2025:HHC:24992 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Review Petition No. 142 of 2024 Reserved on : 30 th April, 2025 Decided on : 28 th July, 2025 Darshan Singh …Petitioner Versus Sadh Ram (since deceased) Through LRs …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Devyani Sharma, Senior Advocate with Mr. Anirudh Sharma, Advocate. For the respondents : Mr. Mukesh Sharma, Mr. Dinesh Sharma & Mr. Narinder Singh, Advocates. Virender Singh, Judge (oral) Petitioner has filed the present petition, under Section 114 read with Order 47, Rule 1 of the Code of Civil Procedure, with the following prayer: “It is therefore, respectfully prayed that present petition may kindly be allowed the judgment and decree dated 12.1.2024 passed by this Hon’ble Court in Civil Suit No.4 of 2008 titled Darshan Singh v. Sadh Ram may kindly be recalled/ 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 2025:HHC:24992 reviewed in the interest of justice and after allowing substitution of legal heirs of the deceased defendant after condoning the delay in bringing them on record and setting aside abatement, the suit may kindly be decreed against them.” 2. Facts, in brief, necessary for the adjudication of the present petition, as borne out from the record, are as under: 2.1. Plaintiff Darshan Singh, has filed the suit for specific performance against defendant Sadh Ram (since deceased) before this Court. The said suit was decreed by this Court vide judgment dated 12.1.2024. 2.2. As per the application, after completion of the pleadings, issues were framed by this Court and the parties were directed to adduce evidence. After completion of the evidence, the matter was finally heard and vide judgment and decree dated 12.1.2024, the suit filed by the petitionerplaintiff has been decreed by granting the following relief: “88. In view of the findings on all the issues above, the suit of the plaintiff is decreed with cost. The defendant is directed to perform, his part of the agreement Ex.PW1/A, by executing and registering the sale deed, at the expenses of the plaintiff, qua the suit land in favour of the plaintiff, within a period of three months from today, on 3 2025:HHC:24992 receipt of the balance sale consideration of Rs.77,00,000/ (seventy seven lacs only).” 2.3. It is the further case of the petitioner that when the defendant failed to execute the sale deed, within a period of three months, then on 23.04.2024, the plaintiff deputed his associate Bala Ram to meet the defendant and fix a date for execution/registration of sale deed, in terms of judgment and decree passed by this Court. When said Bala Ram visited the residence of the defendant, he was informed by the son of the defendant that the defendant had expired. 2.4. It is the further case of the petitioner that thereafter, the petitioner had consulted his lawyer, who advised him to obtain death certificate and legal heirs certificate of the deceased defendant. Those documents were prepared on 29.04.2024. Thereafter, the latest Jamabandi was obtained on 01.05.2024. 2.5. According to the petitioner, on receipt of the documents, it has been transpired that defendant Sadh Ram expired on 20.08.2021, leaving behind his son Ram Dayal and daughter Dyalo, who had been impleaded as 4 2025:HHC:24992 respondents No.1(a) and 1(b), in the application. As per the revenue record, mutation of inheritance on the death of defendant Sadh Ram was also entered and sanctioned in favour of respondent No.1(a) only. 2.6. Petitioner further asserted that he was not aware about the factum of death of defendant Sadh Ram nor the said factum of death was brought on record by the counsel representing defendant Sadh Ram. 2.7. Since, the judgment and decree has been passed against a dead person, as such, petitioner, as per his stand, found no other way, except for review/recall of the judgment and decree by allowing the application for substitution of legal heirs of defendant Sadh Ram, after condoning the delay and setting aside the abatement, if any. 2.8. Asserting the noncompliance of Order 22 Rule 10A CPC, it is the case of the petitioner that counsel representing defendant Sadh Ram never moved the application for bringing this fact on record. 2.9. Lastly, it is the case of the petitioner that he was having no knowledge with regard to the death of 5 2025:HHC:24992 defendant, as, he was being represented through counsel, till arguments, who has also not disclosed the factum of death. 