JAMNADAS JOITARAM v. DEVJI BHANA — 1971 DIGILAW 54 (GUJ)

D. A. DESAI, J. ( 1 ) THE two petitions arise out of two separate applications filed by deceased Jamnadas Joitaram Prajapati a certified landlord for recovering possession of lands from his excluded tenants who are respondents in these petitions. Two applications bearing No. Nagarwada 27 and 28 were made under sec. 32t of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act) in respect of land bearing S. No. 43/7 in case No. 27 and land bearing S. No. 50 in case No. 28 on 29th March 1962. When these applications were pending before the Mamlatdar Jamnadas died on 5th February 1964. One Shrikant Jamnadas who is the petitioner in these petitions claiming to be the heir and legal representative of deceased Jamnadas made an application according to him on 9th March 1964 for bringing him on record a fact disputed by the respondents. Before that date the Mamlatdar dismissed both the applications by his order dated 27th February 1964 observing that the certificate of exemption granted under sec. 88c was not produced. The present petitioner made an application for being brought on record as legal representative of Jamnadas on 16th March 1964 and for restoring the two original applications to file. The Mamlatdar restored both the original applications Nos. 27 and 28 to file on 30th March 1964 after showing petitioners name in the cause title and proceeded further with the inquiry on merits. The Mamlatdar dismissed the applications on 25th May 1964 inter alia holding that the applicant has failed to prove that he bona fide required the land for personal cultivation. The present petitioner preferred two separate appeals bearing Nos. 210 and 211 of 1964. These two appeals were heard together by the learned District Deputy Collector who by his judgment and order dated 21st April 1965 allowed both the appeals observing that a number of irregularities were committed in the conduct of the proceeding before the Mamlatdar and therefore the Mamlatdars order was set aside and original applications were remanded to the Mamlatdar for disposal according to law. Respondents tenants preferred two separate Revision Applications to the Gujarat Revenue Tribunal bearing Nos. TEN. A. 1069 and 1069 of 1965. The Gujarat Revenue Tribunal by a common judgment allowed these revision applications holding that the original applications before the Mamlatdar had abated under sec. Respondents tenants preferred two separate Revision Applications to the Gujarat Revenue Tribunal bearing Nos. TEN. A. 1069 and 1069 of 1965. The Gujarat Revenue Tribunal by a common judgment allowed these revision applications holding that the original applications before the Mamlatdar had abated under sec. 18 (3) of the Mamlatdars Courts Act as the heirs of the deceased Jamnadas were not brought on record within the period prescribed for the same and therefore nothing further was required to be done in the Matter. The petitioner has challenged the correctness of this decision in these two petitions under Article 227 of the Constitution. ( 2 ) AS common questions law and facts have been canvassed in both these petitions they were heard together and are being disposed of by this common judgment. ( 3 ) A question of considerable importance has been raised in these petitions. It arises in this manner. One Jamnadas Joitaram Prajapati a certified landlord who held a certificate of exemption issued under sec. 88 made two separate applications on 29th March 1962 against his tenants under sec. 32t for recovering possession of the land leased to each of the tenant on the ground that he required the same for bona fide personal cultivation. When these applications were pending before the Mamlatdar Sankheda certified landlord Jamnadas died on 5th February 1964 According to the present petitioner Shrikant one of the sons of Jamnadas made an application on 9th March 1964 for bringing the legal representative of Jamnadas on record but that aspect is in dispute. However it is common ground that by application dated 16th March 1964 the present petitioner applied for restoring the original applications made by Jamnadas which were dismissed on 27th February 1964 by the Mamlatdar to file and for bringing the legal representatives of deceased Jamnadas on record and permitting him to proceed further with the applications. A contention was raised by the respondent for the first time before the Gujarat Revenue Tribunal that in view of sec. 18 of the Mamlatdars Courts Act the application made by Jamnadas had abated by the time the present petitioner applied for being brought on record as a legal representative of deceased Jamnadas. The Gujarat Revenue Tribunal accepted the contention and held that as the legal representatives of Jamnadas were not brought on record within one month from the date of his death as required by sec. The Gujarat Revenue Tribunal accepted the contention and held that as the legal representatives of Jamnadas were not brought on record within one month from the date of his death as required by sec. 18 of the Mamlatdars Courts Act applications have abated and as there is no provision the said Act for setting aside abatement nothing further can be done in this matter and proceedings can be said to have come to an end finally and irrevocably. ( 4 ) ). Sec. 71 of the Tenancy