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Ram Piari and ors. Vs. the Union of India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revn. Nos. 271 and 451 of 1972
Judge
Reported inAIR1978Delhi129; 1978RLR186
ActsLand Acquisition Act, 1894 - Sections 18 to 26; Code of Civil Procedure (CPC), 1908 - Sections 53 - Order 9 - Order 22, Rules 3 and 9; Limitation Act
AppellantRam Piari and ors.
RespondentThe Union of India
Appellant Advocate Kesri Singh, Adv
Respondent Advocate K.N. Kataria and ; N.S. Choudhry, Advs.
Cases ReferredHansraj Gupta v. Dehra Dun Mussoorie Electric Tramways Co. Ltd.
Excerpt:
land acquisition act (1894) - section 18--application for reference under--applicability of order 22 and order 9, c.p.c. thereto.; in this case one smt. surjo along with other claiming to be person interested, in respect of their lands acquired, feeling aggrieved by the award filed reference petition under section 18 of the land acquisition act before the land acquisition collector requiring him to refer the matter for the determination of the court. during the pendency of the reference petition in the court of additional district judge, delhi, smt. surjo died on 8-4-1971. an application was filed in the court on 12th october, 1971, requesting that her daughters, namely, smt. ram piari, smt. bhagwati, smt. champa and smt. ratna, in whose favor smt. surjo was stated to have made a will,.....prithvi raj, j. 1. lands covered by award no. 1956 dated 21st march, 1967, were acquired by the delhi administration for a public purpose, viz., planned development of delhi at public expense. one smt surjo along with others claiming to be persons interested in respect of their lands acquired feeling aggrieved by the award filed reference petition under s. 18 of the land acquisition act (herein to be called 'the act') before the land acquisition collector (herein to be called 'the collector') requiring him to refer the matter for the determination of the court. during the pendency of the reference petition in the court of an additional district judge, delhi, (shri g. r. luthra), smt. surjo died. am application was filed in the court on 12th oct. 1971, requesting that her daughters,.....
Judgment:

Prithvi Raj, J.

1. Lands covered by award No. 1956 dated 21st March, 1967, were acquired by the Delhi Administration for a public purpose, viz., planned development of Delhi at public expense. One Smt Surjo along with others claiming to be persons interested in respect of their lands acquired feeling aggrieved by the award filed reference petition under S. 18 of the Land Acquisition Act (herein to be called 'the Act') before the Land Acquisition Collector (herein to be called 'the Collector') requiring him to refer the matter for the determination of the Court. During the pendency of the reference petition in the Court of an Additional District Judge, Delhi, (Shri G. R. Luthra), Smt. Surjo died. Am application was filed in the Court on 12th Oct. 1971, requesting that her daughters, namely, Smt. Ram Piari, Smt. Bhagwati, Smt. Champa and Smt. Ratna in whose favor Smt. Surjo was stated to have made a will be brought on the record, As per averment in the said application Smt. Surjo died on 8th April, 1971. The respondents, Union of India, opposed the application alleging that the same was barred by limitation and that the reference petition in respect of the claim of Smt. Surio had abated according to the provisions of O. 22 of the Civil P. C. 1908 (herein to be called 'the Code'). The learned Additional District Judge accepted the twin contentions noted above and by his impugned order dated 4th May, 1972, holding that the application was barred by time and that reference petition in respect of the claim filed by Smt. Surjo had abated, dismissed her claim with a direction that her name be deleted from the reference petition. The legal representatives of the deceased, Smt. Surjo, feeling aggrieved by the above said order challenged the correctness of the same in Civil Revision No. 271 of 1972 which care up for hearing before one of us (V. Deshpande, J.). The learned single Judge noticing conflict of judicial decisions on the applicability of the provisions of Order Xxii of the Code and that of the Limitation Act to the proceedings under Section 18 of the Act before the Court directed that the Civil Revision Petition be placed before the Chief Justice for the constitution of a Full Bench for its the Civil Revision 1972 has come up before us.

