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Union of India Vs. Ganga Datt and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 226 of 1967
Judge
Reported inAIR1971Delhi65
ActsCode of Civil Procedure (CPC), 1908 - Sections 115, 146 and 151 - Order 22, Rule 10
AppellantUnion of India
RespondentGanga Datt and ors.
Appellant Advocate N.D. Bali, Adv
Respondent Advocate R.S. Verma, Adv.
Cases ReferredInder Dev v. Punjab State
Excerpt:
.....to custody of a minor child. - he further contends that the provisions of section 146 of the code of civil procedure would clearly be attracted in the circumstances of the case an inasmuch as the petitioner could proceed against ganga datt it can also take proceedings to continue proceedings against persons claiming under ganga datt. bali, however, failed to notice that the learned judge in the same judgment observed that the court may in exercise of its discretion refuse to help a negligent party who comes to court after considerable lapse of time which the court may not consider reasonable in the circumstances. the right to commence proceedings or continue them may be there in a party but if that right is exercised in a manner which clearly spells out laches the courts would be..........for the present petition (union of india) early in august, 1967. no steps were taken to bring the legal representatives of ganga datt on record or to rectify the filing of the revision petition against a dead party till february, 1970. on or about february 5, 1970 an application under section 151 read with section 153 and o. 41, r. 20, civil p. c. was moved in this court seeking to bring the legal representatives of ganga datt on record.this petition has been resisted by the respondents who have urged that the legal representatives be not brought on record. when the matter came up for hearing before one of us (hon'ble the chief justice) sitting singly he noticed the contentions of both the parties but considering the point involved to be of some importance directed the civil revision to.....
Judgment:

Parkash Narain, J.

1. A civil suit for declaration and permanent injunction (suit No. 528 of 1962) was filed by Ganga Datt, Attar Singh, Jagat Singh, Amar Singh and Jaswant Singh sons of Debi Sahai in the Court of Senior Sub-Judge, Delhi against Gaon Sabha of Village Burari in which it was prayed that the order of the Revenue Assistant vesting the land set out in that suit in the Gaon Sabha was wrong, illegal, ultra virus and not binding on the plaintiffs. The impugned order was in respect of the vesting of the land which was the subject-matter of dispute in that suit in the Gaon Sabha in accordance with the provisions of the Delhi Land Reforms Act, 1954. The suit was decreed in favor of the plaintiffs.

After the amendment of the Delhi Land Reforms Act, 1954 by the insertion of Section 161-B, the Union of India moved an application under the said provision for the setting aside of the decree. This application was dismissed by the Court of Shri H. C. Gupta, P. C. S., Sub-Judge 1st Class, Delhi by his order dated 24-1-1967. Aggrieved from that order Union of India filed the present revision petition. In the mean time, however, Ganga Datt died on 26-3-1967. It is an admitted case that the revision petition was filed against Ganga Datt and others subsequent to the death of Ganga Datt. On the revision petition being admitted notices were issued to the present respondents whereupon the process server reported that Ganga Datt was dead. the fact came to the knowledge of the learned counsel for the present petition (Union of India) early in August, 1967. No steps were taken to bring the legal representatives of Ganga Datt on record or to rectify the filing of the revision petition against a dead party till February, 1970. On or about February 5, 1970 an application under Section 151 read with Section 153 and O. 41, R. 20, Civil P. C. was moved in this Court seeking to bring the legal representatives of Ganga Datt on record.

This petition has been resisted by the respondents who have urged that the legal representatives be not brought on record. When the matter came up for hearing before one of us (Hon'ble the Chief Justice) sitting singly he noticed the contentions of both the parties but considering the point involved to be of some importance directed the civil revision to be listed before a Division Bench.

It has been noticed in the referring order that there was a preponderance of authority on the point that the provisions of O. 22 of the Code of Civil Procedure do not apply to revision petitions. So it was observed that the question which arose for determination was whether the petitioner should be allowed to implead the legal representatives of Ganga Datt as parties irrespective of the inordinate delay in making the application for bringing the legal representatives of Ganga Datt on record. It is in these circumstances that the matter has been placed before a Bench of the Court.