3. On the basis of the above facts, a prayer has been made to allow the petition by recalling/reviewing the judgment and decree passed in his favour, by allowing the substitution of legal representatives of defendant Sadh Ram and setting aside the abatement, if any. 4. When put to notice, the petition has been contested by respondent No.1 (a) Ram Dayal, by taking preliminary objections, with regard to the fact that the review petition is not maintainable as the petitioner has failed to demonstrate any error apparent on the face of record or any new and important evidence that was not within his knowledge, despite due diligence. As per the objections taken by respondent No.1(a), the present petition is nothing, but an attempt to seek rehearing of the matter, which, according to him, is impermissible in law. 5. Another preliminary objection taken by respondent No.1(a), is that a review petition can only be entertained, if there exists, an error apparent on the face of 6 2025:HHC:24992 the record, which is of a glaring mistake. Elaborating his stand, it has been pleaded on behalf of respondent No.1(a) that petitioner has deliberately suppressed material facts, contrary to his claim that he was unaware about the demise of the defendant, whereas, the petitioner himself attended the last rites of defendant Sadh Ram, which had taken place on 02.09.2021. 6. All these facts have been pleaded to show that the petitioner was having the knowledge about the death of defendant Sadh Ram and as such, the judgment and decree obtained by him is based on concealment of material fact, with regard to the death of defendant Sadh Ram. 7. The prayer has further been opposed on the ground that despite being fully aware about the death of the sole defendant, the petitioner has failed to inform the Court, at any stage of proceedings, instead obtained the judgment and decree dated 12.01.2024, by suppressing these material facts. 8. The suit is also stated to be abated, under Order 22 Rules 3 and 4 of the CPC, after the death of sole 7 2025:HHC:24992 defendant on 20.08.2021, as no application for substitution of his legal heirs was filed, within a period of 90 days. 9. Reiterating the fact that the plea for setting aside the abatement and condonation of delay is an afterthought and cannot be entertained in the absence of a valid and sufficient cause, the petition is stated to have been filed with mala fide intent and abuse of process of law. 10. The plea of estoppal has also been taken by respondent No.1(a) by pleading that the petitioner is estopped from asserting the fact that he was not aware about the defendant’s death, as this contradicts his own admitted conduct. 11. According to respondent No.1(a), the petitioner cannot be permitted to take advantage of his own wrong to seek review of a judgment, obtained through concealment of material facts. The conditions, as enumerated under Order 47 Rules 1 and 2 of the CPC, are stated to be not fulfilled, in the present case, as the petitioner himself concealed the material facts. 8 2025:HHC:24992 12. Another preliminary objection has also been taken, in the present case, that the present petition is a malicious attempt to reopen the concluded proceedings, which have been culminated, against a dead person. 13. As per the stand taken by respondent No.1(a), the petitioner does not fall within the definition of ‘person aggrieved’, as, he was the beneficiary of a decree obtained through concealment. 14. The prayer, as made, in the petition has also been opposed on the ground that after passing of the judgment and decree, dated 12.01.2024, this Court has become functus officio and has no power to reopen or modify the decree and ceases to have jurisdiction over the same. 15. According to the further stand of respondent No.1(a), the power to review the judgment and decree cannot be used to rectify the petitioner’s fraud or negligence, as, the suit is stated to have automatically been abated after the defendant’s death, and thereafter, this Court has no jurisdiction to revive the abated suit. 9 2025:HHC:24992 16. Relying upon the provisions of Order 22 Rule 10A of the CPC, it has been contended that there is no legal obligation, under this provision, requiring the legal heirs of the deceased or their Advocate to disclose the factum of death to the Court. 17. It is the further stand of respondent No.1(a) that he was unaware about the legal proceedings, which were, initiated against his father Sadh Ram and he only came to know about this fact during the second half of March 2024, when he received letter dated 14.3.2024, from the counsel of his father Shri Bhupender Gupta, Senior Advocate. Copy of letter dated 14.3.2024 has been annexed as Annexure R1. 18. Heavily relying upon the maxim ‘Nullus Commondum Capere Potest De Injuria Sua Propria’, ‘Actus Curiae Neminem Gravabit’ ‘Fraus Et Jus Nunquam Cohabitant’ ‘Vigilantibus Non Dormientibus Jura Subveniunt’ and Suppressio Veri, Suggestio Falsi, respondent No.1 has denied the factual position by reasserting that the petitioner was present in the Bhog Kriya of deceased Sadh Ram, which took place on 10 2025:HHC:24992 2.9.2021, at village Thanthowal, Post Office Rajpura, Pargana and Tehsil Nalagarh, District Solan, H.P. 19. On the basis of the above facts, a prayer has been made to dismiss the petition. 