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Ram Kala and ors. Vs. the Assistant Director, Consolidation of Holdings, Punjab, Rohtak and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 209 of 1974
Judge
Reported inAIR1977P& H87
ActsLimitation Act, 1963 - Article 137; Constitution of India - Article 226; Code of Civil Procedure (CPC) ), 1908 - Order 22, Rule 4 - Sections 141
AppellantRam Kala and ors.
RespondentThe Assistant Director, Consolidation of Holdings, Punjab, Rohtak and ors.
Appellant Advocate Anand Sarup,; R.S. Mittal and; K.G. Chaudhry, Advs.
Respondent Advocate Puran Chand and; V.K. Vashisht, Advs.
DispositionAppeal allowed
Cases ReferredSha Mulchand and Co. Ltd. v. Jawahar Mills Ltd.
Excerpt:
.....adhered to in the case of writ petition, the entire purpose of having a quick and inexpensive remedy would be defeated. , speaking for the bench, endorsed this view in the following words: it is an entirely different matter that while entertaining and deciding such an application, this court may draw upon, the principles of the code of civil procedure which arc based on equity, justice and good conscience but in doing so this court seldom takes recourse to the penal provisions of the said code. if the high court is then satisfied that manifest injustice done to such a petitioner cannot be avoided unless the newly filed writ petition is admitted to hearing, it would be open to it to entertain such a petition......procedure laid down in the code, were to be imported through section 141 of the code into these writ proceedings, their very purpose is likely to be de-feated by their becoming bogged in procedural delays. in short, the provisions of the code of civil procedure do not, in terms, govern writ proceedings under article 226 of the constitution.'8. in k. l. bhansali v. the chief controller of imports and exports, (1967) 69 pun lr (d) 19, r. s. narula, j. (as the learned chief justice then was) observed-'moreover, i am inclined to think that if even one of the legal representatives of the deceased petitioner had claimed to be brought on record he could have been allowed to prosecute the writ petition. the law of abatement does not apply to petition under article 226 of the constitution. all.....
Judgment:

M.R. Sharma, J.

1. The facts of the case are given in the elaborate order of reference prepared by my Lord the Chief Justice and need not be repeated all over again.

2. The decision of the case depends upon the answer to the following ques-tion:--

Whether Article 137 of the Schedule to the Limitation Act (36 of 1963) does or does not apply to an application for adding or substituting parties to a petition under Article 226 of the Constitution ?

3. Order XXII, Rule 4, Code of Civil Procedure, lays down that where one of two or more defendants die and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application given in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. These provisions have been made expressly applicable to appeals by virtue of Rule 11 of Order 22, Code of Civil Procedure. However, there is no express provision in the Code of Civil Procedure making the provisions of Order XXII, Rule 4, of the said Code applicable to the revision petitions. Consequently, this Court has held in a series of judgments that Order XXII of the Code does not apply to the revision petitions. See in this connection Jwala Singh Prem Singh v. Malkan Nasirpur, AIR 1958 Punj 171; Ram Saran Dass Tara Chand v. RamRichhpal L. Mannu Lal, AIR 1963 Punj 206; and Smt. Dhan Devi, v. Bakhshi Ram, AIR 1969 Punj & Har 270.

4. It is, however, argued that in a petition under Article 226 of the Constitution of India, civil rights of the parties are involved and the procedure laid down in the Code of Civil Procedure, so far as it can be made applicable to proceedings which partake of the nature of civil proceedings and by virtue of Section 141 of the Code and other provisions of the Code including Order XXII, does apply to such proceedings.

5. While exercising jurisdiction under Article 226 of the Constitution, this Court does not try a 'suit' as is ordinarily understood. The word 'suit' is not defined in the Code of Civil Procedure. However, in Hansraj Gupta v. Dehra Dun Mussorie Electric Tramway Co. Ltd., AIR 1933 PC 63, it was held that the word 'suit' ordinarily means, and apart from some context must be taken to mean, 'a civil proceeding instituted by the presentation of a plaint'. Similar view was taken by the Supreme Court in Nawab Usmanali Khan v. Sagar Mal, AIR 1965 SC 1798. The Court observed-

'Now, a proceeding under Section 14 read with Section 17 of the Indian Arbitration Act, 1940, for the passing of a judgment and decree on an award does not commence with a plaint or a petition in the nature of a plaint, and cannot be regarded as a suit and the parties to whom the notice of the filing of the award Is given under Section 14(2) cannot be regarded as 'sued in any Court otherwise competent to try the suit'.'

