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Ram Kishore Rastogi Vs. the Appellate Officer, Jaisalmer House - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal No. 95 of 1869 and Civil Writ Appeal No. 292D of 1960
Judge
Reported inILR1969Delhi989
ActsCode of Civil Procedure (CPC), 1908 - Sections 141 - Order 22, Rule 4(3); Limitation Act, 1963 - Schedule - Article 120; Constitution of India -Article 226
AppellantRam Kishore Rastogi
RespondentThe Appellate Officer, Jaisalmer House
Advocates: Sultan Yar Khan,; D.R. Prem and; D.D. Sharma, Advs
Cases Referred(see Vekata Subbu v. D.T.S.
Excerpt:
civil p.c., order 22, rule 4(3) - applicability of, to writ proceedings--inapplicable--civil p.c. section 141, limitation act, articles 120 and 121 and constitution of india, article 226.; that the law of abatement as envisaged in rule 4(3) of order xxii of the code of civil procedure does rito apply in all its rigidity to the writ proceedings. ; that assuming that the proceedings in writ petition under article 226 of the constitution are civil proceeding in the exercise of the special original jurisdiction or extraordinary original jurisdiction of high court, and also granting that section <141 of the code of civil procedure applies to these proceedings so far as it can be made applicable, it is nto enough to attract the provisions of articles 120 and 121 of the limitation act,..........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 nto survived to the legal representative who claims to prosecute the petition.'(8) the above passage fully supports the argument of mr. pram. mr. sultan yar khan, learned counsel for the respondents, however submitted that the learned judge had nto given any reason for the view taken by him. the judgment could nto thereforee he treated as authority for the proposition laid down therein. he relied on the other hand on a bench decision of the high court of gujarat in ibrahimbhai kurimbhai and others. v. state of gujarat where one of the points decided by the lamed judges was whether the provisions of order xxii of the code of civil procedure.....
Judgment:

Hardayal Hardy, J.

(1) This is an application under Order Xxii Rule 4(3) and Section 151 of the Code of Civil Procedure in which the prayer of the applicants who are respondents 3 to 5 in a petiton under Articles 226 and 227 of the Consitution (being Civil Writ Petition No. 292-D of 1960) is that the said writ petition has abated on account of the failure of the petitioner to bring on record the legal representatives of Dr. Mohammed Azim Ahmed Siddiquee who was respondent No. 2 in the petition and died at Lucknow on 7th June, 1968 leaving behind five sons, a widow and three daughters as his heirs.

(2) The petitioner denied in his written reply all previous knowledge of the death of Dr. Siddiquee and about his having left any heirs, but submitted that the he had no objection to the alleged heirs being substituted in place of the deceased. He admitted that no application for substitution of the legal representatives was made by him within the period of ninety days. His defense however was that the provisions of Order Xxii Rule 4 did nto apply to petitions under Article 226 of the Constitution.

(3) In the course of his arguments before me, Mr. D.R. Prem, learned counsel for the petitioner, did nto dispute the fact that Dr. Siddiquee died on 7th June 1968. He also did nto dispute that the deceased had left behind the persons named in the respondents' application as his legal heirs. His argument however was that the law of abatement did nto apply to petitions under Article 226 of the Constitution. It was urged that in a petition for grant of a writ of certiorari the inferior Court or Tribunal whose order was challenged as illegal or void, was the only necessary party because certiorari goes to record and is nto concerned with the parties other than the inferior Court or Tribunal. The death of a respondent who was nto a necessa party had thereforee no effect on the petitioner's right to continue the proceedings against the other parties who were already on record without the legal representatives of the deceased respondent being substituted in his place.

(4) The other argument of Mr. Prem was that in any event the respondents originally imp leaded in the writ petition including Dr. Siddiquee, had expressed their intention before the Competent Officer appointed under the Evacuee Property (Separation) Act, 1951 that they were nto interested in the property in dispute and as such the said officer was fully justified in selling the property by public auction. In the circumstances, the absence of Dr. Siddiquee's heirs from the record could nto affect the validity of the sale when the deceased himself was nto a necessary party to the proceedings.

