Nand Kishore v. Deputy Director (Consolidation) — 1968 DIGILAW 292 (ALL)

JUDGMENT Jagdish Sahai, J. - Our brother Rajeshwari Prasad has referred to us the following question of law for determination: Whether in view of the amended Rule 38 A in Ch. VIII of the Rules of the Court, it is necessary that an application for substitution in a case under the writ jurisdiction of this Court be made within a period of 90 days or not and whether in the event of default in doing that, the writ petition should be deemed to have abated?. 2. The following rule has been added as Rule 38-A in Ch. VIII of the Rules of Court: 38-A. The provision contained in Rules 1 to 6 and 9 of Order XXII and in Order XXXII of the CPC shall, so far as may be and with necessary modifications and adaptations, apply to special appeals, writ petitions Under Article 226 of the Constitution and tax Acts References falling Under Ch. IX, XXII and XXVII of these Rules. 3. In the instant case writ petition No. 1416 of 1963 was filed by one Nand Kishore. He died on 16-10-1965 while the writ petition was still pending decision by this Court. On 5-5-1966, Sheopujan Tewari, Muneshwar Dev Tewari and Kaliash Tewari filed an application praying that the name of the sole Petitioner, Nand Kishore, be expunged from the array of the parties and in his place, the names of the Applicants aforesaid be substituted. 4. Sheopujan Tewari and Muneswar Dev Tewari claimed to be the sons of the deceased, Nand Kishore and Kailash Tewari claimed to be a grand son of Nand Kishore, being the son of a predeceased son, Kaushal Chand Tewari. 5. When the substitution application came up for hearing before Rajeshwari Prasad, J., an objection was taken on behalf of the Respondents in the writ petition to the effect that the application has been filed beyond time: Reliance was placed upon Rule 38-A already extracted above. 6. It was contended before Rajeshwari Prasad, J. on behalf of Sheopujan Tewari, Muneshwar Dev Tewari and Kailash Tewari by Mr. S.K. Verma that inasmuch as Rule 38-A of the Rules of Court does not make the provisions of the Limitation Act including the Articles providing periods of limitation applicable to a writ proceeding, there is a lacuna in the rule and for that reason the application made by Sheopujan. S.K. Verma that inasmuch as Rule 38-A of the Rules of Court does not make the provisions of the Limitation Act including the Articles providing periods of limitation applicable to a writ proceeding, there is a lacuna in the rule and for that reason the application made by Sheopujan. Tewari, Muneshwar Dev Tewari and Kailash Tewari cannot be dismissed. It was urged that Article 226 of the Constitution of India is not hedged in by any condition with the result that to any matter in a writ petition, be it the main petition itself or any proceedings arising out of it or arising in it, notions of limitation cannot be applied. Our brother Rajeshwari Prasad, therefore, referred the case to a larger Bench and that is how the matter has come before us. 7. Mr. S.K. Verma has made the following four submissions before us: 1. That inasmuch as Rule 38-A does not specifically provide a period of limitation or does it refer to any of the provisions of the Indian Limitation Act, an application Under Order XXII can be filed at any time and cannot be dismissed on the ground that it is barred by limitation. 2. That the duty of bringing the necessary parties on the record is that of the Court and even if the Petitioner may not have made the substitution application in time provided by the Limitation Act, he cannot be penalised for it because no party can be penalised for the fault of the Court. 3. That in any case a Petitioner in a writ petition is not a necessary party and for that reason even if the heirs are not substituted, the petition can go on. 4. That the case is fully governed by the decision in the Union of India v. Seth Shanti Sarup and Ors. AIR 1966 All. 530 and that being a Division Bench decision, this Bench cannot go behind it and if it chooses to differ, it should refer the case to a larger Bench. 8. We proceed to consider the submissions seriatim. 1. Mr. Verma's contention is not that Rule 38-A is void or unconstitutional. That rule clearly provides that the provisions contained in Rules 1 to 6 and 9 of Order XXII shall apply to the proceedings in a writ petition. 8. We proceed to consider the submissions seriatim. 1. Mr. Verma's contention is not that Rule 38-A is void or unconstitutional. That rule clearly provides that the provisions contained in Rules 1 to 6 and 9 of Order XXII shall apply to the proceedings in a writ petition. It is conceded that in case of the death of a party or parties during the pendency of a writ petition an application or applications for substitution should be made. All that is contended is that it can be made at any time as there is no period of limitation provided for making it in Rule 38-A. This rule makes the provisions of Order XXII, Rules 1 to 6 and 9 applicable to proceedings arising out of a writ petition. Order XXII, Rule 3, CPC reads: (1) Where one of two or more Plaintiffs dies and the right to sue does not survive to the surviving Plaintiff or Plaintiffs alone or a sole Plaintiff or sole surviving Plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased Plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law (Italicised by us) no application is made under Sub-rule (1) the suit shall abate so far as the deceased Plaintiff is concerned and on the application of the Defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased Plaintiff. Clause (2) of Rule 3 of Order XXII, CPC which has admittedly been made applicable to a proceeding arising out of a writ petition, clearly provides that where within the "time limited by law" no application is made, the suit shall abate. "Time limited by law" admittedly means time limited by the Indian Limitation Act. Learned Counsel, however, contends that inasmuch as a writ petition is filed under a provision contained in the Constitution and not under the CPC and the writ petition itself is not subject to any limitation, any proceeding arising in the writ petition must also be held to be free from any restriction of limitation. We are unable to agree. Under Article 225 of the Constitution the Court has jurisdiction to frame rules for regulating its business. We are unable to agree. Under Article 225 of the Constitution the Court has jurisdiction to frame rules for regulating its business. The Court, therefore, has framed Rule 38-A under that provision and if the effect of that rule is to make the provision of the Limitation Act applicable to substitution proceeding arising out of or in a writ petition that rule of limitation will govern the substitution application. We must therefore find out whether our Rule 38 A requires that; a substitution application must be made in the period provided by the Indian Limitation Act. Rule 38 A refers to Order XXI, Rule 3(2) CPC also. Beyond that it provides for no other period of limitation. In our opinion it is implicit in Rule 38A that the period of limitation within which a substitution application under that rule should be made is the one provided by the Indian Limitation Act. When Rule 38 A refers to Order XXII, Rule 3(2), it clearly adopts the rule of limitation envisaged by that rule i.e. the (sic) provided by the Limitation Act. This is, in our opinion, the clear meaning and intention of Rule 38-A. Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, AIR 1953 SC 394 is of some help to us. In that case Shiv Bahadur Singh was tried under the Vindhya Pradesh Ordinance. He was acquitted by the trial court i.e. the Special Judge. The State Government filed an appeal u/s 417, Code of Criminal Procedure and the question was whether the appeal was competent. Two provisions, that is, Sections 5(2) and 6 of the Vindhya Pradesh Criminal Law Amendment (Special Court) Ordinance No. 5 of 1949 were considered relevant for determining that question. The provisions read: 5(2). Save as provided in Sub-section (1) the provisions of the Code of Criminal Procedure, as adapted in Vindhya Pradesh, shall, so far as they are not inconsistent with this Ordinance, apply to the proceedings of a Special Court and for the purposes of the said provisions, the court of the Special Judge shall be deemed to be a Court of Sessions trying cases without a Jury or without the aid of Assessors and a person conducting a prosecution before a Special Judge shall be deemed to be a Public Prosecutor. 6. 6. "The High Court may, subject to the provisions of Section 7 regarding transfer of cases, exercise, so far as they may be applicable, all the powers conferred by Chaps. 31 and 32, Code of Criminal Procedure, as adapted in Vindhya Pradesh, on a High Court as if the Court of the Special Judge were a Court of Sessions trying cases without a Jury within the local limits of the High Court's jurisdiction. The Supreme Court observed as follows: The argument of Learned Counsel for the Appellants is that Section 6 above quoted provides only for the powers of the High Court on appeal preferred to it, but that there is no provision at all conferring on an aggrieved party a right of appeal from the judgment and order of the special Judge to the High Court. It is contended that the absence of a right of appeal may be a lacuna, but that inasmuch as it has not been expressly provided, it cannot be implied from the fact that a provision has been made for the exercise of powers by the appellate Court. It is conceded that this line of argument, if accepted, would result in there being no appeal even as against a conviction. But it is urged that it is the inevitable consequence of the lacuna. It appears, however, on careful consideration that no such lacuna exists and that Sub-section (2) of Section 5, Vindhya Pradesh Ordinance reasonably construed is an express provision conferring a right of appeal to the aggrieved party, whether an accused or the State, against the judgment of the Special Judge. The section, in terms, says that the provisions of the Code of Criminal Procedure as adapted and in so far as they are not inconsistent with the Ordinance shall apply to the proceedings of a special court and that for the purposes of the 'said' provisions (that is, the adapted provisions which are not inconsistent and hence apply) the court of a special Judge is to be deemed a Court of Session. The provisions of the Code of Criminal Procedure relating to the right of appeal are Sections 410 and 417 and there is nothing in the Vindhya Pradesh Ordinance which is inconsistent with the application of these two sections to the proceedings of a special court treated as a Court of Session for the purpose. The provisions of the Code of Criminal Procedure relating to the right of appeal are Sections 410 and 417 and there is nothing in the Vindhya Pradesh Ordinance which is inconsistent with the application of these two sections to the proceedings of a special court treated as a Court of Session for the purpose. It follows that the said proceedings are subject to appeal. But it is urged that the provisions of the Code of Criminal Procedure that are attracted by Sub-section (2) of Section 5, Vindhya Pradesh Ordinance, to the proceedings of a special court are only those provisions which relate to the 'procedure' before the special court itself in respect of the proceedings before it and not all the provisions which are connected with or related to those proceedings. There is, in our opinion, no warrant for putting such a limited construction on this sub-section. The only limitation on the application of the provisions of the Code of Criminal Procedure to the proceedings of the special court is the one arising from the existence of any inconsistent provisions in the Ordinance and not with reference to the conduct of the proceedings before that very court. Once the special court is to be deemed a court of sessions the normal right of appeal provided by Section 410 or Section 417, as the case may be, must be taken to have been expressly provided by reference and not as arising by mere implication. Learned Counsel strongly relied on Attorney-General v. Herman James Sillem (1864) 10 HLC 704 (A) to show that a provision such as the above was meant only to regulate the proceedings in a case within the four walls or limits of the court. The statutory provision which came up for construction in that case was, however, very differently worded and was meant to t regulate "the process, practice and mode of pleading" i.e., the procedure 'in' the court and "the proceedings" of the court. While, no doubt, it is not permissible to supply a clear and obvious lacuna in a statute and imply a right of appeal it is incumbent on the court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application. The construction urged for the Appellant renders Section 6 futile and leaves even a convicted person without appeal. The construction urged for the Appellant renders Section 6 futile and leaves even a convicted person without appeal. We have no hesitation in rejecting it. Rule 38A was added to the rules of the Court with a view to make it incumbent on parties to make substitution applications in cases of death of a Petitioner or a Respondent. In order to achieve that object we must read Rule 38-A in a liberal manner. When it adopts Order XXII, Rules 1 to 6 and 9 it also at least by implication adopts the period of limitation which is applicable to proceedings under those rules. This, in our opinion, is implicit in Rule 38 A. If we take the view that even though an application for substitution had to be made in this case, there was no period of limitation provided for it, we would be frustrating the purpose of Rule 38-A which cannot be done--(See Commissioner of Income Tax, Delhi Vs. S. Teja Singh, AIR 1959 SC 352 . Any construction to the contrary would render the provisions of Rule 38-A ineffective and meaningless and render them unadministerable. In order to save the rule from being rendered wholly ineffective, we can even read some words in it which would provide for the period of limitation as given by the Limitation Act.--See Ramaswamy Nadar Vs. The State of Madras, AIR 1958 SC 56 . We, therefore, hold that a substitution application even in a writ petition must be made within ninty days i.e. the period provided by the Limitation Act. 2. It may be that in a sense it is a duty of the court to see that the necessary parties are on the record, but the court can only direct either of the parties to do it. The primary duty to implead necessary and proper parties is of the parties themselves. 3. We are unable to agree with the Learned Counsel that a Petitioner is not a necessary party in a writ proceeding. In fact the Petitioner invokes the jurisdiction of the Court. If the argument that in the present case it is not necessary to have representatives of the deceased Petitioner is accepted, the result would be that, if the writ petition is allowed, we would be passing an order in favour of a party, who is already dead. The submission, in our opinion, is not even statable. 4. If the argument that in the present case it is not necessary to have representatives of the deceased Petitioner is accepted, the result would be that, if the writ petition is allowed, we would be passing an order in favour of a party, who is already dead. The submission, in our opinion, is not even statable. 4. We have carefully perused the decision in The Union of India v. Seth Shanti Sarup and Ors. (supra). In out judgment the case is clearly distinguishable. It does not deal with the interpretation of Rule 38-A. 9. Our answer to the question referred to us, therefore, is in the affirmative, in favour of the Respondents and against the Petitioner. We answer the question by saying that the application for substitution in a writ petition should be made within 90 days arid if not made within that period and the cause of action does not survive in favour of the remaining Petitioners, it will be deemed to have abated.