6. The proceedings under Article 226 of the Constitution relating to civil matters are no doubt civil proceedings but on that ground alone it cannot be held that the Code of Civil Procedure governs such proceedings. This Court may while exercising jurisdiction under Article 226 of the Constitution draw upon the principles enunciated in the Code of Civil Procedure, for, the principle confined therein or by and large based on the principles of natural justice. Never-theless, it can devise its own procedure for rendering speedy and efficacious jus-tice in the circumstances of the case. Section 141 of the Code of Civil Procedure lays down that the procedure provided in that Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Courtof Civil jurisdiction but this provision cannot be pressed into service for putting procedural fetters in the way of this Court for exercising jurisdiction under Article 226 of the Constitution for, the adoption of that course would practically strangulate this jurisdiction. In Babu-bhai Muljibhai Patel v. Nandlal Khodidas Barot, AIR 1974 SC 2105, the Court took special notice of the words 'as far as it can be made applicable' in Section 141, Code of Civil Procedure, and held-

'The words 'as far as it can be made applicable' make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the Court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any Government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petition, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226.'

7. Similar view was expressed by R. S. Sarkaria, J. (now a learned Judge of the Supreme Court), in Bhagwan Singh v. Additional Director of Consolidation, Punjab, Ferozepore, AIR 1968 Punj and Har 360. It was observed-

'What is provided in Section 141 is that the procedure laid down in the Code in regard to suits is to be followed so far as it can be, in all proceedings in any Court of civil jurisdiction. A High Court, when it exercises extraordinary jurisdiction under Article 226 of the Constitution, cannot, in my opinion, be said to be a Court of civil jurisdiction. This special jurisdiction of a High Court aims at securing a very speedy and efficacious remedy, to a person whose legal or constitutional right has been infringed. If all the elaborate and technical rules of Civil Procedure laid down in the Code, were to be imported through Section 141 of the Code into these writ proceedings, their very purpose is likely to be de-feated by their becoming bogged in procedural delays. In short, the provisions of the Code of Civil Procedure do not, in terms, govern writ proceedings under Article 226 of the Constitution.'

8. In K. L. Bhansali v. The Chief Controller of Imports and Exports, (1967) 69 Pun LR (D) 19, R. S. Narula, J. (as the learned Chief Justice then was) observed-

'Moreover, I am inclined to think that if even one of the legal representatives of the deceased petitioner had claimed to be brought on record he could have been allowed to prosecute the writ petition. The law of abatement does not apply to petition under Article 226 of the Constitution. All that has to be seen is whether the right which entitled the deceased to invoke the writ jurisdiction of the High Court has or has not survived to the legal representative who claims to prosecute the petition.'

9. Even in Dula Singh v. Union of India, (1971) 73 Pun LR 432, Tuli, J., speaking for the Bench, endorsed this view in the following words:--

'The learned counsel for the appellant has urged that the provisions of Order 22 of the Code of Civil Procedure do not apply to writ proceedings and in support of his submission he relies on the judgment of Shamsher Bahadur, J. in Kirpal Singh v. The Deputy Custodian General, Civil Writ No. 325 of 1956, decided on April 21, 1961 (Punj). The iudg-ment of the learned Judge was confirmed in appeal by a Division Bench in Ajit Singh v. The Deputy Custodian, L. P. A. No. 133 of 1961, decided on August 10, 1961 (Punj). The same view was taken by another Division Bench of this Court in Chaudhry Jai Ram Dass v. Guroharan Singh, decided on March 6, 1'963 (Punj). The matter was examined by me in Pali Ram v. The Additional Director Consolidation of Holdings, Hissar, wherein I held that-

'The writ petition does not abate because of the death of the respondent on the ground that his legal representatives were not brought on record within the time prescribed in the Limitation Act. The legal representatives of a deceasedpetitioner or a deceased respondent can be brought on the record under Order 1, Rule 10, Code of Civil Procedure.' While coming to that conclusion I had relied on the judgment of Shamsher Bahadur, J. in Kirpal Singh's case (supra) and on the judgment of Narula, J. in K. L. Bhansali v Chief Controller of Imports and Exports, 1967-69 Pun LR (D) 19, wherein the learned Judge had held that 'the law of abatement did not apply to the petitions under Article 226 of the Constitution'. '

10. Tre learned counsel for the respondents then relied upon Chandradeo Pan-dey v. Sukhdeo Rai, AIR 1972 All 504 (FB) in which it has been held that an application for substitution of heirs of a deceased Party in a revision petition is governed by Article 137 of the Limitation Act. This authority does not advance the case of the respondents because in the instant case we are concerned with an application for the substitution of the heirs of a deceased party in a petition under Article 226 of the Constitution. Besides, so far as this Court is concerned, it has been consistently held that Order 22, Code of Civil Procedure, does not apply to revision petitions. For the purposes of this case, it is not necessary to examine the correctness of the earlier judgments of this Court on this point vis-a-vis the view taken by the Allahabad High Court.