20. The petitioner filed rejoinder, denying the preliminary objections, on the stand, as taken in the petition. The factual position, with regard to the alleged attendance of the plaintiff in the Bhog Kirya has also been disputed. 21. In this case, it is admitted factual position that the suit was filed way back by plaintiff (petitioner Darshan Singh), on 29.02.2007. After securing the presence of the defendant and after completion of the pleadings, this Court had framed the issues on 11.09.2008. Thereafter, the suit was decreed, by this Court, vide judgment and decree, dated 12.01.2024. 22. Till 08.11.2023, when the arguments were heard and judgment was reserved, defendant Sadh Ram was represented by his counsel, throughout the proceedings. Defendant Sadh Ram had expired on 20.08.2021. As per the order dated 15.10.2019, the matter 11 2025:HHC:24992 was referred to mediation and on 29.9.2021, further six weeks’ time was granted to the learned Mediator to conclude the mediation proceedings. 23. This order has been passed in the presence of the learned counsel for the plaintiff, as well as, learned counsel appearing for the defendant and on 17.11.2021, when the matter could not be settled in the mediation, then, the same was listed before the Court, for hearing, on 30.12.2021. 24. Thereafter, the matter remained on board for about one year, on various dates and ultimately, arguments were heard and judgment was reserved on 08.11.2023. The person, who had expired on 20.08.2021, was continuously being represented by his counsel till the arguments were heard by this Court and judgment was pronounced. 25. The suit of the plaintiff was decreed by this Court. The arguments of the learned counsel appearing for the respondents qua the fact that the plaintiff was aware about the factum of death, as, he had allegedly attended the Bhog ceremony of defendantSadh Ram do not hold 12 2025:HHC:24992 water as the plaintiff will not achieve anything by not bringing the legal representatives of defendantSadh Ram, on record had, in fact, the factum of death been in his knowledge. 26. Moreover, the legislature in its wisdom has enacted Order 22 Rule 10A of the CPC, by way of amendment in the year 1976. 27. The provisions of Order 22 Rule 10A of the CPC are reproduced, as under: xxx xxx xxx 10A. Duty of pleader to communicate to Court death of a party.—Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist. 28. Admittedly, the factum of death, as per the provisions of Order 22 Rule 10A of the CPC, has not been brought on record, by the counsel representing defendant Sadh Ram. 13 2025:HHC:24992 29. The respondents, in this case, while filing reply to the petition have taken, as many as, 19 preliminary objections, but, there is no whisper in the bulky pleadings that the duty, which has been casted upon the learned counsel for the defendant, has been performed, by informing this Court, about the factum of death of the defendant. 30. Hon’ble Supreme Court in Civil Appeal No.7706 of 2025, titled as Binod Pathak & Others versus Shankar Choudhary & Others, 2025 INSC 842, has elaborately discussed the provisions of Order 22 Rule 10A of the CPC and held that the failure of the lawyer for the party to inform about the death of his client, is to be treated as good and sufficient amount for condonation of delay. Relevant paragraphs 29 to 53, 60, 63, 64 and 66 of the judgment, are reproduced, as under: “29. With enforcement of 1976's amendment to the CPC, once a party to the suit dies, a duty is cast upon the lawyer representing such party, to communicate the fact of death to the opposite party in terms of provisions contain in Rule 10A of Order XXII of the CPC. It is nobody's case that there was compliance of this rule in the case at hand by the advocate appearing for the defendants. Unless this primary obligation is discharged and it is established with cogent 14 2025:HHC:24992 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 nonsuit the plaintiff. 30. Order XXII, Rule 10A reads thus: “10A. Duty of pleader to communicate to Court death of a party.— Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.” 31. Rule 10A has been newly inserted by the Code of Civil Procedure (Amendment) Act, 1976. 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. 33. The Law Commission stated thus: “A new rule is proposed to be inserted to the effect that where a pleader comes to know of the death of a party to the suit, he shall inform the court, and the court, in its turn, shall give notice to the plaintiff of the death. 15 2025:HHC:24992 Such a provision will, to some extent reduce the complications that arise by reason of the plaintiff’s ignorance of the death of a defendant.” 