scoring a march over substantial justice, obliges the advocate of a party to inform the court of the party's death so that the other side can bring the legal representatives on record; a litigant cannot be expected to watch day to day whether the opponent is alive. The rule is salutary, not an empty formality. (¶¶ 29, 32, 40, 41, 42, 66)
- Unless the obligation under Rule 10A is discharged, or it is established by cogent evidence that the opposite party had sufficient opportunity to know and in fact knew of the death, a plea of abatement at the instance of the party who failed to comply cannot be entertained; nobody can reap the benefit of his own lapse to non-suit the plaintiff. (¶¶ 29, 51, 59, 68)
- Rule 10A is a manifestation of the maxim nullus commodum capere potest de injuria sua propria (no one may take advantage of his own wrong) and not of ex injuria ius non oritur. The former concerns an advantage or benefit a wrongdoer derives, the latter a right accruing from a wrongful act. Abatement is not a right accruing to the opposite party but a matter of the court's discretion and hence an advantage, which a party in breach of the Rule 10A duty of candour must not be allowed to avail. (¶¶ 45, 48, 49, 50, 54, 55, 56, 57, 58, 59)
- Though Rule 10A is procedural and prescribes no penalty, a court of conscience must take cognisance of the pleader's failure when deciding whether a suit or appeal has abated under Order XXII Rule 4(3); to ignore such lapses would render Rule 10A otiose. The High Court's view that Rule 4 overrides Rule 10A because the latter is not mandatory is incorrect; the question is not whether Rule 10A is directory or mandatory but how it is to be applied on the facts of each case. (¶¶ 43, 50, 65, 66, 67)
- Merely informing the court of the fact of death is not sufficient compliance with Rule 10A; the counsel must also furnish particulars of the persons on whom and against whom the right to sue survives, otherwise the object of the rule remains incomplete. (¶¶ 60, 63)
- Where the defendants and their lawyer, aware of the deaths, kept silent, allowed the first appeal to be argued on merits and raised abatement only after losing, the conduct smacks of lack of good faith and is an attempt to take the other side and the court for a ride, which must not be permitted to prevail. (¶¶ 24, 69, 70, 71, 72)
Result
Appeal partly allowed; High Court judgment dated 22.10.2014 set aside; Second Appeal No. 190 of 2008 restored and remanded for fresh hearing on merits within three months, the High Court to decide whether the decree is joint and indivisible and, if it finds the first appeal wholly abated, to remand to the First Appellate Court to let the plaintiffs apply to set aside the abatement and bring heirs on record; Registry to circulate the judgment to all High Courts.