2. Mr. N. D. Bali has urged that the provisions of O. 22 of the Code of Civil Procedure do not apply to revision petitions and as such there is no limitation for moving an application for bringing the legal representatives of a dead respondent on record nor does a revision petition abate. He further contends that the provisions of Section 146 of the Code of Civil Procedure would clearly be attracted in the circumstances of the case an inasmuch as the petitioner could proceed against Ganga Datt it can also take proceedings to continue proceedings against persons claiming under Ganga Datt.

Lastly, Mr. Bali contended that no fetters by way of limitation can be placed on the revisory jurisdiction of the High Court and once the matter has been brought to the notice of the Court irrespective of whether the parties appear or do not appear or proper parties are before the Court or not the Court must exercise its jurisdiction under Section 115 of the Code if impugned order of the Court below falls within the mischief of any of the three sub-clauses of S. 115 of the Code of Civil Procedure. In short, what Mr. Bali contends is that filing of the revision petition against a dead respondent or not bringing his legal representatives on record fro such a long time cannot and should not stand in the way of this Court on its revisional side in correcting the error in the impugned order of the trial Court.

In support of his contention Mr. Bali first relied on an unreported decision of this Court rendered by V. S. Deshpande, J. on 3-2-1970 in C. Ms. Nos. 187 and 188 of 1969 in R. F. A. 344 of 1968 (Delhi), Union of India v. Tekan.

In that case certain fields had been acquired by Union of India from six persons at whose instance a reference under Section 18 of the Land Acquisition Act, 1894 was made to the District Judge, Delhi by the Land Acquisition Collector, Delhi. During the pendency of the reference one of the applicants, ram Chand, died and his legal representatives were brought on record. The District Judge made his award on 7-6-1968. The Union of India applied for a certified copy of the award in order to prefer an appeal against it. In the certified copy the name of Ram Chand appeared as one of the applicants presumably, because the cause title had not been changed in spite of the legal representatives of Ram Chand having been brought on record. The Union of India filed an appeal against the applicants including Ram Chand. On notice of appeal issued to Ram Chand it was reported that he had died even prior to the announcement of the award by the District Judge. Another applicant Tekan had died prior to the filing of the appeal but after the announcement of the award. An application was, accordingly, moved under O. 22, R. 4. Civil P. C. to bring the legal representatives of Ram Chand and Tekan or record.

In those circumstances it was held applying Section 146 of the Code of Civil Procedure that there was no limitation for bringing the legal representatives of Tekan on record and the application was allowed. The learned Judge was pleased to observe on the ratio of the decision of the Supreme Court in Smt. Sail Bala Dassi v. Smt. Nirmala Sundari Dassi, : [1958]1SCR1287 , that

'it would appear, thereforee, that the case of Tekan who died after the reference was disposed of but before the appeal was filed would be governed by Section 146 of the Code of Civil Procedure as it could not fall under O. 22, R. 4, Civil P. C. The Union of India under Section 146, Civil P. C. would have a right to take proceedings of this appeal against the legal representatives of Tekan inasmuch as they had the right to do so against Tekan. No limitation period is prescribed for action to be taken under Section 146 of the Code of Civil Procedure. Such an action is taken entirely in the interest of Justice and, thereforee, is not subject to any bar of limitation.'

Earlier the learned Judge had observed that the provisions of O. 22 applied only when either a suit of an appeal was pending and since no proceedings were pending and since no proceedings were pending when Tekan died the provisions of O. 22 were not attracted. As far as Ram Chand was concerned bringing of his legal representatives on record was permitted on the ground that a party cannot be made to suffer for the mistake of a Court and inasmuch as the legal representatives of Ram Chand had been brought on record but the cause title had not been changed the Union of India was milled into thinking that Ram Chand was the respondents to be proceeded against as his name was shown in the certified copy of the award.