(5) I shall first take up the argument about Dr. Siddquee nto being a necessary party to the proceedings in this Court. The circumstances in which the petitioner filed his writ petition are that Dr. Mohammad Azim Siddiquee, Jamalur-Rehman, Akhtar-uz Zaman and Sabira Bano who were imp leaded as respondents, were non-evacuee co-shares in a composite property which was sold by the Competent Officer to the petitioner Shri R.K.. Rastogi in a public auction held by him on 1st July 1958. The non-evacuee co-shares filed objections against the sale but the same were dismissed on 14-9-1959. Against that decision the objectors filed an appeal betore the Appellate Officer who accepted the objections and ordered the sale to be set aside. R.K. Rastogi thereupon filed a petition in the High Court under Articles 226 and 227 Constitution challenging the legality of the aforesaid order. During the pendency of the petition. Dr. Siddiquee died on 7th June 1968. The petitoner R.K. Rastogi did nto take any steps to bring his legal representatives on record. On 1-4-1969 the surviving respondents filed the present application praying that the writ petition be dismissed on the ground that it had abated.

(6) It cannto be disputed that the deceased was a co-sharer in the property with respect to which the Appellate Officer had made an order in his favor nor can it be disputed that on his death his interest devolved on his legal heirs, each heir having a well-defined share according to the Muslim Law of inheritance. The right to sue thereforee did nto survive after the death of Dr. Siddiquee against the surviving respondents alone. The appellate Officer having decided the case in favor of the respondents they could nto be deprived of the rights vested in them unless they were arrayed before this Court. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue Bihar and another it was held by the Supreme Court that in a writ of certiorari nto only the tribunal or authority whose order is sought to be quashed but also the parties in whose favor the said order is issued are necessary parties. Dr. Siddiquee was thereforee a necessary party in whose absence no effective order could be made by this Court. The other contention that the respondents had expressed their intention that they were nto interested in the property was nto raised before the Appellate Officer and is at any rate a matter relating to the merits of the controvercy in the writ petition. The argument of the learned counsel about the respondents nto being necessary parties to the proceedings must thereforee fail and is rejected.

(7) The other argument of the lamed counsel about the law of abatement nto being applicable to petitions under Article 226 of the Constitution may now be noticed. In support of his argument Mr. Prem relied on a judgment of Narula J. of the Punjab High Court in K. L. Basali v. The Chief Controller of Imports & Exports , where the learned Judge was dealing with a petition under Article 226 of the Constitution for grant of a writ in the nature of certiorari to quash the orders of the Chief Controller of Imports and Exports, New Delhi. The petitioner in that case died during the pendency of the petition whereupon an application was filed by some of his heirs to be brought on record to prosecute the petition. On an objection being raised on behalf of the respondents that the name of one of the heirs of the original petitioner had nto been mentioned in the application and that the application had also been filed beyond the period of limitation prescribed for such application, the lamed Judge 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 nto apply to petitions 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 nto survived to the legal representative who claims to prosecute the petition.'

(8) The above passage fully supports the argument of Mr. Pram. Mr. Sultan Yar Khan, learned counsel for the respondents, however submitted that the learned Judge had nto given any reason for the view taken by him. the judgment could nto thereforee he treated as authority for the proposition laid down therein. He relied on the other hand on a Bench decision of the High Court of Gujarat in Ibrahimbhai Kurimbhai and others. v. State of Gujarat where one of the points decided by the lamed Judges was whether the provisions of Order Xxii of the Code of Civil Procedure relating to the abatement of proceedings applied to an application under Article 226 of the Constitution. It was held that the High Court issuing a writ of certiorari is a court of civil jurisdiction within the meaning of the provision contained in section 141 Civi Procedure Code and thereforee the provision regarding abatement of suits under rules I & 2 of Order Xxii of the Code applied to writ peroceedings in the High Court. An examination of the judgment however shows that the question of limitation which has an important hearing on the question of abatement was neither raised before the learned judges nor discussed by them.

(9) There can be no doubt that jurisdiction to issue a writ under Article 226 of the Constitution is original jurisdiction as distinguished from appellate or revisional jurisdiction of the High Court. This is settled by the judgment of the Supreme Court in the State of Uttar Pradesh and others v. Dr. ViJay Anand Maharaj where Subba Rao J. who spoke for the Court, after referring to the judgments of Madras, Calcutta and Andhra Pradesh High Courts and to a decision of the Judicial Committee of the Privy Council in Hamid Hassan v. Banwari Lal Roy (5) :-

'ITis, thereforee, clear from the nature of the power conferred under Art, 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Art. 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall nto be confused with the ordinary civil jurisdiction of the High Court.'

