Sudhindra Mohan Guha, J.
1. The present revision arises out of an application by the State of West Bengal for substitution of the wife, son and daughter of the sole respondent Dwijendra Chandra Sen after setting aside abatement on condoning the delay.
2. On or about 27th June, 1964, the First Appeal No. 154 of 1965 was presented in this Court along with twelve other analogous Land Acquisition appeals being Nos. F.A. 151 to 163 of 1965. The appeal in question arose out of L.A. Case No. 315 of 1963 and was preferred against the Judgment and decree dated 31-3-1964 passed by Sri S. K. Bhattacherjee, District Judge, Burdwan.
3. On 18-2-1966 a Rule was issued by this Court and their Lordships directed the present petitioner to deposit the decretal amount in the Court below within six weeks in default the rule would stand dismissed. On 28-7-1966 their Lordships were pleased to discharge the rule.
4. From the Lawzima report dated 6-10-1977 which was communicated subsequently to the office of the Legal Remembrance by the Advocate for the State and from that report the appellant for the first time came to know that the sole respondent was dead.
5. Thereafter, the Collector of Burdwan, was requested to make an enquiry and to furnish the relevant particulars, that is, the exact date of death, name and address of the legal heirs etc. by a memo dated 15-11-1977. The memo of the said Collector dated 9-2-1978 was received by the office of the Legal Remembrance on 13-2-1978 wherefrom it transpired that the sole respondent died on 3-12-1966 leaving behind the present opposite parties, namely, (1) Sm. Renuka Sen (Widow), (2) Tarunendra Sen (Son) and (3) Sm. Rama Majumdar (Daughter).
6. It is accordingly submitted that unless these persons are substituted and/ or added in the place and stead of the deceased sole respondent Dwijendra Chandra Sen the appeal cannot be proceeded with and for which it is necessary to substitute the aforesaid heirs otherwise the State would suffer irreparable loss and injury and the appeal would become infructuous.
7. As for condonation of delay it is submitted that there being no laches and/or negligence on the part of the, State the delay in making this application for substitution may be condoned and the heirs of the sole respondent may be substituted in the place and stead of the deceased respondent after setting aside abatement as the petitioner for the first time came to know the fact of death of sole respondent from the note of the learned Advocate and the date of death and the names of the heirs from the report of the L. A. Collector, Burdwan dated 9-2-1978.
8. This application is opposed by the opposite parties on the ground that the application is hopelessly barred by limitation and there is no sufficient ground for condonation of delay.
9. It is contended on behalf of the opposite parties that the State cannot be in a privileged position and as the provisions of the Civil Procedure Code as well as the Limitation Act apply in a proceeding under Section 18 of the Land Acquisition Act, the condonation of delay in no circumstances should be allowed, unless the State succeeds to establish sufficient cause for not making the application within the prescribed period.
10. The learned Advocate for the petitioner on the other hand, contends that to a reference proceeding under Section 18 the provision of Order 22 of Civil P. C. does not apply and as such there can be no dismissal or abatement of an appeal againstthe proceeding under Section 18 of the L.A. Act. The learned Advocate for the opposite parties with reference to the decision in Collector of Dacca v. Golam Kuddus Chaudhuri, reported in ILR (1937) 1 Cal 699 at p. 703: (AIR 1936 Cal 688) contends that every award under the L. A. Act was deemed to be a decree and the statement of the grounds of every such award, a judgment within the meaning of Clause (2) of Section 2 and Clause (9) of Section 2 respectively. It is further contended by him that all the provisions of the Civil P.C. are made applicable to proceedings before the Court under the L.A. Act except In cases where there may be inconsistency. Reliance is placed on the decision in the case of Bhandi Singh v. Ranadhin Rai reported in (1905) 2 Cal LJ 359 at p. 368. He also argues that an appeal shall lie to the High Court from the award or from any part of the award of the case in any proceeding under the Act,
11. The learned Advocate for the petitioner on the other hand, in support of his contention argues that the provisions of the Civil P.C. would not apply to an appeal out of a proceeding under the Land Acquisition Act. Reliance is placed on the decision in Abdul Karim v. State of Madhya Pradesh reported in : AIR1964MP171 .
