Skip to content


Pandit Kanhiyalal Vs. Mangal Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B.C. Revision No. 13 of 1951
Judge
Reported inAIR1953Raj69
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 141 - Order 22; Limitation Act, 1908 - Schedule - Article 176
AppellantPandit Kanhiyalal
RespondentMangal Singh
Appellant Advocate S.B.L. Saxena, Adv.
Respondent Advocate Madan Gopal Kamthan, Adv.
DispositionApplication dismissed
Cases ReferredKhudabux v. Mahanand Tewari
Excerpt:
- - ',that even though order 22 is not applicable to a case in revision, yet a litigant is expected to prosecute his case with due diligence and if he does not take steps for substitution of the names of the legal representatives of a deceased party within reasonable time he should be deemed to have failed to prosecute his case with due diligence and the proceedings should be considered to have abated on this ground. ), the application for revision abates in the sense that the proceedings shall cease, unless good cause for the delay is shown......articles of the limitation act. as neither order 22, civil p. c. nor the limitation act applies to civil revision petitions there can be no question of abatement of such petitions.'3. it appears that there is conflict of opinion between the calcutta high court on one side and the high courts of madras, allahabad, and lahore on the other. the calcutta decision in -- 'anandamoyi dasi v. rudra mahanti', which has been referred to by the learned counsel of the opposite side, has been based on a previous judgment of that court in -- 'deosaranlal v. syedunnisa begum', 16 ic 58. it may be pointed out that the judgment in -- 'deosaranlal v. syedunnisa begum', on which the judgment in -- 'anandamoyi dasi v. rudra mahanti' is based does not deal with the question of applicability of order 22,.....
Judgment:

Ranawat, J.

1. A revision application was filed by Kanhiyalal in Ijlas Khas, Dholpur State, against the decision of the then Dholpur High Court, dated the 14th December 1942 in its revisional jurisdiction. The High Court refused to interfere in the judgment and decree of the Civil Judge, Dholpur, by which an injunction was granted in favour of the plaintiff for removal of a latrine. After the merger of the Dholpur State into Matsya Union and after the integration of the Matsya Union in the Rajasthan State this revision application came on the file of this court by virtue of the Raj asthan Appeals and Petitions (Discontinuance) Ordinance, No. XL of 1949, as amended by Ordinance XII of 1950). The petitioner has now filed an application on the 19th of November 1951 stating that Mangalsingh who wasthe plaintiff in the suit had died on the 4th of December 1950. He has prayed that the sons of Mangal Singh may be brought on the record of this case. A rule was issued to the opposite party to show cause why the names of the heirs of Mangal Singh be not substituted in its place. An application has been moved on behalf of the heirs of Mangal Singh opposing the petition on the ground that it has been made with delay.

Mr. Madan Gopal Kamthan, who has appeared on behalf of the opposite party, has contended that as Order 22, Civil Procedure Code also applies to revision applications, the petition for substitution of the names of the heirs of Mangal Singh should be deemed to be barred by limitation. He has put his reliance on the judgments of -- Anandamoyi Dasi v. Rudra Mahanti', 21 IC 407 and -- 'Bhajjulal and Ors. v. Bechey Singh and Ors.', AIR 1950 All 665. The Calcutta High Court in -- 'Anandamoyi Dasi v. Rudra Mahanti', has held that Order 22 applies to cases in revision also. The Allahabad High Court on the contrary has decided in -- 'Bhajjulal and Ors. v. Bechey Singh and Ors.', that even though Order 22 is not applicable to a case in revision, yet a litigant is expected to prosecute his case with due diligence and if he does not take steps for substitution of the names of the legal representatives of a deceased party within reasonable time he should be deemed to have failed to prosecute his case with due diligence and the proceedings should be considered to have abated on this ground.

The learned counsel on the opposite side has argued that Order 22, Civil P. C. has no application to cases in revision and that as there is no time fixed for the filing of such applications, it is open to a party to move the court at his convenience. He has relied on -- 'Mohd. Saadat Ali Khan v. Administrator, Corporation of City of Lahore', AIR 1949 Lah 186 and -- 'Manikam & Ors. v. MR. RM. Ramanathan Chettiar & Ors.', AIR 1949 Mad 435. According to him as Order 22 has no application to such cases a revision application should not be dismissed on the ground of abatement. -- 'Mohd. Saadat Ali Khan v. Administrator, Corporation of City of Lahore', (3), is a Full Bench case and in the judgment it has been observed as follows:

'Order 22, Rule 3, Civil P. C. is not applicable to revisions. It cannot be read in conjunction with Section 141 as Section 141 is so drafted as to enable a court to apply the procedure in regard to suits to such prpceedings as are in 'pari materia' with suits and thus original in character. A revision is very much unlike a suit. The procedure provided for the suits would be mostly inapt and inappropriate to proceedings in revision. Further, Article 176, Limitation Act, cannot be made applicable it a revision. Hence where a party going in revision dies pending the revision petition and an application is made by his legal representatives to be brought on record after the expiry of the period of 90 days the petition for revision cannot be dismissed on the ground of abatement.'