Act provides that all inquiries and other proceedings before the Mamlatdar under the Tenancy Act shall be commenced by an application which shall contain details therein set out. Sec. 72 provides that in all inquiries and proceedings commenced on the presentation of an application under sec. 71 the Mamlatdar shall exercise the same powers as the Mamlatdars Court has under the Mamlatdars Courts Act 1906 and shall save as provided in sec. 29 of the Tenancy Act follow the provisions of the said Act as if the Mamlatdar or Tribunal were a Mamlatdars Court under the said Act and the application presented was a plaint presented under sec. 7 of the said Act. Sec. 72 further provides that in regard to the matters which are not provided for in the said Act the Mamlatdar shall follow the procedure as may be prescribed by the State Government. On the question raised in this matter it must be mentioned that no particular procedure is prescribed by the State Government in exercise of the powers conferred upon it under sec. 72. In this case the proceedings commenced upon two applications presented by late Jamnadas as provided by sec. 71; and an inquiry had to be made under sec. 32t of the Tenancy Act. That inquiry commenced on the presentation of the applications by Jamnadas. Therefore this inquiry will have to be conducted in view of the provisions contained in sec. 72 according to the procedure prescribed in the Mamlatdars Courts Act as if the Mamlatdar functioning under sec. 32t was a Mamlatdars Court and applications made by Jamnadas were plaints presented under sec. 7 of the Mamlatdars Courts Act. So far there is no difficulty. ( 5 ) SEC. 72 according to the procedure prescribed in the Mamlatdars Courts Act as if the Mamlatdar functioning under sec. 32t was a Mamlatdars Court and applications made by Jamnadas were plaints presented under sec. 7 of the Mamlatdars Courts Act. So far there is no difficulty. ( 5 ) SEC. 18 (3) of the Mamlatdars Courts Act 1906 reads as under:- 18 (3) In case of the death of any party while the suit is pending (I) if application is made within one month of such death the Mamlatdar shall determine summarily who is the legal representative of the deceased party and shall enter on the record the name of such representative; (ii) if no such application is made the suit shall abate. IT appears that where any party to a suit instituted under sec. 5 of the Mamlatdars Court Act dies pending the suit it is necessary to bring his legal representatives on record within one month from the date of death to further proceed with the suit. If an application to bring legal representative on record is not made within one month as provided by sub-clause (i) of sub-sec. (3) the consequences as provided in sub-clause (ii) would ensue namely that the suit shall abate. It may at once be mentioned that there is no provision in the Mamlatdars Courts Act similar to the one in O. 22 R. 9 (2) of the Code of Civil Procedure which enables the legal representatives of deceased plaintiff to apply for setting aside abatement and to be brought on record. If one were merely to look at the procedure prescribed in the Mamlatdars Courts Act it would mean that once the suit abates nothing further can be done with the suit and the suit stands disposed of finally and irrevocably. There is no provision for setting aside abatement or for further effective hearing of the suit. It may also be mentioned that the Mamlatdars Courts Act makes no provision for appeal against the decision of the Mamlatdar. Only power of revision is conferred upon the Collector under sec. 23 of the said Act. A curious result that would follow from strict interpretation of sub-sec. (3) of sec. It may also be mentioned that the Mamlatdars Courts Act makes no provision for appeal against the decision of the Mamlatdar. Only power of revision is conferred upon the Collector under sec. 23 of the said Act. A curious result that would follow from strict interpretation of sub-sec. (3) of sec. 18 would be that if by chance the legal representative of a party to a proceeding under the Tenancy Act which is being inquired into by the Mamlatdar in accordance with the procedure prescribed under the Mamlatdars Courts Act is not brought on record within one month the proceeding would for ever come to an end and partys right would be concluded by such unadjudicated disposal of the matter ( 6 ) THE Mamlatdars Courts Act 1906 is a statute of 1906. It provides a summary remedy in respect of certain types of suits only. The suits cognisable by the Mamlatdars Court under the Mamlatdars Courts Act are those as set out in sec. 5 thereof. They are suits with respect to removal of obstruction from way to some land or flowing or surface water or dispossession of land or premises used for agriculture or grazing. A very narrow jurisdiction was conferred upon the Mamlatdar to try such suits in a summary manner and for expeditious disposal thereof a summary procedure was provided for. The Mamlatdars Courts Act did not provide for an elaborate procedure such as is prescribed in the Code of Civil Procedure and that too for very valid and obvious reasons. It is well settled that the decision of the Mamlatdar in respect of a suit instituted under sec. 5 thereof would not come in the way of a party going to the civil Court and obtaining relief in