11. In view of the binding precedent of the Supreme Court and the preponderance of opinion in this Court, we hold that Order 22, Code of Civil Procedure, does not apply to the writ proceedings.

12. However, in Dula Singh's case ((1971) 73 Pun LR 432) (supra), the learned Judges after coming to the above-mentioned conclusion made some observations to the effect that an application for bringing on record the legal representatives of a deceased party in a writ petition is governed by Article 137 of the Schedule to the Limitation Act. The learned counsel for the respondents strongly relied on these observations and referred to Article 137 of the Limitation Act corresponding to Article 181 of the Limitation Act No. 9 of 1908, which reads as under:--

Description of application.

Period of Limitation.

Time from which period beginsto run.

137.

Any other application for whichno period of limitation is provided elsewhere in this Division.

Three years.

When the right to applyaccrues.

13. He argued that the language employed in the Article indicates that three years' period of limitation is provided for any application which is presented to a Court. We are unable to accept this contention raised by the learned counsel in view of the following observations made by their Lordships of the Supreme Court in Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., Salem, AIR 1953 SC 98:--

'Learned Advocate, however, strongly relies on Article 181, Limitation Act. That Article has, in a long series of decisions of most, if not all, of the High Courts, been held to govern only applications under the Code of Civil Procedure. It may be that there may be divergence of opinion even within the same High Court but the preponderating view undoubtedly is that the Article applies only to applications under the Code.'

14. As already noticed, this Court while exercising jurisdiction under Article 226 of the Constitution does not try a suit as commonly understood. It is settled law that when a Court is invested with a particular jurisdiction under an Act of the Parliament, it also gets invested with the authority to take all ancillary steps which are necessary to exercise that jurisdiction. A petition presented to this Court exercising jurisdiction under Article 226 of the Constitution cannot necessarily be regarded as an application under the Code of Civil Procedure. It is an entirely different matter that while entertaining and deciding such an application, this Court may draw upon, the principles of the Code of Civil Procedure which arc based on equity, justice and good conscience but in doing so this Court seldom takes recourse to the penal provisions of the said Code. All that has to be seen is whether the grant of such an application would promote the ends of justice or not. We are, therefore, of the view that Article 137 of the Schedule to the Limitation Act cannot be held to govern an application filed in the High Court exercising jurisdiction under Article 226 of the Constitution of India.

15. There is yet another way of looking at the things. In case a writ petition is dismissed on the ground that the legal representatives of a necessary party could not be brought on record, the dismissal of the petition would not be regarded as a dismissal on merits and the order passed cannot operate as a bar of res judicata. The petitioner could file another petition on the same subject andexplain the delay by averring that he had been diligently fighting the earlier writ petition. If the High Court is then satisfied that manifest injustice done to such a petitioner cannot be avoided unless the newly filed writ petition is admitted to hearing, it would be open to it to entertain such a petition. Such a course would tend to increase procedural delays only instead of promoting the cause of justice. An interpretation which leads to such a result has to be avoided at all costs. In our considered opinion Dula Singh's case ((1971) 73 Pun LR 432) (supra) which lays down that Article 137 of the Schedule to the Limitation Act No. 36 of 1963 applies to an application for adding or substituting parties to a petition under Article 226 of the Constitution is not correctly decided.

16. For the aforementioned reasons, we are of the view that Article 137 of the Schedule to the Limitation Act No. 36 of 1963 does not apply to an application for adding or substituting a party to a petition under Article 226 of the Constitution,

17. In the result this appeal is allowed, the orders dated November 23, 1973, and March 28, 1974, passed by the learned Judges of this Court are set aside and the case is remanded to the learned single Judge for a fresh decision in accordance with law.

O. Chinnappa Reddy, J.

18. I agree.

Surinder Singh, J.

19. I agree.


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