Allowed

Suraj Nath and 8 Others v. the Board of Revenue at Allahabad and Another

Allahabad HC3 Jul 2023CMRA/127/2023

Case brief

AI extract

What is this about?

This court allowed a review application challenging an order that dismissed a writ petition as abated due to delayed substitution of a deceased respondent's heirs. The court rejected the argument for automatic abatement, citing Supreme Court precedents that require a reasonable explanation for delay rather than automatic dismissal.

What did the court decide?

The review application was allowed, and the previous order dated 13.2.2023 is set aside for reconsideration along with pending applications.

Suraj Nath and 8 Others Vs the Board of… — Civil Procedure and Limitation | Allahabad HC (2023)

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Reserved

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Neutral Citation No. - 2023:AHC:129865

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Court No. - 1

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Case :- CIVIL MISC REVIEW APPLICATION No. - 127 of 2023

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Applicant :- Suraj Nath And 8 Others Opposite Party :- The Board Of Revenue At Allahabad And Another Counsel for Applicant :- Rahul Mishra

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Hon'ble Jayant Banerji,J.

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The aforesaid review application is filed seeking review of the judgment and order dated 13.2.2023, passed in Writ-B No. 12865 of 1983.

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The order dated 13.2.2023 is quoted below:-

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"Heard Sri Saroj Kumar Yadav, learned counsel holding brief of Sri Rahul Mishra, learned counsel for the petitioners.

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Delay Condonation Application No. 1 of 2018 and Substitution Application No. 2 of 2018 along with Delay Condonation Application No. 10 of 2023 and Substitution Application No. 11 of 2023 .

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It is evident from perusal of the aforesaid substitution application of 2023 that the sole private respondent No.2, Mst. Anupa, widow of Arjun died in the year 1990. More than three decades have passed but her heirs have been sought to be substituted by the petitioner at this stage.

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The petitioner No.1, Surya Nath, died on 22.1.2018, and no attempt was made by any of the petitioners to substitute the heirs of the respondent No.2. The present writ petition already stands abated. There is no application for setting aside abatement."

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Sri Rahul Mishra, learned counsel for the applicants has referred to the provisions of Section 141 of the Code of Civil Procedure, 1908¹ in which, by an amendment brought by Act No. 104 of 1976, an explanation was added. Section 141 CPC now reads as follows:-

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“ 141. Miscellaneous proceedings.- The procedure provided in this 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.

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Explanation:- In this section expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution".

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1 CPC

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The contention of the learned counsel for the applicants is that after insertion of the explanation to Section 141 CPC, the procedure provided in CPC with regard to suits are required to be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction, but the expression "proceedings", which, though would include the proceedings under Order IX CPC, but would not include any proceeding under Article 226 of the Constitution of India.

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It is urged that the aforesaid amendment brought in the year 1976 by an Act of Parliament in Section 141 CPC would override the provisions of Chapter VIII Rule 38-A of the Allahabad High Court Rules to the extent of the inconsistency. Rule 38-A of Chapter VIII of the Allahabad High Court Rules provides, inter alia, for the application of Rules 1 to 6 and 9 under Order XXII CPC to special appeals, writ petitions under Article 226 of the Constitution and Tax Acts references and revisions. It is stated that since the Allahabad High Court Rules is subordinate legislation, therefore, pursuant to 1976 amendment in Section 141 of the CPC, the provisions of Order XXII CPC would not apply to writ proceedings and as such, the proceedings would not abate. It is urged that the provisions of the Limitation Act, 1963 are not applicable in writ proceedings and as such, it will not apply to the application filed in the writ petition. In support of his contention, learned counsel for the applicants has placed reliance upon the judgements of Puran Singh and others Vs. State of Punjab and others² , Ram Kishan Vs. DDC and others³ and Ram Sumiran and others Vs. DDC and others⁴ .