(10) The question raised before a Division Bench of the Punjab High Court in Sona Ram Ranga Ram and others v. Central Govrnment through the Secretary, Ministry of Rehabilitation Government of India, New Delhi was about. the nature of the proceedings under Article 226 of the Constitution P, C. Pandit J. with whom S. B. Capoor J. agreed, observed :-

'IN my opinion, if in a petition under Article 226 civil rights are involved, then the proceedings would be civil proceedings, but, on the other hand, if the proceedings do nto involve such rights, then they cannto be termed assuch. It follows, thereforee, that in writ petitions, where civil rights are involved, the proceedings are in the nature of a suit and .by virtue of 'the provisions of Section 141, the procedure provided in the Code in regard to writs shall apply, as far as it can be made applicable. In this view of mine, I am supported by a Bench decision of the Andhra Pradesh High Court, consisting of Subba Rao C. J. and Shrinivasachari J. in Annam Adinarayana v. State of Andhra Pradesh wherein it was held that an aplication under Article 226 of the Constitution of India was a proceeding in a Court of civil jurisdiction and section 141 of the Code was, thereforee, directly, attracted.'

(11) The view taken by a Special Bench of Calcutta High Court in Jay Engineering Works Ltd. and others v. State of West Bengal and others also appears to be the same. In that case B. C. Misra J. while concurring with the other leared Judges constituting the special Bench, directly dealt with the challenge thrown by the learned Advocate General that writs under Article 226 were issued by the Court in its extra-ordinary jurisdiction and thereforee an application for a writ could nto be held to be a proceeding in exercise of the Civil jurisdiction of the court under section 141 of the Code of Civil Procedure. In support of his argument, the Advocate General relied on two decisions of Madras High Court and one decision of Andhra Pradesh High Court : (i) Ganapati Nadar and Sons v. State of Madras (ii) Rainbow Dyeing Factory Salem v. Industrial Tribunal and (iii) Inre Gopalakrishnarao AIR 1957 AP 88. The argument was rejected by the learned Judge who held that- very question had been considered in Narayan Row v. Ishwar Lal wherein was held that there was no ground for restricting the expression 'civil proceeding' only to those proceedings which arose out of civil suits or proceedings and for excluding from the purview of 'civil proceeding' the writ petitions tried by the High Court in exercise of its jurisdiction under Article 226 of the Constitution. It was on this view of the matter that a joint petition by several petitioners was held by the learned Judges to have been properly filed, having regard to the provisions of rule I of Order I of the Code of Civil Procedure.

(12) But does this answer the question posed by Mr. Prem I grant that the proceedings' before me are civil proceedings in exercised of the special original jurisdiction or extra-ordinary original jurisdiction of this Court. I also grant that section 141 of the Code of Civil Procedure applies to these proceedings as far as it can be made applicable. But is that enough to attract the provisions of Articles 120 and 121 of the Limitation Act which provide for a period of limitation within which applications for bringing on record the legal representatives of a deceased plaintiff or appellant or of a deceased defendant or respondent and for setting aside an order of abatement are required to be filed. It is well known that there is no rule of law laying down any period of limitation for filing of a petition under Article 226 of the Constitution. All that the courts have said is that an application by way of a writ of certiorari should be filed within a reasonable time from the date of the order which the applicant seeks to be quashed. The High Court of Andhra Pradesh, for instance, regards a period of six months as reasonable (see Vekata Subbu v. D.T.S. (Traffic) Vijayawada followed in Edara Venkaiah and others v. The Commissioner of Income-fax Department, Hyderabad but in extra-ordinary circumstances the High Court may in its dicrection excuse the delay.

(13) Mr. Prem invited my attention to the rules framed by this Court for issue of writs of Mandamus, Prohibition, quo Warranto and Certiorari under Article 226 of the Constitution Chapter 4-F(b) of the Rules and Orders of the High Court Volume V) and submitted that there is no provision in those rules prescribing any period of limitation either for filing of such petitions or for bringing the legal representatives of the deceased petitioners or respondents on record.

