Gujarat High Court
Lr Of Deceased Jamilbibi D/O Abdul Rahim ... vs Abdul Ahmad (Rashidkhan) Rehmankhan ... on 19 August, 2025
NEUTRAL CITATION
C/SCA/463/2016 JUDGMENT DATED: 19/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 463 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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LR OF DECEASED JAMILBIBI D/O ABDUL RAHIM GULAM RASUL HAIKH
& ORS.
Versus
ABDUL AHMAD (RASHIDKHAN) REHMANKHAN PATHAN & ORS.
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Appearance:
DS AFF.NOT FILED (R) for the Petitioner(s) No. 2.3,2.4
MR MUKESH A PATEL(636) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5,2
RULE SERVED BY DS for the Petitioner(s) No. 2.1,2.2,2.5,2.6
RULE UNSERVED for the Petitioner(s) No. 2.7
DS AFF.NOT FILED (N) for the Respondent(s) No.
2.1,2.2,2.3,4,8.1,8.2,8.3,8.4
MR MRUGEN K PUROHIT(1224) for the Respondent(s) No. 1,5,6,7
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 19/08/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Advocate Mr. Kuldeep Acharya for learned advocate Mr. Mrugen K Purohit waives service of notice of Rule for respondent Nos. 1, 5, 6 and 7.
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NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined
2. At the outset, learned Advocate Mr. Mukesh A. Patel appearing for the petitioners states that an affidavit of service of notice upon the legal heirs of respondent No.2 i.e. defendant Nos.2.1 to 2.7 and other respondents was already filed on 19th February, 2016 and 31st August, 2024, respectively. Learned Advocate Mr. Patel states that such affidavits were filed in the Registry of this Court and made available in the file of this matter. Further, learned Advocate Mr. Patel informed this Court that pending the present writ application, the suit in question now transferred to the Principal Senior Civil Judge, Olpad, Surat and it has been given a new number i.e. Special Civil Suit No.29 of 2018.
3. Heard learned Advocate Mr. Mukesh A. Patel for the petitioners and learned Advocate Mr. Kuldeep Acharya for learned Advocate Mr. Mrugen K Purohit for respondent Nos. 1, 5, 6 and 7. Though served, none appears for the respondent No.3.
4. The present writ application is filed under Article 227 of the Constitution of India seeking following reliefs, "A) This Hon'ble Court may kindly be pleased to allow this petition and be pleased to quash and set aside the order dt.6.11.2015 passed by the Ld. 2 Adl. Senior Civil Judge, Surat, below exh. 33 and 45 Page 2 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined applications of the petitioners in SCS No. 506 of 2010 and be pleased to join the parties a prayed for, granting relief as prayed in Exh. 45 and 33 application, in the interest of justice. (B) Pending admission and final disposal of the present petition this Hon'ble Court may kindly be pleased to stay the further proceedings of SCS No.506 of 2010 pending before the Hon'ble Court of Ld. 21st Adl. Senior Civil Judge, Surat and the order dt.6.11.2015 passed by the Ld. 21st Adl. Senior Civil Judge, Surat, below exh. 33 and 45 applications, therein.
(C)Any other relief as may be deemed just and proper may kindly be granted in the interest of Justice."
5. As far as possible, the parties will be referred to as per their original positions before the Trial Court.
6. THE SHORT FACTS OF THE CASE APPEAR TO BE THAT:
7. The petitioners herein are the original plaintiffs of Special Civil Suit No. 506 of 2010, filed against the respondents, pending before the Senior Civil Judge, Surat. It appears that during the pendency of the suit, the original defendant No.2 died on 10th June, 2012 at Malaysia, which was declared by the Advocate of original Defendant Nos. 1, 3 and 7 vide his pursis dated 07.07.2012 (Exhibit 32). It further appears that the same was received by Advocate of plaintiff on 5.1.2013, thereafter intimated to the petitioners.
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NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined 7.1. On getting the information about the legal heirs of the deceased defendant No.2, an application below Exhibit 33 appears to have been filed under Order 22 of the CPC on 29.6.2013. Further, vide affidavit below Exhibit 42, further details were provided and so also, stated the reason of delay in filing such application. It further appears that an application below Exhibit 45, came to be filed under Order 6, Rule 17 of the CPC to amend the application filed below Exhibit 33, whereby the cause of delay, pedigree of original defendant No.2 and so also a prayer for seeking condonation of delay and setting aside the abatement to be incorporated in the application filed below Exhibit 33 was sought for.
7.2. After hearing the parties, the Trial Court, vide its impugned order dated 6.11.2015, rejected both these applications filed below Exhibit 33 and Exhibit 45. Hence, the present application.
SUBMISSIONS OF THE PETITIONERS:
8. Learned Advocate Mr. Patel would submit that the Trial Court has taken a hyper-technical approach while adjudicating the impugned application, which has resulted into miscarriage of justice.
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NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined 8.1. Learned Advocate Mr. Patel would further submit that as soon as the petitioners came to know about the factum of death of defendant No.2 on 5th January 2013 from their advocate, as the death of defendant No.2 took place at Malaysia, it took a long time to get the details of his legal heirs, which caused the delay in filing the application. 8.2. Learned Advocate Mr. Patel would submit that when such types of applications are to be adjudicated upon by the Trial Court, a pragmatic approach is required to be taken, thereby it can advance justice to the parties and try to avoid any hyper-technical approach which forecloses the right of party to pursue the lis pending between them. 8.3. Learned Advocate Mr. Patel would further submit that as per the settled legal position of law, in a case of death of any party, when an application to bring on record his legal heirs is filed, ordinarily it should be allowed by the Trial Court unless it causes serious prejudice to the other side, which is absent in the present case.
8.4. Lastly, learned Advocate Mr. Patel would submit that there is no mala fide intention on the part of the petitioners not to file application after the period of limitation, but due to the facts which are narrated in the application, it caused Page 5 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined delay in filing such an application.
8.5. Making the above submissions, he would request this Court to allow the present application. SUBMISSIONS OF THE RESPONDENTS:
9. Per contra, Learned Advocate Mr. Acharya would submit that there is no error, much less any gross error of law, committed by the Trial Court while rejecting the impugned application.
9.1. Learned Advocate Mr. Acharya would submit that the petitioners have not filed any application to bring on record the legal heirs of the deceased defendant No.2 in time and in the absence of any prayer made for seeking condonation of delay and setting aside abatement, the impugned application filed below Exhibit 33 itself is not maintainable. 9.2. Learned Advocate Mr. Acharya would further submit that there is no sufficient cause made out by the petitioners to file the impugned application after the period of limitation, inasmuch as having come to know about the death of defendant No.2 on 5th January 2013, the petitioners took almost five more months to file such application. 9.3. Learned Advocate Mr. Acharya would respectfully submit Page 6 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined that as such, there is no error committed by the Trial Court, inasmuch as it has decided the application on its merits in accordance with law.
9.4. Learned Advocate Mr. Acharya would further submit that the limitation period would commence from the date of death of the party and not from the date of knowledge. It is submitted that delay in bringing legal heirs of deceased party requires to be considered from date of death and not from a date of knowledge. So, considering gross delay in filing such application and no sufficient cause made out, this Court should not exercise its supervisory jurisdiction under Article 227 of the Constitution of India. 9.5. Making the above submissions, learned Advocate Mr. Acharya would request this Court to reject the application. ANALYSIS
10. The facts which are narrated hereinabove are not in dispute. The defendant No.2 reportedly died on 10th June 2012, but for the first time, this was declared before the Trial Court on 7th July 2012, when the advocate of defendant Nos. 1, 3 to 7 submitted a pursis. It appears that such pursis was not served in advance to the learned advocate for the plaintiff but appears to have been Page 7 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined received only on 3rd January 2013. When it came to the knowledge of the learned advocate for the petitioners- plaintiffs about the factum of death of defendant No.2, the petitioners have been intimated about such death. It is clearly stated by the petitioners in the impugned application that they have received such intimation on 5th January 2013.
11. It is also not in dispute that defendant No.2 died at Malaysia. Naturally, it would take little longer time to get the details of legal heirs of the deceased defendant No.2, inasmuch as such details were undisputedly not provided by the advocate of defendant No.2 when he submitted the aforesaid pursis.
12. As per Order 22, Rule 10A of the CPC, it is the duty of the pleader of party to intimate such fact of death of his client to opposite party by way of notice and so also to inform the Court. It appears that such notice was undisputedly not given to the plaintiff, but the fact remains that the plaintiff, through their lawyer, came to know about such death on 3rd January 2013.