2. In Civil Revision Petition No. 451 of 1972, respondent Budhan feeling aggrieved by the award made in respect of his land acquired in pursuance of the proceedings taken under the Act filed a reference application under section 18 of the Act. The said application was pending in the Court of an Additional District Judge, Delhi, (Shri J. D. Jain) who dismissed the same in default on 27th March, 1968. The claimant after the lapse or four years on 3rd May, 1972, moved an application under O. 9 R. 9 of the Code for restoration of the said application. The learned Additional District Judge restored the application' in the view of the decision of P. S. Safeer, J., in Civil Revn. No. 367 of 1971, Himmat v. Union of India, decided on 7-3-1972 (Delhi) holding that 'A careful scrutiny of the provisions starting with Section 18 and ending with S. 26 of the Act leads to a conclusion that once the reference is made under S. 18 of the Act to the Court, the Court is bound in law to dispose it of. The reference is not to be dismissed in default if the applicant, on whose application the reference may have been made by the Collector, fails to appear.'

3. Since a common question of law, namely, applicability of the provisions of O. Xxii and O. 9 of the Code and that of the Limitation Act, 1963, arises in these two revision petitions it would be appropriate to dispose them of by a single judgment.

4. Shri Kesri Singh appearing for the petitioners in Civil Revision No. 271 of 1972 strenuously contended that a perusal of the provisions of Ss. 18 to 26 of the Act succinctly bring out the scope of the proceedings envisaged by the above said sections, unmistakably indicating that on reference application being made a duty is cast on the Collector to furnish a statement to the Court in terms of Section 19, apprising the Court regarding the situation and extent of the land, with particulars of any trees, buildings or standing crops thereon and also give the names of the persons whom he has reason to think interested in such land besides apprising the Court in respect of the amount awarded for damages and. paid or tendered under Sections 5 and 17 or either of them, and the amount of compensation awarded under Section 11. Further, the Collector, it was urged, is required in case if the objection was with respect to the amount of the compensation, to state the grounds on which the amount of compensation was determined. According to sub-section (2) of S. 19, Shri Kesri Singh submitted, it is incumbent on the Collector to attach with the said statement a schedule giving the particulars of the notices served upon and of the statements in writing made or delivered by the parties interested respectively. Such detailed information, the counsel submitted. was required to be given to enable the Court to make the award as envisaged by S. 26. A combined reading of Sections 18 to 26, he contended, shows that on making a reference by the Collector under S. 18 the proceedings in the Court would terminate on making the award and could not be disrupted, at any earlier stage such as by dismissing the reference in default. It was contended that the scheme of the Act clearly indicates that award has to be made on the reference, and the court could not abdicate its duty cast on it by S. 26. It was for this reason, goes the argument, that the Collector has to furnish detailed information in terms of S. 19. That being so, it was submitted, on the person interested in the land dying during the pendency of the reference, the Collector was required to furnish the names and addresses of the legal representatives of the deceased claimant so as to bring up to date the statement furnished lay him to the Court. Shri Kesri Singh accordingly contended that reference proceedings cannot be dismissed for any reason whatsoever but must culminate in the award. In this view of the matter he strongly submitted that the provisions of O. Xxii of the Code and those of the Limitation Act were altogether foreign to the scheme of the Act, being inconsistent with the very nature and scope of the proceedings under the Act. The above submissions were sought to be reinforced on the basis of a Division Bench Judgment of the Madhya Prakash High Court in case, Abdul Karim v. State of Madhya Pradesh, : AIR1964MP171 wherein a similar question arose for consideration as is under consideration the instant revision petition. In that ewe the Bench took the view, that the scope of the proceedings envisaged under the Act indicates that once a reference is made under S. 18, the Court has to make an award under Section 26 and that the proceedings could not be disrupted at any earlier stage. The above view, the Bench observed, was easily discernible from the scope of the enquiry required to be made as contemplated by Ss. 21 to 23 of the Act. The provisions of O. 22 of the Code, the Bench held, in terms apply only to suits and appeals the trial and hearing of which are regulated by the Code; that the term 'suit' means a civil proceeding initiated by the presentation of a plaint. It was accordingly held that it was obvious enough that the reference proceedings under S. 18 of the Act are not suit proceedings in that the reference is not, made by the person interested to the Court but to the Collector asking him to make a reference to the Court. That being so, the Bench held that the reference is made not by the party but by the Collector albeit at the instance of the party. Further that S. 53 of the Act could not be read as creating a fiction for deeming proceedings before the Court under the Act, as proceedings, in any suit. In the premises it was observed that O. 22 could not be applied to proceedings under S. 18 of the Act taking those proceedings as suit proceedings in reality or fictionally under the Code otherwise there would have been no need to create the fiction embodied in S. 26(2) of the Act that an award made by the Court shall be deemed to be a decree within the meaning of S. 2, Clause (2) of the Code. The Bench further observed that the applicability of the Code to the proceedings under S. 18 of the Act could only be by virtue of S, 53 of the Act, subject to the limitation contained in that section. The limitation is that the provisions of the Civil P. C. intended to be applied must not be inconsistent with anything contained in the Act. For the purpose of inconsistency it is not necessary that there should be an express provision to the contrary in the Act itself. It would be enough if the applicability of a provision of the Civil P. C. to any proceedings before the Court under the Act would be incompatible with the nature of the proceedings. Taking the view that a combined reading of the provisions of Ss. 18 to 26 indicates that on a reference being made by the Collector, the Court was required to make an award in terms of S. 26 of the Act, the Bench held that if the party at whose instance reference was made succeeded in showing prima facie that the award was inadequate, then the Government must support the award by producing evidence but if on the other hand he fails to appear in the Court or to produce any evidence the award made by the Collector would stand and that the Court 'then has to make the award made by the Collector as its own award under S. 26.' In that view of the matter the Bench held that there could not be any dismissal or abatement of a reference proceedings and that if the person who moved the reference died and no one came forward to represent him in the Court then it was clearly the duly of the Government to supply the Court the names and addresses of the legal representatives of the deceased claimant to enable the Court to issue fresh notices to them under S. 20 of the Act. In the premises the Bench held that the reference proceedings. not being suit proceedings and the Code being not applicable proprio vigore to those proceedings the question whether the party moving for the reference occupies the position of the plaintiff was not relevant to the question of the applicability of any provision of the Code by virtue of S, 53. Further, that even if the party moving for the reference may be held to be more or less in the position of the plaintiff' or be on the same footing as the plaintiff nonetheless the reference proceedings could not because of that description of the position of the party, become suit proceedings so as to attract the Code in its entirety.