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Sri Manish Goyal, learned Additional Advocate General appearing on behalf of the State has referred to at length to the judgment of the Supreme Court in Puran Singh (supra) and has stated that the reasonable time and sufficient cause in respect of the application for substitution would have to be seen. It is contended that all aspects in this regard have

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2 (1996) 2 SCC 205

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3 2014 (5) ADJ 571

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4 AIR 1985 SC 606

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been dealt with in the judgment of Supreme Court in Puran Singh. It is stated that so far as Article 120 of the Limitation Act, 1963 is concerned, in an application filed by the applicants for condonation of delay, the explanation is required to be seen and ignorance of knowledge of death of the deceased is required to be scrutinized by the Court. It is contended that the provisions under Order 22 Rule 10A CPC is relevant in cases filed by impersonal bodies like State, in which ignorance would be a relevant fact.

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Sri Manish Goyal, has pointed out that the aforesaid writ petition was dismissed in default on 18.9.2014 and the restoration application was filed in the year 2018 which was allowed by the order dated 3.12.2022 and the writ petition was restored to its original number. It is contended that though the provisions of Limitation Act, 1963 would not be strictly applicable in the cases in writ proceeding, however, there has to be rational and reasonable explanation for the delay in filing of the substitution application which is required to be duly explained by the applicant. However, it is contended by Sri Goyal that given the observation of the Supreme Court in Puran Singh , there would not be any automatic abatement of writ proceeding and, therefore, the order under review dated 13.2.2023 may require review.

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A perusal of the judgment in Puran Singh reveals that the Supreme Court has held that the provisions contained in Order 22 of the CPC would not be applicable per se to writ proceedings. It was held that if the procedure prescribed in respect of a suit in the CPC are made applicable to writ proceedings then in many cases it may frustrate the exercise of extraordinary powers by the High Court under Article 226 and 227 of the Constitution. While observing that if the right of the petitioner to pursue the remedy survives even after the death of the original respondents to the writ petition, then on the same principle even the right to contest that claim survives on the part of the legal representative of the deceased respondent. The Supreme Court observed that in such a situation, after the

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death of the respondent if the right to sue survives against the legal representative of such respondent, then the petitioner has to substitute the legal representative of such respondent before the writ petition can proceed and can be heard and disposed of. However, the Supreme Court went on to observe that petitioner has to take steps for substitution of legal representative within a reasonable time. The Supreme Court observed as follows:-

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"8............It need not be impressed that it will be unreasonable on the part of the court to implead the legal representative of the deceased respondent after lapse of several months or years and then to direct them to contest the claim of the petitioner merely on the ground that after the death of the original respondent the right, title or the interest of such respondent has devolved on them.

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As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent. However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative . This power has to be exercised on well-known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be. At the same time the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final ."

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(emphasis supplied)

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A coordinate Bench of this Court in the case of Ram Kishan (supra ) has observed that the writ petitions are pending in this Court for several decades because of which, there was no interaction between the advocates and their clients for several years. The Court held as follows:-

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"10.............. Some time one litigant has to engage several counsels due to their death one by one and some time two three generations die during pendency and several substitution applications have to be filed. Thus long pendency has created an abnormal situation, as such, due to lack of interaction, neither the counsel could know about the death of the client nor the client could know about the death of their advocates. In such circumstances, in the interest of justice, the Court is required to condone delay invoking its discretion."

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In view of the law laid down by the Supreme Court that there is no automatic abatement of the writ proceedings, the order dated 13.2.2023 ought to be reviewed and, therefore, the review application is allowed.

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List the writ petition alongwith pending applications of 2018 and 2023 that were considered by this Court while passing the order dated 13.2.2023 for consideration in the week commencing 10.7.2023 .

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Order Date :- 3.7.2023 sfa/

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( Jayant Banerji, J)

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Digitally signed by :- SYED FAHEEM AHMAD High Court of Judicature at Allahabad

Suraj Nath and 8 Others v. the Board of Revenue at Allahabad and Another

Case brief

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Suraj Nath and 8 Others v. the Board of Revenue at Allahabad and Another

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