13. In light of the aforesaid undisputed fact, if I analyze the issue, it would be appropriate to observe that there are no Page 8 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined malafide intentions, dilatory tactics and/or gross negligence on the part of the petitioners not to file the impugned application below Exhibit 33 within the stipulated time, inasmuch as some time must have been consumed to get information about the legal heirs of the deceased defendant No.2, who died at Malaysia.
14. It is true that initially when the impugned application came to be filed below Exhibit 33, it did not have a prayer for condonation of delay and setting aside the abatement. But, realizing such defect in the application, another application below Exhibit 45 came to be filed under Order 6, Rule 17 of the CPC and so also an affidavit below Exhibit 42, whereby the petitioners have requested the Trial Court to allow them to amend the impugned application filed below Exhibit 33. If such application filed below Exhibit 45 could have been allowed by the Trial Court, the defect remained while filing the application under Order 22, Rule 4 of the CPC could have been cured, which, according to this Court, ought to have been allowed to be cured by the Trial Court. [See- State of M.P. and another V/s. Pradeep Kumar and another reported in (2000) 7 SCC 372]
15. Time and again, the Hon'ble Apex Court has already Page 9 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined clarified the position of law vis-à-vis the provisions of Order 22 of C.P.C. that it is not penal in nature. It is also well-settled legal position of law that rule of procedure is handmaid of justice and hyper-technical approach is required to be avoided.
16. At this stage, it would be apt to refer to rely upon the decision of the Hon'ble Supreme Court in the case of Sugandhi (Dead) By Lrs & Anr V/S P Rajkumar Rep By His Power Agent Imam Oli Reported In (2020) 10 Scc 706 , reads as under:
"[9] It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3)."
(emphasis supplied)
17. It would be apt to refer to and rely upon the decision of Hon'ble Supreme Court of India in the case of Prakash Page 10 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined Gupta Alias Lalloowa (deceased) vs Satish Chandra (Now Deceased) reported in 2025 SCC Online SC 291 : (2025) INSC 183; wherein held thus:-
"23. We find it difficult to agree with such reasoning. When an application praying for substitution had been made, then, even assuming that it does not have an explicit prayer for setting aside the abatement, such prayer could be read as inherent in the prayer for substitution in the interest of justice. We draw inspiration for such a conclusion, having read the decision in Mithailal Dalsangar Singh v. Annabai Devram Kini, 2003 10 SCC 691. This Court reiterated the need for a justice-oriented approach in such matters. Inter alia, it was held that prayer to bring on record heir(s)/legal representative(s) can also be construed as a prayer for setting aside the abatement. The relevant passage reads as under:
"8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called Page 11 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.
9. The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of 'sufficient cause' within the meaning of sub- rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.
10. In the present case, such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done............."
(emphasis supplied) Page 12 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined
18. It is also apposite to refer and rely upon the decision of the Hon'ble Supreme Court in the case of a decision in case of Banwarilal vs. Balbir Singh reported in (2016) 1 SCC 607 , wherein, it has been held thus:-
"8. Since no steps were taken to bring on record the legal representatives of late Banwari Lal either in the first appeal or in the second appeal, the appellants have filed CM No. 1998 of 2012 (under Order 1 Rule 10 CPC read with Section 151 CPC) to implead (i) Shakuntala; (ii) Gaurav; (iii) Rachna; and (iv) Manju. Civil Procedure Code Order 22 stipulates the manner in which the legal representatives of the plaintiffs or the defendants ought to be brought on record. The prescribed procedure cannot be circumvented by filing application under Order 1 Rule 10 CPC read with Section 151 CPC. However, in our view, it would be unjust to non-suit the appellants on the ground of technicalities.
9. Provisions of Order 22 CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra v. Pramod Gupta [(2003) 3 SCC 272] , a five-Judge Bench of this Court held as under : (SCC pp. 300-01, para 26) "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading Page 13 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court [Amarjit Singh v. Pramod Gupta, 1991 SCC OnLine Del 131 : (1991) 20 DRJ 337] should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and Page 14 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice."