(14) The question for consideration thereforee is that when no period of limitation has been prescribed either by the Constitution or under the rules framed by this Court, is it permissible to import the period of limitation prescribed in the Limitation Act by the mechanism of section 141 of the Code of Civil Procedure If proceedings under Article 226 of the Constitution are civil proceedings and they are so, as I have already said, it was open to this Court to have made rules under section 122 of the Code of Civil Procedure to regulate its own procedure. These rules could easily provide for the period during which the applicant should approach the Court against the order of the inferior Tribunal or Court sought to be quashed and the period during which the legal representatives of the deceased applicant or respondent must be brought on record and the consequences resulting from non-compliance with the rules. This Court nto having framed such rules. It is reasonable to assume that it did nto intend to fetter its discretion by any such rules in the exercise of its extraordinary powers under Article 226 of the Constitution. It is nto as if section 141 is in absolute terms. What it says is that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. Now in the first place, it is difficult to hold that the provisions of Limitation Act are 'procedure provided in the Code in regard to suits'. Those provisions do apply to suits but they do so by their own force and nto as 'procedure provided in the Code'. Secondly, even if the provisions regarding the necessity for bringing on record the legal representatives of a deceased plaintiff or defendant or applicant or respondent as contained in Order Xxii of the Code can be made applicallble to petitions under Article 226 of the Constitution I fail to see any warrant in law for applying the penalty provided for in Rule 4(3) of that Order. It is well established that the object of certiorari and prohibition is to keep inferior tribunals and courts within the hounds of their jurisdiction. Similarly the primary object of a writ of quo warranto is to prevent usurpation of public offices by persons nto entitled thereto. In all such cases, besides the personal interest of the applicant there is also involved a certain amount of public interest which has a direct impact on the High Court's duty to up-hold the rule of law. If an order of the inferior tribunal is void or without jurisdiction and the case is brought before the court by a person who is personally aggrieved by order and his right to sue survives to his legal representatives, I see no reason why the technical rules of limitation should stand in the way of justice being done by this Court because the legal representatives have nto been vigilant enough to bring themselves on record within ninety days of the death of the origignal applicant. If the orgiginal applicant could move the the Court in the first instance, without the law of limitation barring his access to it, what justification can there be lo preclude his legal representatives from doing so. This argument will apply with still greater force when the case is nto one relating to the death of the applicant hut to that of one of the respondents.

(15) The Case of Ibrahimbhai decided by Gujarat High Court was under Order Xxii Rules I and 2, it related to the death of the original applicant and the question of abatement of proceedings was considered in that context. The case may thereforee be treated as authority on its own facts. The case before me is one under Rule 4 of Order Xxii where some of the respondents in whose favor the Appellate Officer had passed the impugned order are already on record. It is only Dr. Siddiquee who was respondent No. 2 who has died. Although he had a well defined share in the properly forming the subject matter of dispute, his interest had nto yet been separated from that of other co-sharers. His presence before the Court was thereforee necessary and if the provisions relating to abatement apply the case may nto be one of partial abatement only. It however cannto be gain said that there is no conflict of interest between the respondents who are already on record and the deceased respondent. They could thereforee be expected nto only to look after their own interest but also the interest of the legal representatives of the deceased. That apart, the petitioner has shown his willingness to have the legal representatives of Dr. Siddiquee on record and has stated that the default in doing so earlier was due to his ignorance about the death of the deceased. The main question in the writ petition is whethter the order of the Appellate Officer is one with jurisdiction. As I am of the opinion that the law of abatement as invisaged in rule 4(3) of Order Xii does nto apply in all its rigidity to these proceedings, the respondent's prayer about dismissal of the writ petition is rejected and the legal representatives of the deceased respondent No.2 whose name are mentioned in the application are ordered to be substituted for the deceased. In the peculiar circumstances of this case there will be no order as to costs. The respondents including the legal representatives of the deceased now brought on record should file their written statements in the Registry by 22nd September, 1969. Advance copies of the written statements should be supplied to the counsel for the petitioner seven days before that date so as to enable him to file his rejoinder if any, by the same date. This being an old case of 1960 the writ petition should be listed for hearing on 10-10-1969.


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