5. Reliance next was placed on the observations of a Division Bench of the Patna High Court in case, Bhadar Munda v. Dhuchua Oraon. : AIR1970Pat209 , holding that once a reference is made under S. 18 of the Act the Court must make an award under S. 26 of the Act irrespective of whether the person at whose instance the reference had been made does or does not appear before the Court or fails to produce evidence in support of his objection and that a reference proceedings cannot abate. The Bench accordingly held that application of O. 22 of the Code is inconsistent with the very nature and scope of the proceedings under S. 18.

6. It is no doubt true that the above two cases relied upon by the learned counsel for the petitioner support the contentions urged by him. However, the reasoning adopted and the conclusions arrived at in the above noted two cases are not warranted by the provisions of Ss, 18 to 26 of the Act. And we say so with utmost respect to the learned Judges deciding the said cases. The decision in case Bhadar Munda : AIR1970Pat209 (supra) proceeded on the basis of the author's commentary at p. 808 in Sanjiva. Row's Law of Land Acquisition Fifth Edition, revised and enlarged by J. P. Singal.

7. According to S. 18(1) any person interested in the land acquired under the provisions of the Act and who has not accepted the award made by the Collector may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. Sub-s. (2) of S. 18 enjoins that the application shall state the grounds on which the objection to the award is taken:

Provided that every such application shall be made,--

(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;

(b) in other cases, within six weeks of the receipt of notice from the Collector under S. 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.