(emphasis supplied)
10. In Sital Prasad Saxena v. Union of India [(1985) 1 SCC 163] , it was observed that the rules of procedure under Order 22 CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order [Banwari Lal v. Balbir Singh, 2013 SCC OnLine Del 6406] cannot be sustained."
(emphasis supplied)
19. At this stage, it would also be apposite to refer and rely upon pertinent observations made by the Hon'ble Supreme Court of India in the case of Bhagvathy Devaswom v. Bhargavi Amma [(2008) 8 SCC 321], which is also referred to in the case of Om Prakash Gupta (Supra), read thus:-
"13. The principles applicable in considering applications for setting aside abatement may thus be summarised as follows:
(i) The words 'sufficient cause for not making the application within the period of limitation' should be understood and applied Page 15 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined 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.
(v.) Want of 'diligence' or 'inaction' can be attributed to an appellant only when something required to be done by him, is not Page 16 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined 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 in original) (emphasis supplied)
20. Recently, the Hon'ble Supreme Court of India in the case of Binod Pathak and Others V/s. Shankar Choudhary and Others reported in 2025 SCC OnLine SC 1411 in Civil Appeal No. 7706 of 2025, wherein, it has been held thus:
"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.
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.
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 Page 17 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined 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. Preeminent object of the rule is to do full and complete justice.
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 abatement of the suit or appeal. The benevolent object underlying Order XXII Rule 10A to ensure Page 18 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined 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.
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.
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 Page 19 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined 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 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.Page 20 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025
NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined
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 1 st, 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."
In view of the decision in the case of Binod Pathak (supra), when there is a default on the part of the pleader of defendant in not issuing notice as regards the death of deceased defendant No.2 to the plaintiffs, they cannot not be found at fault for the delay occurred in filing such application.
21. In light of the aforesaid facts and circumstances of the case and the position of law as it stands on date, according Page 21 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined to my view, the Trial Court has committed gross error of law and so also jurisdictional error by rejecting the impugned application filed below Exhibit 33 along with Exhibit 45. According to my view, the legal heirs of the deceased defendant No.2 are required to be brought on record, as the cause survives against them and having found sufficient cause in not filing such application, delay in filing such application and so also abatement of suit qua defendant No.2 requires to be condoned and set aside respectively.
22. In view of foregoing reasons, this Court is of the view that it is a fit case to exercise its supervisory jurisdiction so vested in it under Article 227 of the Constitution of India thereby, it can correct jurisdictional error committed by Trial Court having not exercised its jurisdiction so vested in it. [See - Waryam Singh vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)] CONCLUSION
23. In view of the aforesaid discussions and reasons, its held that Trial Court committed jurisdictional error and the Page 22 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined impugned order dated 06.11.2015 passed by 2nd Additional Senior Civil Judge, Surat below Ex. 33 & 45 in Special Civil Suit No. 506 of 2010, suffers from gross irregularity and illegality, was passed contrary to the provisions of law and its passed against the settled legal position of law, thus requires to be quashed and set aside, which is hereby set aside.
24. Consequently, the impugned applications filed below Exhibit 33 and 45 are hereby allowed.
25. Accordingly, the delay in filing the application to bring on record the legal heirs of the deceased Defendant No.2 is hereby condoned and so also the abatement of the suit qua Defendant No.2 is also quashed and set aside. The amended plaint be filed by the plaintiff, by substituting and bring the legal heirs of the deceased Defendant No.2 on record of the suit (New Special Civil Suit No. 29 of 2018, Olpad, Surat - Old Special Civil Suit No. 506 of 2010, Surat), within a period of 15 days from today. Thereafter, a fresh notice shall be issued to them by the Trial Court in accordance with the law.
26. Thus, in view of the aforesaid, the present application deserves to be allowed which is hereby allowed. Rule is Page 23 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025 NEUTRAL CITATION C/SCA/463/2016 JUDGMENT DATED: 19/08/2025 undefined made absolute. No order as to costs. Interim relief granted earlier stands vacated forthwith.
27. The Trial Court is hereby directed to allow the plaintiff to submit necessary application which will have to be filed by the plaintiffs to bring on record the legal heirs of other deceased plaintiff and or defendant as the case may be who died during the pendency of the present writ application. Such application be decided in accordance with law.
(MAULIK J.SHELAT,J) Nilesh Page 24 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:00:49 IST 2025