34. In the Statement of Objects and Reasons for the Code of Civil Procedure (Amendment) Bill, 1976, it was observed: “Clause 76—Subclause (v).—New Rule 10A is being inserted to impose an obligation on the pleaders of the parties to communicate to the Court the death of the party represented by him.” 35. The Joint Committee also said: “Clause 73 (Original clause 76).—(iii) During the course of evidence, a point was raised, that, on the death of the client, the contract with the pleader comes to an end and so the obligation of the pleader to act on behalf of his client ceases on the death of the client. The Committee, however, feel that it should be made obligatory on the part of the pleader to inform the Court about the death of his client and for this purpose the contract between the pleader and the party should be deemed to subsist. Subrule (1) of new proposed Rule 10A of Order 22 has been amended accordingly. [...] The Committee feel that in view of the amendment made in subrule (1) of new proposed Rule 10A proposed subrule (2) in Rule 10A is not necessary as the provision is likely to cause hardship to the pleader. Subrule (2) of the new proposed Rule 10A of Order 22 has been omitted accordingly.” 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. 16 2025:HHC:24992 37. Rule 10A of Order XXII should be read with Rule 4 of Order III of the Code. Rule 4 of Order III reads thus: “4. Appointment of pleader.— (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a powerofattorney to make such appointment. (2) Every such appointment shall be filed in Court and shall, for the purposes of subrule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.” 38. Order III, Rule 4 prescribes the manner of appointment of a pleader and also the limit upto which such appointment remains in force. Every appointment of a pleader will be continued inter alia until the client or the pleader dies. As a general rule, therefore, on the death of the client his contract with the pleader comes to an end. So also, his authority to act on behalf of his client expires. 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 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 17 2025:HHC:24992 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. a. Rationale behind Order XXII Rule 10A. 41. An “innovative provision” in the form of Rule 10A has been introduced by the Amendment Act, 1976 in the Code to avoid procedural technicality scoring march over substantial justice. 42. In Gangadhar (supra), dealing with the object underlying Rule 10A, this Court observed that it was introduced to mitigate the hardship arising from the fact that the party to a suit or appeal, as the case may be, may not come to know about the death of the other party during the pendency of such suit or appeal. A suit or appeal takes years to come up for hearing and it is very difficult to expect the other party to be a watchdog for daytoday survival of his opponent. Then when the suit / appeal comes up for hearing, it comes to the light that not only one of the parties to the suit / appeal had died but the time for substitution had also run out and the suit or appeal had abated. It is with a view to avoid technicalities and to do full and complete justice that an important provision has been inserted in CPC, in the form of Order XXII Rule 10A, requiring the advocate appearing for the party to inform death of his client to the court so as to enable the other side to take appropriate steps to bring on record legal 18 2025:HHC:24992 representatives of the deceased. For that purpose, a deeming fiction is introduced that the contract between the dead client and pleader will subsist to the limited extent to supply information to the court about the death of his client. This Court stated that: “The Legislative intention of casting a burden on the learned 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 learned advocate and the deceased party was that the other party may not be taken unawares 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 Rule 10A was introduced by the Code of Civil Procedure (Amendment) Act of 1976 which came into force on February 1, 1977.” (Emphasis supplied) b. Nature of the salutary provision of Order XXII Rule 10A. 43. Rule 10A is procedural in nature. No penalty is provided for noncompliance with the rule. The provision is not “absolutely mandatory” [See: United Bank of India v. Kanan Bala, (1987) 2 SCC 583]. 44. The new provision has been inserted with a view that just delay in preferring substitution application may not be put forward a ground for dismissal of the application. Since a lawyer for the party is obliged to inform the court about the death of his client, his failure to do so should be treated as good and sufficient ground for condonation of delay. [See: Kathpalia v. Lakhmir Singh, (1984) 4 SCC 66]. I. Distinction between the legal maxims ‘ex injuria ius non oritur’ and ‘nullus 19 2025:HHC:24992 commodum capere potest de injuria sua propia’. 