8. The Collector on receipt of such an application and on satisfying himself that the same had been made within the stipulated period shall make the reference to Court complying with the provisions of S. 19. Sub-section (1) of the said section envisages that in making the reference, the Collector shall state, for the information of the Court, in writing under his hand:-

(a) the situation and the extent of the land, with particulars of any trees, buildings or standing crops thereon;

(b) the names of the persons whom he has reason to think interested in such land;

(c) the amount awarded for damages and paid or tendered under Ss. 5 and 17, or either of them, and the amount of compensation awarded under S. 11, and;

(d) if the objection be to the amount of compensation, the grounds on which the amount of compensation was determined.

9. The Collector is required to attach under sub-section (2) of S. 19 of the Act to the said statement a schedule giving the particulars of the notices served upon, and of the statements in writing made or delivered by the parties interested respectively,

10. It will be seen that the information required to be furnished by the Collector to the Court is with a view to enabling the Court to issue notices to the applicant and all persons interested apprising them of the day on which the Court with proceed to determine the objection and directing their appearance before the Court on that day. Section 20 of the Act requires that service of the notice 'I be effected on the applicant and all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded, and, if the objection is in regard to the area of the land or to the amount of the compensation, the Collector.

19

12. Section 19 in terms does not invest the Collector with the status of a prosecutor to prosecute the reference made at the instance of a person interested. The Collector in terms of S. 19 is under no obligation to keep a track of the reference and produce evidence before the Court. This clearly is the duty of the person interested if he feels dissatisfied with the offer made to him by the Collector.

13. Section 21 restricts the scope of the enquiry during the proceedings before the Court to the consideration of the interests of the person affected by the objections. According to S. 22 every proceeding taken by the Court shall take place in the open Court. This section enables all persons entitled to practice in Civil Court in the State to appear, plead and act (as the case may be) in such proceeding.

14. Section 23 enumerates the matters required to be considered by the court in determining the amount of compensation to be awarded for the land acquired under the Act, while S. 24 enumerates the matters which the Court is riot required to take into consideration.

15. Sub-section (1) of S. 25 envisages that when the applicant has made a claim to compensation, pursuant to any notice given under S. 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11. Sub-section (2) stipulates that when the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector while according to sub-section (3) when the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector.

16. Section 26 prescribes the form of award in which the Court is to make the award. Sub-s, (1) thereof prescribes. that the award shall be in writing and signed the Judge, and shall specify the amount awarded under C1. (1) of sub-s. (1) of S. 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts. Sub-section (2) stipulates that every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of S. 2, clause (2), and S. 2, clause (9) respectively, of the Civil P. C.

17. On a plain reading of S. 26, as noted above, it is evident that an award made shall be made in writing and shall be signed by the Judge, specify the amount awarded under clause first of sub-section (1) of S. 23 and also the amounts (if any) respectively awarded under each of the other clauses of the same subsection. The section does not stipulate that once a reference is made at the instance of a person interested who deserts the proceedings or chooses not to prosecute them, the court is bound o make an award. In such an event it will be open to the Court to dismiss the reference application for non-prosecution. Such an order will be in consonance with the provisions of S. 53 of the Act which envisages that 'save in so far as they may be inconsistent with anything contained in this Act, the provision of the Civil P. C. shall apply to all proceedings before the Court under this Act.'

18. A combined reading of Ss. 18 to 26 of the Act, noted above, does not show that any obligation is cast on the Court to make an award on the failure of the applicant, at whose instance reference is made, to adduce evidence to challenge the quantum of compensation offered to him by the Collector or lay a challenge that the measurement taken by the Collector in respect of the land or property acquired was not properly made. In such a case the Court is not to embark upon an enquiry on its own volition nor it is the duty of the Collector to adduce evidence before the Court to justify the award made by him. On a party laying challenge to the award made by the Collector retreating from the reference during the proceedings before the Court, no obligation is cast on the Court to make an award.