respect of the same cause of action. The decision of the Mamlatdar in a suit under sec. 5 would not operate as res judicata between the parties save and except that that decision would be binding between the parties till corrected set aside or superseded by a (Court of competent jurisdiction. The decision of the Mamlatdar in a suit under sec. 5 would not operate as res judicata between the parties save and except that that decision would be binding between the parties till corrected set aside or superseded by a (Court of competent jurisdiction. Therefore if in such suits of a fairly trivial nature a summary procedure was prescribed omitting the more elaborate provisions of setting aside abatement when a party to a suit dies and his legal representative is not brought on record within one month the decision of the Mamlatdar one way or the other including abatement of the suit would in no way adversely affect or prejudice the party to the suit because that party can always approach the civil Court for adjudication of its right or grievance. The provisions of the Mamlatdars Courts Act must be construed in the light of the circumstances then prevalent in the year 1906 keeping in view the exigencies of situation that such a court and such a procedure were required to meet. In construing the provisions of a statute the court is not to be oblivious to the historical background of the statute in question what the object of the Legislature was in enacting the statute and the purpose to carry out which it was enacted. The historical setting of the enactment is a well recognised aid in construing the provisions of a statute. ( 7 ) THE situation now is radically different. By the Tenancy Act of 1948 with its revolutionary amendment in the year 1956 very important questions affecting vital rights and interests of the parties in land are now required to be decided by the Mamlatdar to the total exclusion of the civil Court. Serious questions affecting right to and interests in agricultural lands on which the entire rural population depends have to be decided by the Mamlatdar to the total exclusion of the civil Court. The decision of the Mamlatdar in exercise of the powers conferred upon him under sec. 70 especially is final and binding between the parties and the same at least cannot be got corrected by a decision of the civil Court though it may be challenged by way of appeal or revision as provided in the Tenancy Act. The decision of the Mamlatdar in exercise of the powers conferred upon him under sec. 70 especially is final and binding between the parties and the same at least cannot be got corrected by a decision of the civil Court though it may be challenged by way of appeal or revision as provided in the Tenancy Act. Even for deciding such serious questions affecting vital interests and rights of the parties in land as defined in the Tenancy Act and which definition is of widest amplitude the Mamlatdar is still required to follow the procedure prescribed in the Mamlatdars Courts Act a statute enacted for providing summary remedy in trivial disputes. Simultaneously it must be remembered that there is no pecuniary limit to Mamlatdars jurisdiction meaning thereby that he can deal with land valued at lacs of rupees Today if a question arises whether a person is entitled to possession of a very valuable land from his tenant he is required to go to the Mamlatdar under see. 29 (2) of the Tenancy Act as the civil Court will have no jurisdiction to entertain this claim. Such a suit has to be filed within two years from the date of the accrual of the cause of action. If such a suit is pending before the Mamlatdar and the plaintiff or the applicant dies pending the suit and of by some mischance inadvertence or even negligence his legal representatives are not brought on record within one month then the proceeding would abate and party would not be entitled to get his right adjudicated in any other manner. If the suit cannot be revived by setting aside abatement the Mamlatdar cannot entertain a fresh application because by that time the application may have become time barred. It is equally possible that on the application having abated the postponed date may have its own effect in law and the tenant may acquire the status of a deemed purchaser once for ever denying the rights of the landlord to reenter on his land on proof of some of the grounds mentioned in the Tenancy Act. If such a procedure is adhered to it is very harsh. It is unthinkable that Legislature could have ever intended such a situation to arise and remain unsolved which will work harsh both to the landlord as wall as to the tenant. If such a procedure is adhered to it is very harsh. It is unthinkable that Legislature could have ever intended such a situation to arise and remain unsolved which will work harsh both to the landlord as wall as to the tenant. A tenant entitled to possession under the provisions of the Tenancy Act is under an obligation to make an application under sec. 29 (1) of the Tenancy Act within two years from the date of the accrual of the cause of action. He cannot approach the civil Court. If such application abates the tenant may once for ever lose his right to make a second application or to get back land and then become owner thereof. All those special benefits sought to be conferred on the tenants