3. In our view the ratio of this judgment will not be attracted in the present case. Section 146 of the Code of Civil Procedure is only an enabling provision allowing a person to proceed or continue proceedings against any person claiming under a person who had earlier been proceeded against, or allowing a person claiming under a person who had originally commenced proceedings commenced by the former. As was observed by their Lordships of the Supreme Court in Smt. Saila Bala Dassi's case, : [1958]1SCR1287 Section 146, Civil P. C. has been enacted only with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment.

No doubt the section should receive, a beneficial interpretation and the scope of the section should not be whittled down by placing a too limited or narrow construction upon it, all the same the person in whom the rights have vested by devolution or assignment should not have rights more than what the original litigant had. Similarly, a person in whom the rights have come to be vested should not be in a worse position than the person against whom the original litigation was commenced.

Furthermore, the opening words of Section 146 of the Code of Civil Procedure make it clear that the benefits given to the representatives under this provision was subject to the other provision of the Code or any law for the time being in force. In that view of the matter it would seem that in suits and appeals at least the rights conferred by Section 146 of the Code would be subject to compliance with the provisions of O. 22 of the Code of Civil Procedure and the Limitation Act. it is true that the provisions of O. 22, R. 10 are attracted only during the pendency of a suit or an appeal but then if no appeal was competent or no suit could be brought against a dead [arty but one is preferred the defect would not be curable by invoking the provisions of Section 146 of the Code. If a devolution of interest or assignment takes place after the decision of the suit the assignee or the representative has right to file an appeal.

Similarly, if the assignment or devolution takes place during the pendency of a suit or an appeal the representative or assignee is enabled to apply under O. 22 of the Code and continue with the suit or the appeal. That is a contingency, however, which is quite different from an appeal or revision or a suit being filed against a dead person and his representatives sought to brought on record by way of substitution. The provision of O. 22 have been made specifically applicable to appeals by Order 22, Rule 11, Civil P. C. It is not applicable to revisions and the inherent power of the Court to substitute parties can be exercised in case of revisions only in the context of exercising judicial discretion in interfering with the order of the Court below and not under Section 146 of the Code.

4. Mr. Bali also referred to another unreported decision of this Court rendered by Rangarajan, J. on 21-11-1969 in Civil Revn. No. 80-D of 1962 (Delhi), Abdul Khaliq v. Abdul Hamid, which was a revision petition preferred under Section 35 of the Delhi and Ajmer Rent Control Act, 1952 in which legal representative of one of the parties was sought to be brought on record and it was held once a revision petition is admitted and the records are sent for it ceases to be a matter merely between party and party as it is sometimes stated but becomes one between court and court. On the ratio of his observation Mr. Bali contended that once the revision petition has been admitted irrespective of parties' legal representatives being before the Court the impugned order has to be examined and if it falls within the mischief of the three sub-clauses of Section 115 of the Code of Civil Procedure the Court is bound to upset the order whether the legal representatives of a party are on record or not.

Mr. Bali, however, failed to notice that the learned Judge in the same judgment observed that the Court may in exercise of its discretion refuse to help a negligent party who comes to Court after considerable lapse of time which the Court may not consider reasonable in the circumstances. It is true that the learned Judge had also observed that once a revision petition is admitted the Court should not merely on the ground that a legal representative of a deceased party had not been imp leaded within a reasonable time shut its eyes from deciding the matter but then the scope of revision petitions under Section 35 of the Delhi and Ajmer Rent Control Act, 1952 are quite different from scope of revision petitions under a section 115 of the Code. Further, there is no limitation prescribed if the Court wants to interfere suo motu under Section 115 of the Code but if it is moved by a party to interfere with the order of a lower Court then the exercise of discretion has to be circumscribed by the vigilance that the party had shown.