45. The genesis of the provision of Rule 10A of the Order XXII lies in the doctrine of ‘clean hands’. The doctrine of ‘clean hands’ originates from the Roman Law, and finds expression in two latin maxims being (i) ex injuria ius non oritur and (ii) nullus commodum capere potest de injuria sua propia, which mean “from wrong, no right arises” and “no one can take advantage of their own wrong”, respectively. [See: Schwebel, Stephen M. “Clean Hands, Principle” Eds., Rüdiger Wolfrum, Oxford University Press, 2009]. 46. Although the aforesaid two maxims, semantically appear to be one and the same, with the courts often applying the two interchangeably, yet there lies a very fine but pertinent distinction between the two maxims. The two maxims are comparable to each other but they are not interchangeable, and differ in their scope. Aaron X. Fellmeth and Maurice Horwitz in the “Guide to Latin Maxims in International Law” 1 st Ed., Oxford University Press, has explained the maxim ex injuria ius non oritur as follows: “A right does not arise from wrongdoing.” A maxim meaning that one cannot generally rely on a violation of law to establish a new legal right or to confirm a claimed right. E.g., “As Lauterpacht has indicated the maxim ex injuria ius non oritur is not so severe as to deny that any source of right whatever can accrue to third persons acting in good faith. Were it otherwise the general interest in the security of transactions would be too greatly invaded and the cause of minimizing needless hardship and friction would be hindered rather than helped.” Advisory Opinion on Legal Consequences For States Of The Continued Presence Of South Africa In Namibia (South West Africa) Notwithstanding Security Council Resolution 20 2025:HHC:24992 276 (1970), 1971 I.C.J. Rep. 16, 167 (separate opinion of Judge Dillard). An alternative formulation is Ius ex iniuria non oritur. Compare with Nullus commodum capere (potest) de sua iniuria propria.” (Emphasis supplied) 47. On the other hand, they have explained the maxim ‘nullus commodum capere potest de injuria sua propia’ as follows: “No advantage (may be) gained from one’s own wrong.” A maxim meaning that the law will not recognize or validate any profit a person derives from his own wrongdoing. For example, one may not destroy evidence of the extent of damages caused by one’s illegal act, then counter a claim for damages based on that act by pointing to the lack of evidence. E.g., “[T]he State must not be allowed to benefit by its inconsistency when it is through its own wrong or illegal act that the other party has been deprived of its right or prevented from exercising it [...]” (Emphasis supplied) 48. A perusal of the aforesaid makes it abundantly clear, that while the maxim ‘ex injuria ius non oritur’ is a principle governing the general spirit of the jurisprudence of “rights”, that a right cannot emanate or emerge from a wrongful act, the maxim ‘nullus commodum capere potest de injuria sua propria’, on the other hand, confirms the general rule of equity and prudence that no one can benefit from their own wrongdoing. The scope of the latter is wider than the former. The 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. Although, under the law, a right may arise even if from a wrongdoing, yet if exercise of such 21 2025:HHC:24992 right is allowed, it would malign the very jurisprudential underpinning of ‘right’ and ‘duty’. A right has a legal sanctity and backing to it, in order for it to have a legitimising effect, since the jural correlative of a right is duty. More particularly, the term “right” is very specific to not include every benefit, profit or advantage. The maxim solidifies the faith in law that no wrong action will be given a legal validity. The legal validity of a right flows from other legal norms or from a source of law [See: Niel MacCormick, “Rights in Legislation”, Law, Morality andSociety: Essays in Honour of H.L.A. Hart, P.M.S. Hacker, and Joseph Raz (eds). 189 206, Oxford: Clarendon Press (1977)]. 49. The maxim, ‘nullus commodum capere potest de injuria sua propria’, on the other hand, lays itself as a rule of equity. An advantage falling from wrongdoing may be a legal or illegal advantage. The maxim dictates that, be that as it may, no profit or advantage of a person’s wrongful act may be validated by the seal of law. It may very well happen, that the advantage may be legal or illegal, but the validation of law will not be extended to it by the law. Thus, the courts that have the discretion to allow or disallow the availment of such advantage in ordinary circumstances, are constrained to not permit a person who has committed a wrongful act to benefit from the advantageous position afforded to him because of such wrongful action as a matter of justice, equity and fairness. Fellmeth and Horwitz rightly extend an illustration, that when a person himself destroys evidence, he cannot take shelter of the defence of lack of evidence. The advantage falling from the wrong will not be validated by the courts of law. 