of agricultural lands who constitute a weaker section of the society would be denied by procedural fiat namely that if his heirs are not brought on record within one month the proceeding would finally and irrevocably abate leaving the tenant or his heirs no remedy in respect of such valuable rights. one has also to remember that this strictly procedural work of bringing heirs on record is a sort of technical thing to be done under procedural law by the parties who are denied by statutory provision the assistance of legally trained advocates. Sec. 30 of the Tenancy Act provides that notwithstanding anything contained in the Tenancy Act or any law for the time being in force no pleader shall be entitled to appear on behalf of any party in any proceedings under the Tenancy Act before the Mamlatdar the Tribunal or the Collector. Therefore when simplified the situation boils down to this that a party entitled to some right under the Tenancy Act has approached the Mamlatdar within the prescribed period of limitation and he has to carry on proceeding without the assistance of a pleader. If one such party were to die his heirs should know that if they do not apply for being impleaded as party within one month the proceeding would finally come to an end without any further remedy and this party shall so conduct itself without the assistance of the pleaders. I am afraid this situation is totally inconceivable and the Legislature could have never intended to do any such thing. On an abstract reading of sec. I am afraid this situation is totally inconceivable and the Legislature could have never intended to do any such thing. On an abstract reading of sec. 18 (3) of the Mamlatdars Courts Act this situation is inescapable. ( 8 ) SEE. 18 (3) of the Mamlatdars Courts Act therefore will have to be read imputing some rationality to it. It is true that a duty is cast on the Mamlatdar to summarily decide who is the legal representative of the deceased party to the proceeding before him. Undoubtedly someone has to make an application for being impleaded as legal representative of the deceased party. If the applicant dies naturally the opponent would never care to bring his legal representative on record because the moment one month passes the proceeding would abate and no one would be more happy about it than the opponent. Obviously in such a case the applicants legal representative himself has to go on record by approaching the Mamlatdar unless the section is so read as to cast a duty on the Mamlatdar to find out the legal representative of the deceased party and bring him or her on record. Such a duty cannot be fastened upon the Mamlatdar. If the opponent dies normally the applicant can be expected to bring his legal representative on record. The situation really becomes difficult when the applicant dies and his heirs are not brought on record within one month as envisaged by sec. 18 (3) (i) of the Mamlatdars Courts Act. The provision contained in clause (i) also indicates that all the heirs of the deceased party need not be brought on record as will be required to be done in ally proceeding to which the Code of Civil Procedure applies. In a proceeding tried according to the procedure prescribed by the Mamlatdars Courts Act it would be open to the Mamlatdar to summarily decide who is the legal representative of the deceased party and such a provision would indicate that the Mamlatdar may ask one or other to carry on proceeding as legal representative. But some one will of course have to apply when the original applicant dies to be brought on record as legal representative of the deceased. If such an application is not made within one month from the date of the death of the party the application will abate. But some one will of course have to apply when the original applicant dies to be brought on record as legal representative of the deceased. If such an application is not made within one month from the date of the death of the party the application will abate. ( 9 ) THE question is:- whether the Mamlatdar will have jurisdiction to extend the period of one month within which the legal representative has to be brought on record. Sec. 29 of the Limitation Act 1963 reads as under :-29 (2) Where any special or local law prescribes for any suit appeal application a period of limitation different from the period prescribed by the:- Schedule the provisions of sec. 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by any special or local law the provisions contained in secs. 4 to 24 (inclusive) shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law. IT was contended that the present case would be governed by sub-sec. (2) of sec. 29. The submission is that Article 120 provides. period of limitation of 90 days to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent brought on record and sec. 18 (3) (i) of the Mamlatdars Courts Act prescribes a period of limitation different from the one prescribed in Art. 120 and as sec. 18 is contained special and local law sec 5 of the Limitation Act would apply and therefore the Mamlatdar will have jurisdiction to condone the delay in making an application for bringing heirs on record if the party seeking condonation satisfies the Mamlatdar that it was prevented by sufficient cause from making the application for being brought on record within