19. As noted earlier S. 21 of the Act restricts the scope of the enquiry to a consideration of the interests of the persons at whose behest the Collector makes the reference on their applying to the Collector to make the reference. That being so, it is incumbent on them to pursue their claim as provided under the Act. In the event of the death of a person at whose instance the reference was made the right to continue the reference survives to his legal representatives. A is for the legal representatives if they choose to pursue the reference to apply to the Court for being brought on the record to enable them to prosecute the reference. No obligation is cast on the Collector to furnish the names and addresses of the legal representatives of a deceased claimant to keep the reference alive. The reference is to be an8wered and an award given by the Court only on evidence being produced before it by the claimant who challenges the award given by the Collector.- If no evidence is led the reference has to be declined. The provisions of the Act do not cast any obligation on the Collector to justify his award. It is only when a claimant produces evidence before. The Court and succeeds in showing that the award made by the Collector is inadequate that the Collector is to lead evidence in rebuttal. The Act itself does not prescribe the procedure applicable to the proceedings before the Court while hearing a reference application. See. 53 of the Act, however, make the provisions of the Code applicable to these proceedings. Accordingly the procedure laid down in the Code has to be followed by the Court in deciding a reference application.

20. The procedure laid down in the Code being applicable to these proceedings, it cannot be urged that the applicability of the provisions of Order 9 and Order 22 of the Code are not attracted to the proceedings in the Court.

21. An application under O. 22 requiring the legal representatives to be brought on the record has to be moved within the period prescribed for moving such application. In case the application is not moved within time the reference, would abate and the Court is not obliged to answer such a reference. It is no doubt true that a reference application is not a suit, however because of the applicability of the procedure prescribed in the Code to the proceedings before the Court in such applications, the proceedings before the Court partake the nature of a suit, During the proceedings before the Court in the reference application the claimants will partake the status of plaintiffs while the non-claimants and Collector would occupy the position of defendants,

22. In Ezra v. Secy. of State (1905) 32 Cal 605, the Privy Council observed that when a reference is made to the Civil Court, the applicant has to be regarded as plaintiff and the Government as defendant and that the procedure provided in the Code to suits shall be followed in dealing with applications under S. 18 of the Act. The Privy Council approved the view taken by the Calcutta High Court in Izra v. Secy. Of State (1903) 30 Cal 36.

23. In Egappa Gounder v. Special Tehsildar (Land Acquisition) (1970) 83 Mad Lw 561, noticing the provisions of S. 53 of the Act providing that the provisions of the Code are applicable to the proceedings before the Court in a reference application it was held that when a reference application under S. 18 of the Act is made, the proceedings take the colour of a suit, the claimants figure as plaintiff in the action and the

Government or the acquiring officer as the defendant. It was further held that the burden of proof is generally on the claimants/objectors to substantiate their objections as to compensation and that in the proceedings under S. 18 of the Act it is the objector who is to lead the evidence to show that the compensation awarded was not fair and adequate.

24. On the application of the provisions of Order 22 to the proceedings on a reference application before the Court it is futile to contend that the provisions of the Limitation Act would not be applicable for filing an application under the aforesaid provision of law for bringing on record the legal representatives of the deceased claimant.

25. In Phuman v. State of Punjab (1963) 2 Pun 442, the reference made under S. 18 of the Act was held to have abated on the death of the person interested. The contention that the Court under the provisions of Ss. 21 to 23 and 26 of the Act was bound to make an award and as such the provisions of Order 22 of the Code could not be applied to the proceedings before the Court, was repelled. it was held that under S. 21 of the Act, the scope of the enquiry had been restricted to a consideration of the interests of the persons affected by the objections filed under S. 18 of the Act against the award given by the Collector. It was, thereforee, incur bent on them or their legal representatives to pursue their claim as provided under the Act. It was accordingly held that the reference would be answered and the award would be made by the Court after they had led evidence in support of their objections and their cases are heard. For this purpose, the Bench observed that certain procedure had been prescribed under the Act in that S. 53 of ' the Act makes the provisions of the Code applicable to these proceedings save in so far as they may be inconsistent with anything contained in the Act. That being so the procedure laid down in the Code had to be observed by the Court while deciding these objections. The Bench accordingly held that the provisions of Order 22, Rule 3 would apply, unless it could be shown that they were inconsistent with anything contained in the Act. It was further observed that there is no specific provision in the Act which says that the principles of abatement would not apply to the proceedings before the Court under the Act.

