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Anant Ram Thakur Vs. Deputy Commissioner (Collector) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberC.M.P. No. 157 of 1971 in C.W.P. No. 9 of 1971
Judge
Reported inAIR1972HP15
ActsCode of Civil Procedure (CPC) , 1908 - Section 141 - Order 22, Rule 3; ;Constitution of India - Article 226
AppellantAnant Ram Thakur
RespondentDeputy Commissioner (Collector) and ors.
Appellant Advocate H.S. Thakur, Adv.
Respondent Advocate Chhabil Dass and; C.L. Kapila, Advs.
DispositionPetition allowed
Cases Referred(Bhagwan Singh v. Addl. Director of Consolidation). It
Excerpt:
- .....contended by them that the provisions of the civil procedure code (order 22) are not applicable to writ proceedings. in short it is stated that the legal representative cannot be brought on record.4. all that is to be seen is whether the right, which entitled the deceased to invoke the jurisdiction of the high court, has or has not survived to the legal representative who claims to prosecute the petition. the right to 'nautor' land is a right to property which is heritable. if the 'nautor' grant is maintained, the present petitioner chander sen thakur will step in the shoes of the grantee. he would enjov the right under the nautor land. therefore, it is abundantly clear that the right to sue, if i take the analogy from order 22, rule 3 of the civil procedure code, has survived in favour.....
Judgment:
ORDER

D.B. Lal, J.

1. Anant Ram Thakur filed a writ petition under Article 226, read with Article 227 of the Constitution of India. The respondents are: the Revenue Minister Himachal Pradesh, the Commissioner (Revenue), the Secretary (Revenue), the Deputy Commissioner and out Shri Khub Ram. It is contended that the petitioner was granted certain land under 'Nautor' in the year 1966. The petitioner accordingly went in possession and planted an orchard. It is stated that the petitioner has invested near about Rs. 1 lac in planting the orchard. The respondents, according to the petitioner being governed by political motives cancelled the 'Nautor' in 1970 and the petitioner was likely to be deprived of the land. Accordingly he filed this writ petition.

2. On 16-1-1971, the petitioner has died and it is stated that he has left a 'Will' in which he has made his son Chandra Sen Thakur to be his sole heir to this property. Now Chander Sen Thakur has applied for substitution as legal representative of the deceased petitioner.

3. The respondents contend, that right to sue has not survived in favour of Chander Sen Thakur because, according to them, a personal relief was claimed by the petitioner which has extinguished after his death. It is then contended by them that the provisions of the Civil Procedure Code (Order 22) are not applicable to writ proceedings. In short it is stated that the legal representative cannot be brought on record.

4. All that is to be seen is whether the right, which entitled the deceased to invoke the jurisdiction of the High Court, has or has not survived to the legal representative who claims to prosecute the petition. The right to 'nautor' land is a right to property which is heritable. If the 'nautor' grant is maintained, the present petitioner Chander Sen Thakur will step in the shoes of the grantee. He would enjov the right under the nautor land. Therefore, it is abundantly clear that the right to sue, if I take the analogy from Order 22, Rule 3 of the Civil Procedure Code, has survived in favour of the legal representative. An authority for this proposition can be found in (19671 69 Pun LR (D) 19 K.L. Bhasali v. Chief Controller of Imports & Exports.

5. It is contended that Section 141 of the Civil Procedure Code will not help the petitioner because the High Court cannot be stated to have a civil jurisdiction which within the meaning of that Section is ordinary civil jurisdiction. While exercising its power under Article 226, the High Court has extraordinary jurisdiction and so as contended. Section 141 Civil Procedure Code will not apply. However, there are several authorities in which it has been held that in a civil writ petition the provisions of Civil Procedure code can be imported provided such provisions are not contrary to the Rules made by the High Court applicable to its writ jurisdiction. In (1965) 67 Pun LR 576 (Bachittar Singh v. K. SectionSethi), the provisions of Civil Procedure Code relating to amendment of pleadings were made applicable to a civil writ petition. In AIR 1967 All 334 (Asst. District Panchayat Officer. Rae Bareli v. Jai Narayan), it was held that the provisions of the Code would apply to the proceeding under Article 226, except to the extent to which their applicability may be affected by the Rules of Court or any special law or Rule applicable to these proceedings. In AIR 1967 Cal 275 (Krishnalal Sadhu v. State of West Bengal) the question arose regarding the applicability of Section 141 of the Civil Procedure Code. It was held that the said Section is directly attracted to an application under Article 226 of the Constitution and so much, provisions of the Code as can be suitably applied to writ proceedings are applicable to such proceedings. That case related to the applicability of Order 22 of the Code, as is being done in the instant case.

6. In this connection reference need be made to AIR 1968 Punj and Har 360 (Bhagwan Singh v. Addl. Director of Consolidation). It was held that the provisions of the Civil Procedure Code although may not govern writ proceedings lest its elaborate and technical Rules may defeat them because of procedural delays, however the principles of the code as distinguished from technical provisions can be made applicable on grounds of justice, equity and good conscience. The learned counsel for the respondents brought to my notice the decision reported in AIR 1965 All 517 (Khuriawala Buckles Manufacturing Co-v. Commr. Sales Tax). It was held in the circumstances of that case, that Section 141 Civil Procedure Code was not applicable to a writ jurisdiction. In that case an attempt was made to consolidate several petitions, although these were not inter-connected and related to distinct causes of action by importing the provisions of Order 2. Rule 3 of the Civil Procedure Code. It was held that the petitions could not be consolidated as they related to different taxing statutes although the assessee was the same. In that context, it was observed that Section 141 of the Civil Procedure Code will not be of any assistance to the petitioners. With great respect to this decision. I still consider that the correct law is laid down in AIR 1968 Puni and Har 360 where it was observed that the elaborate and technical Rules of the Civil Procedure Code may not apply on the strength of Section 141 Civil Procedure Code, vet the principles in general as laid down in the Code would be applicable on the grounds of justice, equity and good conscience. This proposition is further elaborated in the case AIR 1967 All 334 where an exception has been made in favour of the Rules of the Court or any special law or Rule applicable to these proceedings.

7. In this view of the matter, the principle laid down in Order 22, Rule 3 Civil Procedure Code can be made applicable and because the right to seek remedy by way of writ, which existed in favour of the deceased petitioner, has survived in favour of the present petitioner, the latter can be substituted as legal representative and should be permitted to proceed with the petition.

8. Accordingly I allow the petition for substitution of Chander Sen Thakur. He is to be made party in place of the deceased petitioner and the cause-title is to be amended accordingly.


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