time. If sec. 5 of the Limitation Act applies the Mamlatdar undoubtedly will have jurisdiction to extend the period for bringing heirs on record if the applicant satisfies the Mamlatdar that he had sufficient cause for not preferring the application within the prescribed period of limitation. The question is whether sec. 5 would apply. ( 10 ) MR. Purandare urged that there is two-fold fallacy in the submission that sec. The question is whether sec. 5 would apply. ( 10 ) MR. Purandare urged that there is two-fold fallacy in the submission that sec. 18 of the Mamlatdars Courts Act which may be styled as local and special law provides a period of limitation different from the one provided in Art. 120 of the Limitation Act. It was urged that Art. 120 which specifically provides a period of limitation of 90 days for bringing on record the legal representative of deceased plaintiff or appellant or of the deceased defendant or respondent may apply to a proceeding under the Code of Civil procedure only and the proceeding before the Mamlatdar could not be said to be a proceeding under the Code of Civil Procedure nor sec. 18 (3) (i) prescribes period of limitation for bring legal representatives on record under Code of Civil Procedure. . It was urged that undoubtedly Art. 120 prescribes a period of limitation to bring legal representatives on record in a proceeding under the Code of Civil procedure meaning thereby a proceeding governed by the Cod. of Civil Procedure. It was then urged that if by any provision in a local or special Law a different period of limitation is prescribed for bringing legal representatives on record in a proceeding governed by the Code of Civil Procedure then alone sec 29 (2) of the Limitation Act will have application and the provision contained in sec. 5 of the Limitation Act can be invoked. On a bare perusal of Art. 120 the argument appears to be plausible. But Art. 120 need not be read in too narrow and technical manner to mean that it prescribes period of limitation for impleading legal representative of deceased plaintiff or appellant or deceased defendant or respondent in a proceeding governed by the Code of Civil Procedure. Article 120 prescribes a period or limitation for impleading or bringing legal representatives on record of a party to such a proceeding which may be governed by the Code of Civil Procedure. The pith and substance of Article 120 is that it prescribes period of limitation for impleading legal representatives of deceased party to a proceedinga proceeding which may be styled as a proceeding governed by the Code of Civil Procedure. The pith and substance of Article 120 is that it prescribes period of limitation for impleading legal representatives of deceased party to a proceedinga proceeding which may be styled as a proceeding governed by the Code of Civil Procedure. The substance of the matter however is that it prescribes a period of Limitation for bringing on record legal representative of a party to the proceeding. Sec. 18 (3) (i) of the Mamlatdars Courts Act operates in the same field except that it provides a different period of limitation for bringing on record legal representatives of a deceased party to a proceeding before Mamlatdar and the proceeding is being the according to the procedure prescribed by the Mamlatdars Courts Act. Sec. 18 (3) (i) and Article 120 both in their communality prescribe a period of limitation for impleading legal representative of a deceased party to a proceeding pending one in the Court and another also a court but known as Mamlatdars Court. In the wider connotation of the expression Civil Court the Mamlatdars Court set up under the Mamlatdars Courts Act would be included. In fact for the purpose of the Tenancy Act Mamlatdars Court is to be treated as civil Court in view of the explanation to sec. 85a of the Tenancy Act. Therefore in pith and substance article 120 and sec. 18 (3) (i) provide for the same thing except for two different kinds of proceedings conducted before two different forums. If the construction as canvassed for by Mr. Purandare was to be accepted at any rate sec. 29 (2) of the Limitation Act would be of no assistance. As period of limitation for bringing legal representative on record in a proceeding governed by the Code of Civil Procedure is specifically prescribed in Art. 120 no occasion would arise for prescribing a different period of limitation for the same proceeding under a local or a special law because the said local or special law would not provide procedure for trial of a proceeding which must be tried according to the cod of Civil Procedure. That would be too narrow a construction of Art. 120 which would defeat the wholesome provision made in sec. 29 (2) of the Limitation Act. That would be too narrow a construction of Art. 120 which would defeat the wholesome provision made in sec. 29 (2) of the Limitation Act. Therefore upon a proper construction it would appear that article 120 prescribes a period of limitation for bringing on record heirs and legal representatives of deceased plaintiff or appellant or of deceased defendant or respondent. In fact there is a provision in the Mamlatdars Courts Act which provides that terminology plaintiff and defendant should also be used for describing parties to a suit filed under sec. 5 of the said Act. Sec. 18 (3) (i) of