26. The Bench also observed that order 22 of the Code clearly lays down that the legal. representatives of the deceased must be brought on the record within the time limited by law and that in case it is not done so, the result would be that the reference would abate. In such a contingency, it was held, it could not be argued that when a reference had abated, it must be answered by the Court and that under those circumstances it would not be said that provisions of Order 22 of the Code are inconsistent with those of Ss. 20 to 23 and 26 of the Act. Holding that the applications under S. 18 of the Act are in the nature of suits and the applicants there under are to be treated as plaintiffs it was observed that the limitation provided for making the application under Order 22, Rule 3 would apply to these proceedings as well. It was further observed that no doubt that the Limitation Act as such has not been made applicable to the proceedings before the Court under the Act, however since the provisions of the. Code have been made applicable, it is mentioned in Order 22, Rule 3, sub-rule (2) that the application under that rule has to be made within the 'time allowed by law.

27. It would, thereforee, be seen that because of the applicability of Order 22, Rule 3 it was held that the said application was required to be filed within the time permissible for Along such an application under the provisions of the Limitation Act. In our opinion this view is supported in law because of the applicability of the provisions of the Code to the reference proceedings and we express our agreement to it.

28. A Division Bench of this Court in case, Union of India v. Rameshwar Nath (F. A. No. 189 of 1969) decided on 17-8-1971 (Delhi) to which one of us M V. R. Tatachari, J., as he then was) was a party noted with approval the view taken in case Phuman (supra) holding that an appeal against the decree of the Court upon a reference under S. 18 of the Act being an appeal under the Code, the provisions of Order 22 apply to such art appeal and that 'the provisions of Limitation Act would also apply to such an appeal.

29. In Alihusain Abbasbhai v. Collector, Panch Mahals, : AIR1967Guj118 , while holding that the nature of the reference under S. 18 was not. such that it must necessarily result in the making of an award by the Court; that reference was not different from an ordinary, civil proceeding in which the applicant who is in the position of a plaintiff object's to the amount of compensation offered in, the award of the Collector and claims he additional compensation, on the failure of the applicant to appear at the hearing of the reference, the same was liable to be dismisses by force of Order 9, Rule 8 made applicable by S. 53 of, the Act like any other civil. proceedings; and that in the same way if the applicant did not produce evidence in support of the objection, the reference must be dismissed just as any other civil proceeding would be dismissed for want of evidence in support of, the claim, it was observed that if the reference could be dismissed for default of Appearance of the Applicant or for want of evidence before the Court, there was no reason why Order 22, Rule 3 should not be applicable to the reference. It was. accordingly held that provisions contained in both the sub-rules of Order 22, R. 3 can be made applicable without creating any inconsistency or disharmony and that it must, thereforee, be concluded that provisions of the said Rule apply to a reference under S. 18 of the Act. The Court, however, held that though S. 53 makes the provisions of the Code applicable to a reference it does not make the provisions of the Limitation. Act applicable to such a reference and that , no time is limited by law for making of an application by the heirs of a deceased applicant for bringing themselves on record in the reference. This view proceeded on the basis that the word , suit in S. 3 of the Limitation Act means a civil proceeding instituted by the presentation of a plaint and the word 'Plaintiff, in Art. 17,6 of the Limitation Act, 1908, must mean a plaintiff in such a suit and cannot include an applicant in a reference.

