Lawyer Has Duty To Inform About Party's Death; Plea Of Suit Abatement Can't Be Accepted If Defendant's Lawyer Suppressed Death : Supreme Court

The Supreme Court held that defendants cannot seek abatement of a suit on account of the death of some co-defendants when their counsel has knowingly suppressed the fact of their death.

The Court held that such non-disclosure, despite the lawyer's obligation under Order XXII Rule 10A of the Civil Procedure Code cannot later be used to claim the benefit of abatement.

“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.”, the court observed.

"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.", the court added.

The bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan heard the case where the Respondents' lawyer, despite being aware of his client's death, didn't inform the court when the matter was pending before the First Appellate Court, and instead argued the case on merit. Later on, when the Second Appeal was filed by the Appellant challenging the First Appellate Court's decision, the Respondents' lawyer claimed abatement of suit due to his client's death and non-substitution of legal representatives.

The High Court had dismissed the Appellant/plaintiff's Second Appeal, holding that the appeal had abated due to the death of some defendants during the pendency of the First Appeal and the failure to substitute their legal representatives.

Aggrieved by the High Court's decision of abatement of suit, the Appellant approached the Supreme Court

Setting aside the High Court's decision, the judgment authored by Justice Pardiwala observed that the failure of the defendant's lawyer to inform about his client's death and bring on record the legal heirs of the deceased constitutes a wrongful act that cannot benefit them, rendering the Appellant's suit abated.

The Court stated that the defendants' failure to disclose the deaths (despite their lawyers' duty under Rule 10A) suggests a strategic attempt to exploit abatement later.

"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.", the court said.

“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.”, the court observed.

The Court referred to a legal maxim nullus commodum capere potest de injuria sua propria (no one can benefit from their own wrong). By suppressing the deaths, the defendants sought to unjustly benefit from the abatement, the court said.

“Thus, the principle that no party can take advantage of his/her own wrong i.e. 'nullus commodum capere potest de injuria sua propria' is squarely attracted in the event of a failure in complying with the provision of Rule 10A of Order XXII of the CPC, and any abatement as a result of such wrongdoing or failure ought not to be validated by the courts.”, the court observed.

“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.”, the court added.

Deceased Pleader's Obligation To Also Furnish Particulars Of Legal Representatives

The Court clarified that mere providing of an information about the fact of death in not sufficient, unless a particular of Legal Representatives of the deceased is also supplied forinquiry about upon whom and against whom the right sue survives.

“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.”, the court observed.

In view of the aforesaid, the Court partly allowed the appeal, remanding 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.

The Court also directed the registry to circulate one copy each of this judgment to all the High Courts.

Cause Title: BINOD PATHAK & ORS. VERSUS SHANKAR CHOUDHARY & ORS.

Citation : 2025 LiveLaw (SC) 699

Click here to read/download the judgment

Appearance:

For Petitioner(s) Mr. Gagan Gupta, Sr. Adv. Mr. Jayesh Gaurav, Adv. Mr. Ishwar Chandra Roy, Adv. Mr. Farrukh Rasheed, AOR

For Respondent(s) Mr. Shantanu Sagar, AOR Mr. Anil Kumar, Adv. Mr. Gunjesh Ranjan, Adv. Ms. Tara Chauhan, Adv. Mr. Manoneet Dwivedi, Adv. Mr. Gopal Jha, AOR Mr. Prem Prakash, AOR