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 22 2025:HHC:24992 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 noncompliance 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 complete justice on one hand and the contrasting patent absence of any penalty for noncompliance 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 subrule (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. 23 2025:HHC:24992 52. In Kusheshwar Prasad Singh v State of Bihar, (2007) 11 SCC 447, it was held that the aforesaid maxim is based on elementary principles, is fully recognised in courts of law and of equity, and, admits of illustration from every branch of legal procedure. The relevant observations read as under: “14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353] wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can_take undue advantage of his own wrong). 15. In Union of India v. Major General Madan Lal Yadav [(1996) 4 SCC 127: 1996 SCC (Cri) 592] the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were timebarred. This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated: “It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim. Which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.” 24 2025:HHC:24992 16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the nonperformance he has occasioned. To put it differently, “a wrongdoer ought not to be permitted to make a profit out of his own wrong”. (emphasis supplied) 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. xxxx xxxx xxxx 60. Rule 10A of Order XXII, as inserted by the Amendment Act, 1976 imposes an obligation on the pleader appearing for the party to intimate death of his client to the court. But there is difference of opinion as to whether the duty imposed on the pleader is confined to factum of death of a party or also to furnish names and particulars of legal representatives. xxx xxx xxx 63. 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 25 2025:HHC:24992 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. 64. This Court in Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi Amma (Dead) by Lrs. and Others reported in (2008) 8 SCC 321 has explained the principles applicable in considering applications for setting aside the abatement and as summarised such principles as under: “12. In State of M.P. v. S.S. Akolkar [(1996) 2 SCC 568] this Court held: (SCC pp. 56970, paras 67) “6. [...] Under Order 22 Rule 10A, it is the duty of the counsel, on coming to know of the death of a party, to inform it to the court and the court shall give notice to the other party of the death. By necessary implication delay for substitution of legal representatives begins to run from the date of knowledge. […] 7. It is settled law that the consideration for condonation of delay under Section 5 of the Limitation Act and setting aside of the abatement under Order 22 are entirely distinct and different. The court always liberally considers the latter, though in some case, the court may refuse to condone the delay under Section 5 in filing the appeals. After the appeal has been filed and is pending, the Government is not expected to keep watch whether the contesting respondent is alive or has passed away. After the matter was brought to the notice of the counsel for the State, steps were taken even thereafter; after due verification belated application came to be filed. It is true 26 2025:HHC:24992 that Section 5 of the Limitation Act would be applicable and delay is required to be explained. The delay in official business requires its broach and approach from public justice perspective.” (i) The words “sufficient cause for not making the application within the period of limitation” should be understood and applied 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 27 2025:HHC:24992 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 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) xxx xxx xxx 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 1st, 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. (self emphasis supplied) 28 2025:HHC:24992 31. The Hon’ble Supreme Court in Perumon Bhagvathy Devaswom Perinadu Village versus Bhargavi Amma (dead) by LRs & Others, (2008) 8 Supreme Court Cases 321, has elaborately discussed the failure of the lawyer representing the party to perform the duty, which has been casted upon him, under Order 22 Rule 10A. Relevant paragraphs 17 to 19 of the judgment, are reproduced as under: 17. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the ordersheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be indication of negligence or want of diligence. 18. The third circumstance is whether there is any material to contradict the claim of the appellant, if he categorically states that he was 29 2025:HHC:24992 unaware of the death of the respondent. In the absence of any material, the court would accept his claim that he was not aware of the death. 19. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party LRs of the deceased on account of the abatement) : (i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed; (ii) Neither the counsel for the deceased respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant. (iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim.” 32. If all the preliminary objections, which have been taken by respondent No.1(a), in this case, are considered in the light of the decision of the Hon’ble Supreme Court in Binod Pathak’s case (supra), this Court is of the view that none of the preliminary objections, which have been taken in the reply, even deserves consideration by this Court. Hence, rejected. 33. The respondents, in this case, have taken a plea that respondent No.1(a) was not aware about the 30 2025:HHC:24992 proceedings, whereas, his stand, so taken, is belied from the document, which, he himself has annexed with the reply, as the counsel representing the defendant has addressed the letter not to defendantSadh Ram, but, to respondent No.1(a) Ram Dayal. The said letter was sent on 14.3.2024. How, a person, who had received the letter on 14.03.2024, can even say that he was not aware about the litigation, which was filed against his father. Situation would have been otherwise, had this letter been addressed to defendantSadh Ram (since deceased). 34. In view of the decision of this Court in Jaswant Singh versus State of Himachal Pradesh & Others, 2015 (2) Shim.LC 674, the question of bringing on record the legal representatives of a deceased party and also the question of abatement of the suit, are to be decided by this Court, as, on the date of death of defendant Sadh Ram, the lis was pending before this Court. 35. The Hon’ble Supreme Court in Gangadhar & Another versus Raj Kumar, (1984) 1 Supreme Court Cases 121, has reiterated the legislative intent in enacting 31 2025:HHC:24992 Order 22 Rule 10A CPC. Relevant paragraph 6 of the judgment is reproduced as under: 6. Sole respondent died on April 19, 1980. His adopted son applied for substitution which included intimation to the court of the death of the respondent as envisaged by Rule 10 A on July 1, 1981, that is, nearly one year and six weeks after the death of his adoptive father and promptly within two weeks appellants moved LA. No. 2110 of 1981. And it is not made clear when notice of LA. No. 1980/81 moved by the adopted son was served upon the appellants or their learned Advocate. The legislative intention of casting a burden on the learned 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 learned Advocate and the deceased party was that the other party may not be taken unawares 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 Rule 10A was introduced by the CPC (Amendment) Act of 1976 which came into force on February 1, 1977. Unfortunately, the learned judge 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. In fact in a fact situation as the present one, we may preferably refer to Bhagwan Swaroop and Ors. v. Mool Chand and Ors. The view taken in that case 45 would unquestionably show that the High Court was in error in refusing to set aside abatement. We are of the opinion that the earliest knowledge about the death of the deceasedrespondent can be attributed to the appellants on July 1, 1981 when Raj Kumar applied for substitution. Promptly within two weeks the application for 32 2025:HHC:24992 substitution was made by the appellants. Therefore, it is satisfactorily established that that the appellants were prevented by a sufficient cause in making the application for substitution within the prescribed period of limitation and the delay deserves to be condoned. 36. Admittedly, the judgment and decree passed by this Court, in this case, is against a dead person and the judgment in favour and against a dead person is nullity. In such situation, the question, which arises for determination before this Court is as to whether for the omission made by the counsel representing the defendant, the plaintiff can be nonsuited or the judgment and decree can be reviewed on account of the fact that same has been passed against a dead person. 