the said Act also prescribes a period of limitation for bringing on record legal representatives of a deceased plaintiff or of a decease J defendant. If that nomenclature and terminology are retained in respect of a proceeding under the Tenancy Act it would necessarily follow that sec. 18 (3) (i) a provision included in both a special and local law prescribes a period of limitation for impleading or bringing on record the legal representatives of deceased party different from the one prescribed under Art 120 and therefore sec. 29 (2) of the Limitation Act would be attracted and Mamlatdar would have jurisdiction to consider the prayer for condoning the delay in making application for impleading or bringing legal representative of deceased Jamnadas on record. ( 11 ) SECOND objection which Mr. Purandare urged is that at any rate sec. 29 (2) of the Limitation Act would have no application in this case because original application from which the present proceeding arose was filed by Jamnadas on 29th March 1962 and law in force on that day would apply throughout the proceeding arising from the presentation of the said application. Proceeding further it was urged that on 29th March 1962 Limitation Act of 1908 was in force and sec. 29 (2) of the Limitation Act of 1908 provides that sec. 5 would not apply even if the limitation different from the one prescribed in the schedule to the said Act is provided in any special or local law. Now it is true that ordinarily law as in force on the date on which the proceeding is commenced would continue to apply to the same proceeding unless contrary provision is to be found in some other law which it is alleged would apply to that case. Now it is true that ordinarily law as in force on the date on which the proceeding is commenced would continue to apply to the same proceeding unless contrary provision is to be found in some other law which it is alleged would apply to that case. In this case therefore if a question were to arise as to whether application made on 29th March 1962 by Jamnadas was in time or not and if limitation prescribed in the Limitation Act 1908 was invoked in support of that plea Limitation Act of 1908 alone would be taken into consideration even if such a contention was taken at a later stage of the proceeding. But the question raised here is whether the provision contained in sec. 5 of the Limitation Act of 1963 would apply to an application for bringing legal representatives on record and this question would only arise after Jamnadas died. The question whether the legal representative of Jamnadas should be brought on record and that too within what period of time and whether the Mamlatdar has jurisdiction to condone the delay under sec. 5 would only arise after died. The question whether legal representative of Jamnadas was brought on record within the prescribed period would not arise prior to the date of death of Jamnadas. Jamnadas died on 5th February 1964. An application for bringing legal representatives on record could only be made after 5-2-1964 when Jamnadas died. On that day Limitation Act of 1963 was in force and obviously the provisions of that Act would apply. If the provisions of the Limitation Act of 1963 were to apply sec. 29 (2) of the Limitation Act would come into play. Conditions for attracting the application of sec. 29 (2) are satisfied in this case. Therefore sec. 5 would apply and if sec. 5 were to apply and if legal representative of deceased Jamnadas would satisfy the Mamlatdar that he was prevented by sufficient cause from preferring application for bringing him on record in time the Mamlatdar would necessarily have jurisdiction to extend the period of limitation or to condone the delay in making the application. This conclusion is inescapable. ( 12 ) BUT Mr. Purandare urged that once the period prescribed for bringing legal representatives on record under sec. 18 (3) (i) expired and by operation of law proceeding abated till the order of abatement is set aside. This conclusion is inescapable. ( 12 ) BUT Mr. Purandare urged that once the period prescribed for bringing legal representatives on record under sec. 18 (3) (i) expired and by operation of law proceeding abated till the order of abatement is set aside. no useful purpose would be served by condoning the delay in making the application for bringing the legal representative on record and as there is no provision for setting aside abatement it would be an idle formality to condone the delay in making application for bringing legal representatives on record. It was urged that the order of abatement would be an unavoidable impediment in the way of granting an application for condoning delay in making application for bringing legal representative on record. Now an application for bringing on record the legal representative of deceased party may necessitate setting aside the abatement. If by an order legal representative of the deceased party is brought on record it would simultaneously amount to setting aside of the abatement. Even in a proceeding strictly governed by the Code of Civil Procedure the courts have treated an application for bringing the legal representative on record as one to set aside an abatement. In Laxmibai v. Yashwant I. L. R. 47 Bom. 92 the Bombay High Court treated the omission to set aside an abatement as merely