30. We are in respectful agreement with the view that the provisions of O. 22 and O. 9 are applicable to the proceedings in Court on a reference application but we express our inability to accept that no time is limited by law for making an application under O. 22, R. 3 and we say so with respect for the reasons stated by us in an earlier part of the judgment. This view was dissented from by the Bench of this Court in, case Union of India v. Rameshwar Nath (F, A. No. 189 of 1869, D/- 11-8-1971) (Delhi) (supra).

31. In this view of the matter the opinion of a learned single judge of this Court in case Union of India v. Sanwalia 2nd (1975) 1 Delhi 837, following the ratio of case Alihusain, Abhasbhai : AIR1967Guj118 . (supra) that an application under O.22 R.3 can , made at Any time and that the reference will not abate, but if the application for substitution is not made, Within a reasonable time, the reference may be dismissed for non prosecution and should it reject the application, then the Court will proceed to decide the reference as if the deceased person were no 1onger a party before it does not lay down correct law, since a reference- application can be dismissed in, default for non-prosecution, the view taken, by the learned single Judge in Civil Revn. No. 367 of 1971 (Delhi) (Himmat) (supra) as well does, not lay down correct law.

32. The cases relied upon by the learned counsel for the petitioner are of no assistance to the petitioner as they were decided on their own merits. The learned counsel placed reliance on case State Bank of Hyderabad v. Vasudev Anant, : (1969)IILLJ713SC and Town Municipal Council Athani v. Presiding Officer, Labour Court, Hublk Air 1969 Sc 1334 wherein it was observed that Article 137 of thti'Liqi1tation Act, 1963, applies to applications presented to Courts governed by the. Code and that Industrial Tribunals or a Labour Court dealing with applications or references under the Industrial Disputes Act are not Courts and they. are in no way governed by, the Code. It was in that context that it was observed that no limitation is prescribed for filing an application under S. 33C(2) of the Industrial Disputes Act. The observations of the Court in Nita Nand v. Life Insurance Corporation of India, : (1969)IILLJ711SC that it is only applications to Courts that are intended to be covered under Art. 137 of the Limitation Act 1963 do not advance the case of the petitioners.

33. Lastly reliance was placed on case Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramways Co. Ltd. in which it was observed that the suit ordinarily means a civil proceeding instituted by presentation of a plaint that the applications of the liquidators would not be 'suit' within the meaning of 9 3 of the Limitation Act, 1908; and that applications by the Liquidators could not be dismissed as being a suit instituted' after the prescribed period of limitation. The ratio of this case is again not applicable in the instant case.

34. This brings us to the merits in the two revision petitions, In Civil Revn, No. 271 of 1972 claimant Suit. Sarjo was stated to have died on 8th April, 1971. Application under O. 22, R. 3 was made on 12th Oct. 1971, i.e. after more than 90 days of the death of Smt. Sarjo, No ground having been alleged, as noted by the learned Additional District Judge Delhi, for condoning the delay in not having the said application within the period of 90 days which in fact was filed late by about 96 days, was rightly rejected by the Court having not been made within time According to Sub rule (2) of R. 9 of O. 22 abatement could be set aside if the legal representatives of Smt. Sarjo had proved that they were prevented by sufficient cause from continuing the suit. That having not been done, mere filing of the application would not per se entitle the legal representatives to an automatic order of setting aside the abatement in the circumstances, the order dated 4th May, 1972, passed by Shri G. R Luthre, Additional District judge, dismissing the application of the legal representatives, is confirmed. Civil Revision Petition No. 271 of 1972 is dismissed leaving the parties, however, to bear their own costs.

35. In Civil Revision Petition No. 454 of 1972 the order dismissing the reference application in default was set aside on the ground that the reference could not be dismissed in default This being not the correct position in law, the revision petition is accepted. Order dated 29th July, 1972, passed by Shri J. A Jain, Additional District Judge, is set aside. The case is remanded to the Court with a direction that the application of respondents seeking setting aside of the order dismissing the reference application in default be disposed of in accordance with law, parties are left to bear their own costs of this petition.

36. Order accordingly.


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