37. Hon’ble Supreme Court in Gurnam Singh (dead) through legal representatives and Others versus Gurbachan Kaur (dead) by Legal Representatives, (2017) 13 Supreme Court Cases 414, has held that the decree passed in favour or against a dead person is nullity and its validity can be raised in any proceedings. Relevant paragraph 21 of the judgment is reproduced as under: 33 2025:HHC:24992 21. It is a fundamental principle of law laid down by Court in Kiran Singh’s case (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a “nullity”. 38. A coordinate Bench of this Court in CMP(M) No.802 of 2020, titled as Barmo Devi and Others versus Virender Rana @ Virender Singh & Others, has also taken a similar view. Relevant portion of the judgment is reproduced as under: “Since the judgment and decree has been passed against a dead person, therefore, the same is nullity and is accordingly set aside. RSA No.187 of 2007 is restored to its original number and file.” 39. Similar view has also been taken by this Court in Review Petition No.20 of 2018, titled as Telu Ram (since deceased) through his LRs Keso Devi & Others verus Kalyan Singh and Others. Relevant para 3 of the judgment is reproduced as under: 34 2025:HHC:24992 “3. In view of this and in the light of the law laid down by the Hon’ble Supreme Court in Kishun alias Ram Kishun (Dead) through LRs. Vs. Behari (Dead) by LRs., (2005) 6 Supreme Court Cases 300 and Gurnam Singh (Dead) through legal representatives and others Vs. Gurbachan Kaur (Dead) by legal representatives, (2017) 13 Supreme Court Cases 414, this Review Petition is allowed and judgment and decree, dated 11.05.2017, passed by this Court in RSA No. 124 of 2002, titled as Kalyan Singh and others Vs. Shri Mehar Singh and others are set aside. Regular Second Appeal is ordered to be restored to its original number and is ordered to be listed for consideration on 17th September, 2019. Petition stands disposed of. 40. In this case, the learned counsel appearing for the respondent has relied upon the decision of Hon’ble Supreme Court in Civil Appeal No.13407 of 2024, titled as Om Prakash Gupta @ Lalloowa (now deceased) & others versus Satish Chandra (Now Deceased). With due respect to the law laid down by the Hon’ble Supreme Court, the same, in no way helps the case of the respondents, as the mandatory duty casted upon the counsel representing the defendant, has not been performed. As such, the respondents cannot take the benefit of their own wrong. 35 2025:HHC:24992 41. At the cost of repetition, the decree, which has been passed against a dead person (defendant), is liable to be reviewed, as, the plaintiff cannot be penalized for the omission made by the counsel representing the defendant, who continued to represent the defendant right from the date of his death till passing of the judgment and decree, by this Court. As such, the respondents are estopped from raising the plea with regard to the alleged abatement of the suit, on account of, not bringing the legal representatives of defendantSadh Ram, on record. 42. Situation would have been otherwise, had the factum of death been brought on record, as per the mandate of Order 22 Rule 10A of the CPC, whereas, no such act has been done by the learned counsel for the defendant. 43. So far as the objection of the learned counsel appearing for the respondents, qua the fact that the petitioner has not moved application, for bringing on record the legal representatives of deceased Sadh Ram, within the prescribed period of 90 days, is concerned, as held in the preceding paragraphs of the judgment, the 36 2025:HHC:24992 factum of death was not brought on record, by the learned counsel for the defendant, during the pendency of the lis. After the decision of the case, by this Court, there was no occasion for the petitionerplaintiff to move the application for substitution of the legal representatives of defendant Sadh Ram, unless or until, the judgment and decree is not revived, being passed against a dead person and the proceedings are not restored to its original number and file. 44. Although, a prayer has been made, in the petition, to set aside the abatement and to bring on record the legal representatives of deceased Sadh Ram, but, in a decided matter, the said prayer cannot be accepted. Moreover, the same is required to be determined, on the basis of the application moved, in this regard, under the appropriate provisions of law, when, the proceedings will be revived. 45. In view of the discussion made hereinabove, the present petition is allowed. Consequently, the judgment and decree dated 12.01.2024, passed by this Court in Civil Suit No.4 of 2008, titled as Darshan Singh versus Sadh Ram, is recalled and the Civil Suit is ordered to be restored 37 2025:HHC:24992 to its original number and file. Pending application(s), if any, shall also stand disposed of. 46. For further proceedings, list the Civil Suit on 4th August, 2025. ( Virender Singh ) Judge July 28, 2025(ps)

DARSHAN SINGH v. SADH RAM (DECEASED THROUGH LRs RAM DAYAL AND ANOTHER)

Judgment text