The relief under Section 115 of the Code is a discretionary relief and a litigant applying for revision or for bringing legal representatives on record in a revision petition is expected be vigilant with the prosecution of his case. What is reasonable time is a question of fact and would depend on the facts of each case. The right to commence proceedings or continue them may be there in a party but if that right is exercised in a manner which clearly spells out laches the Courts would be reluctant to exercise discretion in favor of such a party.

If the law of limitation does not prescribe a period then Courts entertain proceedings on principles of equity and refuse to exercise discretion in favor of those who are not diligent, The mere existence of a right to move a Court does not automatically invest a party with the right to get a cause decided in its favor if the circumstances of the case show that the party has been negligent. it is on this principle that even petitions under Art. 226 of the Constitution of India, if moved with undue delay, are not entertained and the Courts refuse to interfere with the order impugned by a party or give relief against an alleged invasion of rights.

If the law of limitation does not prescribe a period then Courts entertain proceedings on principles of equity and refuse to exercise discretion in favor of those who are not diligent. The mere existence of a right to move a Court does not automatically invest a party with the right to get a cause decided in its favor if the circumstances of the case show that the party has been negligent. It is on this principle that even petitions under Art, 226 of the Constitution of India, if moved with undue delay, are not entertained and the Courts refuse to interfere with the orders impugned by a party or give relief against an alleged invasion of rights.

The power of the High Court to deal with a revision petition irrespective of the death of a party cannot be regarded as curtailed by such death inasmuch as the High Court can even suo motu call for the record and interfere with the order of the Court below. All the same, a party whether it will choose to intercase will depend upon the party's own diligence. Even if a party is allowed to deemed to have been admitted against pleaded and in the present circumstances admittedly the revision petition against the legal representation of Ganga Datt would be barred by time.

There is no Explanationn by the petitioner as to why in spite of knowledge of the death of Ganga Datt obtained in August 1967 it took no steps to proceed against the legal representatives of Court itself sent for the record it was a different matter but here even the revision as filed was incompetent. So, irrespective of the rights the Court has in suo motu revision the facts of this case disincline us to exercise our discretion in favor of the petitioner. The Courts are not supposed to come to the rescue of a person who has slept over his rights and refuses to give any reasonable Explanationn for his laches. We are fortified in coming to this concussion by a decision of the Punjab High Court rendered by A.N. Bhandari, C.J. in Inder Dev v. Punjab State, .

5. In this view of the matter, the application for bringing the legal representatives of Ganga Datt on record is dismissed.

6. The revision petition itself having been filed against the dead person and it being nowhere alleged that the revision petition can proceed against the remaining respondents even if Ganga Datt is excluded from the array of respondents the revision petition is also dismissed.

7. The respondents will entitled to their costs. Counsel's fee is Rs.200/-

H.R. Khanna, C.J.

8. I agree. It is in my opinion, difficult to accede to the contention that the application to implead the legal representatives of Ganga Datt should be allowed without taking into account the delay in making that application. As stated in the referring order, the limitation prescribed under Art. 131 of Limitation Act, 1963 for filing revision is 90 days from the date of the order sought to be revised. In the present case the revision was filed against a dead person, because Ganga Datt had died before the filing of the revision. The petitioner through its counsel on August 7, 1967, of the death of Ganga Datt. The petitioner took no step to implead the legal representatives till February 19, 1970. There was thus a delay of about two and a half years in bringing on record the legal representatives of Ganga Datt. No cogent reason has been given for the condensation of the delay.

In considering the delay in filing the application to implead legal representatives the Court cannot be oblivious of the period prescribed for the filing of revision. It would indeed be anomalous to allow a period of two and half years to implead the legal representatives of the respondent who was dead at the time of the filing of the revision when the period prescribed for the filing of the revision is only 90 days. Section 146 of the Code of Civil Procedure as pointed out by my learned brother. Prakash Narain, J., has been enacted with a different purpose and cannot be of any avail for condoning the delay.

9. Order accordingly.


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