2. In -- 'Manik and Ors. v. MR. RM. Ramanathan Chettiar and Ors.', (4), the following observations have been made:

'There can be no question of abatement but for the combined application of the provisions of Order 22 Rules 3 and 4 and the material articles of the Limitation Act. As neither Order 22, Civil P. C. nor the Limitation Act applies to Civil Revision petitions there can be no question of abatement of such petitions.'

3. It appears that there is conflict of opinion between the Calcutta High Court on one side and the High Courts of Madras, Allahabad, and Lahore on the other. The Calcutta decision in -- 'Anandamoyi Dasi v. Rudra Mahanti', which has been referred to by the learned counsel of the opposite side, has been based on a previous judgment of that court in -- 'Deosaranlal v. Syedunnisa Begum', 16 IC 58. It may be pointed out that the judgment in -- 'Deosaranlal v. Syedunnisa Begum', on which the judgment in -- 'Anandamoyi Dasi v. Rudra Mahanti' is based does not deal with the question of applicability of Order 22, C.P.C. to revisions. The Calcutta view therefore does not appear to be correct. As Section 141, C.P.C. does not app]y to the case in revision, Order 22 cannot be held applicable to revisions. A revision application is not in the nature of original proceedings and the procedure provided in C.P.C. for suits, therefore, cannot be made applicable to revisions. Article 176 of the Limitation Act also cannot be made applicable to the case of a revision application. It is, therefore, evident that Order 22 C.P.C., is not applicable to cases in revision. The Allahabad High Court has held that Order 22 is not applicable to such cases. The logic of the decision of that court is that a litigant is expected to be diligent and if he is not diligent his application should not be considered in revision, because revisional powers are discretionary. A party applying after 50 days for substitution of the names of the legal representatives was held to be not diligent enough to get a relief in revision. In -- 'Bhajjulal and Ors. v. Bacheysingh and Ors.' (2) a decision of the Oudh Court in -- 'Khudabux v. Mahanand Tewari' A.I.R. 1948 Oudh 84 was followed. The observations in the judgment of the Oudh Chief Court which had been reproduced in the Allahabad decision are as follows:

'Order 22, Civil P. C. has no application to an application for substitution of the names of the legal representatives of a deceased party in a revision application and there is no rule of limitation governing an application for substitution of parties in Civil revisions. But there is no duty cast upon the High Court once it admits a revision application to call for the record of the case and to consider it, irrespective of whether the applicant does or does not carry out his duties as an ordinary litigant with respect to the application. If, therefore, after the admission of the application for revision, a party dies and no application for substitution of the names of his legal representatives is presented within a reasonable time (which in the case of such an application is the time mentioned in Order 22, Civil P.C.), the application for revision abates in the sense that the proceedings shall cease, unless good cause for the delay is shown.'

4. The Madras and Lahore High Courts are a bit more liberal and they have entertained petitions for the substitution of names of legal representatives in revisions even after 90 days on the ground that there is no bar to the entertainment of such petitions. In our opinion it cannot be ignored that a litigant is expected to be diligent with the- prosecution of his case. He should, therefore, come to the Court within reasonable time in order that he may get a remedy which is discretionary and which he is not entitled to claim as a matter of right. What is reasonable time is a question of fact and it would depend on the facts of each case. No hard and fast rule can be laid down as regards the degree of diligence to be required in such cases.

In the present case, Mangalsingh is said to have died on the 4th of December 1950 and the application was moved for the substitution of the names of the legal representatives on the 19th of November 1951. The petitioner came to know about the death of Mangalsingh without any delay. The only explanation offered for coming late to the court is that it was not known to the petitioner as to where his case had been pending. It is said that he received a notice from this court on the 23rd of Oct. 1950 and he was prompt enough in making an application on the 19th of the succeeding month. It may be pointed out that by the Rajasthan Appeals and Petitions (Discontinuance) Ordinance No. XII of 1950 it has been laid down that all cases which were pending in the Ijlas Khas of any covenanting State would be brought on the file of this Court.

If the petitioner had read this Ordinance with care there could have remained no doubt in his mind as to the court where his case should have been considered to be pending, after the promulgation of that Ordinance. The explanation offered by the petitioner therefore loses all its force when it is viewed with Ordinance No. XII of 1950 which had been published on the 25th of January 1950 in the Rajas-than Gazette. There is no other explanation for the delay and we feel that under the circumstances of this case the petitioner un-necessarily waited for a little more than ten months in coming to this court with an application for substitution. The delay is inordinate and in our opinion the petitioner is guilty pf negligence. Revision is a discretionary remedy and we are not prepared to exercise our discretion in favour of a person who is very negligent.

5. The application for substitution is, therefore dismissed and the case consequently would abate.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //