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1953 DIGILAW 2 (RAJ)

Babulal v. Mannilal

1953-01-05

DAVE, RANAWAT, SHARMA

body1953
Ranawat J,—This case has been referred to a larger Bench by a Division Bench of this Court. A revision application was filed in the court of the Ijlas-i-Khas of the former Dholpur State by the plaintiffs Babulal and Pannalal against the judgment of the then Dholpur High Court dated the 3rd September 1940. The case remained pending until the State of Dholpur merged into the Matsya Union and then to the State of Rajasthan. This case eventually came on the file of this Court in accordance with the provisions of the Rajasthan Appeals and Petitions (Discontinuance) Ordinance No. 40 of 1949 as amended by Ordinance No. 12 of 1950. During the pendency of this revision application the defendant Mannilal, opposite party, died on the 19th January 1951. An application for substitution of the names of his legal representatives was made by the petitioners on the 28th April 1952. A notice was issued to the opposite party to show cause why substitution of the names of the legal representatives a$ prayed for by the petitioners be not allowed, and an objection was taken that the application had been moved with considerable delay and should not now be allowed. 2. In a similar case delay was condoned under sec. 5 of the Indian Limitation Act by this Court on the 22nd January 1952 (Ramsarup and others vs. Kanhaiyalal and others-Misc. Appn- No. 68 of 1951). In another case of Pt. Kanhaiyalal vs. Mangalsingh (1) (Civil Revision No. 13 of 1951) it was held on the 2nd of September 1952 by this Court that Order 22 C.P.C. and Art. 176 of the Limitation Act have no application to the cases of revision petitions and if a petitioner is diligent his application for substitution of the names can be entertained even after the expiry of 90 days from the date of the death of a party. As there was a conflict between the two decisions, this case was referred to a larger Bench. 3. In this application, it has been urged that the petitioners even though they knew the date of the death of Mannilal long before they made this application for substitution of the names did not know that the case had come on the file of the High Court. 3. In this application, it has been urged that the petitioners even though they knew the date of the death of Mannilal long before they made this application for substitution of the names did not know that the case had come on the file of the High Court. They were therefore not in a position to make an application to this Court before they received a notice regarding the pendency of this case in this Court. It has further been argued that the petitioners could not have known about the receipt of the record of this case in this Court and they could not therefore have moved an application earlier. 4. The learned counsel on the opposite side on the other hand has contended that both the parties are next-door neighbours and the petitioners had known the fact of the death of the opposite party long before they moved this application. From the Rajasthan Appeals and Petitions (Discontinuance) Ordinance of 1949 as amended by Ordinance No. 12 of 1950 the petitioners should have known that the case was to be heard and decided by the High Court. They should therefore have come to this Court without any delay and since the petitioners are guilty of negligence their application should not now be allowed. 5. We have considered the points raised before us very carefully. The case of Ramsarup and others vs. Kanhaiyalal and others is clearly distinguishable. It was a case of an application on behalf of the minors who could not be supposed to have had the necessary knowledge for making an application for substitution of the names within reasonable time. In that case the judgment proceeds on the assumption of the applicability of Order 22 C.P.C. and Art. 176 of the Indian Limitation Act to the case of revision petitions. However, this point has not been discussed. Probably the point had not been raised before the court whether Order 22 C.P.C. and Art. 176 of the Limitation Act were applicable to such cases or not. We are of the opinion that Order 22 C.P.C. applies to the case of suits and by virtue of Rule 11 also to the cases of appeals. It does not govern the cases of revision applications. We are of the opinion that Order 22 C.P.C. applies to the case of suits and by virtue of Rule 11 also to the cases of appeals. It does not govern the cases of revision applications. Sec, 141 C.P.C. also does not make the provisions of Order 22 C.P.C. applicable to the cases of revision as it applies only to the cases of proceedings of original nature. Consequently Art. 176 of the Indian Limitation Act also does not apply to such cases. This question has been thoroughly considered in the judgment of this Court in Pandit Kanhaiyalal vs. Mangalsingh (1) (1953 RLW 89:) referred to above and we agree with the principle laid down therein. Revision is a discretionary remedy and unless a party is diligent this Court would not exercise its discretionary powers in his favour. Whether a party is diligent or not is a question of fact to be determined by the court in each case according to the circumstances and the facts of that case. In the present case, the application has been made after about 16 months and the explanation for coming to the court after such a long time is that the petitioner did not know about the pendency of this case in this Court. The petitioner is to be presumed to know this from the Rajasthan Appeals and Petitions (Discontinuance) Ordinance of 1949 as amended by Ordinance No. 12 of 1950 which had been promulgated and published long before the opposite party died. There appears no reason why the petitioner did not know about the pendency of this case in this court. In view of the facts of this case we think that the petitioner is guilty of negligence and we would not like to exercise our discretionary powers in his favour when he is himself to blame for negligence to such a large extent. The facts of this case are not much different from the facts of Pt. Kanhaiydlal vs. Mangalsinghs (1) (1953 R.L.W. 89.) case referred to above and in that case also a similar view was taken by this Court. 6. This application is therefore dismissed and consequently the revision application will also fail and stand dismissed.