12. By virtue of Section 53 of the Land Acquisition Act the provisions of Civil P.C, are applicable to all proceedings before the Court under the Act unless such provision in the Code is inconsistent with anything contained in the Act. Any provision in the Land Acquisition Act would not appear directly to be inconsistent with the principle of substitution under Order 22 of the Civil Procedure Code. The reference under that Act cannot be regarded in any way different from an ordinary Civil Proceeding. In this view of the matter, a reference under Section 18 of the Land Acquisition Act or an appeal arising out of an award would be attracted by Order 22 of the Civil Procedure Code. The Gujarat High Court in the case of Alihusain Abbasbhai v. Collector, Panch Mahals, reported in : AIR1967Guj118 , had occasion to consider the case reported in : AIR1964MP171 . Bhagwati, J. this Lordship as he then was) was unable to accept the decision as correct. That decision, according to him, proceeds on the hypothesis that once a reference is made by the Collector, it must of necessity terminate in an award of the Court and on that hypothesis it works outthe conclusion that even if the applicant does not appear 6r produce evidence in support of the objection, the reference cannot be dismissed but an award must be made even though such award be in the same terms as the award of the Collector and equally if the applicant dies and his heirs do not make an application to bring themselves on record, the reference cannot abate, but the Collector must supply the names of the heirs to the Court and the Court must give notice of the reference to the heirs and then proceed to make an award, which in the absence of evidence in support of the objection may be in the same terms as the award of the Collector. This conclusion is clearly not justified by the scheme and language of the Sections. But though the provisions of the Civil Procedure Code were found to be applicable in a proceeding under Section 18 of the Land Acquisition Act. His Lordship held further that the provisions of the Limitation Act would not be applicable to a reference proceeding under Section 18 of the Act and as such there would (be) no time limit for bringing on record the legal representatives of an applicant. In this case His Lordship observed that the applicant died during the pendency of the reference, the petitioners as the heirs and legal representatives of the applicant made an application for bringing themselves on record under Order 22 Rule 3 Sub-rule (1). So, the question is whether they were bound to make such application within any particular period. The controversy between the parties, therefore, centered round the question as to whether any time was limited by law for the purpose of making an application by the heirs of a deceased applicant in a pending reference for bringing themselves on record. Art, 176 of the Indian Limitation Act, 1908 provided a period of 90 days from the date of the death of the deceased applicant for making an application (Corresponding provision is in Article 120 of the Limitation Act, 1963). According to His Lordship the applicant in a reference proceeding is not a 'plaintiff' and the proceeding is not a 'suit' within the meaning of Article 176 of the Limitation Act (1908), since a 'suit' should be commenced with the presentation of a 'plaint'. Section 53 of the Land Acquisition Act, in the opinion of His Lordship does not make the provisions of the Limitation Act applicable. Hence, Article 176 of the Limitation Act is not applicable to a reference proceeding under Section 18 of the Act. His Lordship also refers to the decision of thePrivy Council in Hansraj Gupta v. Dehra Dun Mussourie Electric Tramway Co. Ltd. reported in AIR 1933 P.C. 63. The Privy Council observed therein that the word 'suit' in Section 3 of the Limitation Act ordinarily means a Civil Proceeding instituted for the presentation of a plaint. As a proceeding under Section 18 of the Land Acquisition Act does not commence with the presentation of a plaint the provision of Limitation Act, in the opinion of His Lordship will not be attracted to the provision of substitution. His Lordship further observes that the statutory fiction is a limited one and it has merely the effect of converting an award into a decree for the purpose of Section 2(2) of the Civil P. C. As a matter of that statutory fiction clearly postulates that a reference is not a 'suit', for if it were a suit, the award would straightway have been a decree and there would have been no need to enact the statutory fiction.
13. But we think for our present purpose we need not enter into the controversy whether the provision of Limitation Act would be applicable to an appeal out of an application under Section 18 of the Land Acquisition Act for the purpose of substitution. Moreover the matter has been set at rest by introduction of Order 22 Rule 4(4) and Rule 4(5) by the Amendment Act 1976. Such provisions were inserted to provide that the plaintiff should have an opportunity to pray for an extension of the time limit for the substitution of the legal representative of the deceased defendant, if he can establish that he was ignorant of the death of the defendant. The plaintiff under Order 22 Rule 4(5)(b) can take aid of Section 5 of the Limitation Act for the extension of time for such substitution. So the relevant provision of Limitation Act has been incorporated therein.
14. The State in this case, in our opinion, has been successful to make out sufficient ground for condonation of delay. There was sufficient case for not making the application within the specified period. It transpired from record that the respondent Dwijendra Chandra Sen died on 3-12-1966 that is, soon after the discharge of the rule on 28-7-1966. In connection of the Lawzima report dated 6-10-1977 the office of the Legal Remembrancer for the first time came to know about the death of the sole respondent. Thereafter, on 15-11-1977 an enquiry was made to the Collector, Burdwan, Memo dated 9-2-1978 supplied the necessary particulars sought for. In thecircumstances it was quite natural for the State of West Bengal to be ignorant of the death of the sole respondent, and as such could not make an application for the substitution of the legal representatives of the respondent under Order 22 Rule 4 within the period prescribed for the purpose.
15. Thus, on consideration of the entire facts and circumstances of the case and having due regard to the fact of ignorance as stated by the State of West Bengal, we are of the view that the application under Section 5 of the Limitation Act should be allowed.
16. In the result, the Rule is made absolute and the Order of abatement is set aside. The opposite party be brought on record as the legal heirs of the deceased respondent in F. A. No. 154 of 1965. There will be no order as to Costs.
N.C. Mukherji, J.