a formal defect. Once sec. 5 of the Limitation Act is invoked and delay in making the application for bringing the legal representative on record is condoned abatement will have to be set aside as a necessary corollary. If the Mamlatdar has power to condone the delay in making the application for bringing legal representative on record and extend period of limitation he would incidental to the exercise of that power have power to set aside the abatement. This is the necessary implication of the provision contained in sec. 5 of the Limitation Act read with sec. 18 (3) of the Mamlatdars Courts Act. Any other approach would lead to such a situation which would result in grave injustice to the parties because of the provision that the proceeding under the Tenancy Act have to be heard in accordance with the procedure prescribed in the Mamlatdars Courts Act and because of total exclusion of the jurisdiction of the civil Court to entertain those proceedings. Any other approach would lead to such a situation which would result in grave injustice to the parties because of the provision that the proceeding under the Tenancy Act have to be heard in accordance with the procedure prescribed in the Mamlatdars Courts Act and because of total exclusion of the jurisdiction of the civil Court to entertain those proceedings. ( 13 ) THE above discussion would show that the Mamlatdar can entertain an application for condoning the delay in making an application for bringing legal representatives of a deceased party on record. In fact in the present case the Mamlatdar without ever attempting to find out whether the proceeding had abated a month after Jamnadas died or at any rate on 9-3-64 when the petitioner claims to have made first application for being impleaded as a legal representative of Jamnadas has shown the present petitioner as a party to the present proceeding in his order. But that has been done in ignorance of the relevant provisions of law. Probably the District Deputy Collector was correctly appraised of the situation and therefore he has remanded the matter to the Mamlatdar for hearing the matter afresh permitting both the parties to put forth their various contentions. In my opinion the Tribunal has committed serious error apparent on the face of the record by observing that proceeding had abated a contention never advanced before the Mamlatdar or the District Deputy Collector and without even considering the question of application of sec. 5 of the Limitation Act 1963 ( 14 ) MR. Purandare attempted to urge that when a landlord of agricultural land obtains a certificate under sec. 88c of the Tenancy Act it is the personal qualification because of his personal position namely that the land leased by him does not exceed an economic holding and his income from all sources does not exceed Rs. 150/per year and on satisfaction of these two conditions about his personal position he obtains the status of a certified landlord. It was urged that this status would die with him and the heirs and legal representative cannot step in and clothe themselves with this personal status. It was therefore urged that right to sue in such a case would not survive to the legal representative and legal representative could not be brought on record. It was urged that this status would die with him and the heirs and legal representative cannot step in and clothe themselves with this personal status. It was therefore urged that right to sue in such a case would not survive to the legal representative and legal representative could not be brought on record. It is undoubtedly a very weighty contention raised but it has not been raised till today before the authorities. Now it would be open to the respondents to raise that contention when on the order or the District Deputy Collector the matter goes to the Mamlatdar. I therefore do not express any opinion on this point at this stage. ( 15 ) ONE other aspect of the matter may be noticed. According to the petitioner he made application on 9th March 1964 for bringing him on record as legal representative of deceased Jamnadas. Respondents have controverted this position. There is one application on record dated 16th March 1964 in which two prayers are made one being that the suit dismissed by the Mamlatdar by his order dated 27th February 1964 be restored to file and the second being that the petitioner be brought on record as legal representative of deceased Jamnadas. In this application dated 16-3-1964 there is clear reference to application made on 9th March 1964; but as that aspect has not been considered by the Mamlatdar the question would be kept open between the parties. It would be for the Mamlatdar to decide whether application for bringing legal representative on record of deceased Jamnadas has been made in time or not and if it has not been made in time the petitioner has put forth sufficient reason showing that he was prevented from making the application in time and whether delay in making application should be condoned. These questions will have to be considered by the Mamlatdar. ( 16 ) IN these circumstances the order of the Gujarat Revenue Tribunal dated 15th September 1967 is quashed and set aside and the order of the Deputy Collector dated 21-4-1965 is restored. Rule is made absolute in both these petitions with no order as to costs. .