RAM PIARI v. UNION OF INDIA — 1977 DIGILAW 131 (DEL)

PRITHVI RAJ,j. ( 1 ) LANDS covered by award No. 1956 dated 21st March, 1967, were acquired by the Delhi Administration for a public purpose, viz. , planned development of Delhi at public expense. One Smt. Surjo along with others claiming to be persons interested in respect of their lands acquired feeling aggrieved by the award filed reference petition under section 18 of the Land Acquisition Act (herein to be called the Act ) before the Land Acquisition Collector (herein to be called the Collector ) requiring him to refer the matter for the determination of the Court. During the pendency of the reference petition in the Court of an Additional District Judge, Delhi, (Shri G. R. Luthra), Smt. Surjo died. An application was filed in the Court on 12th October, 1971, requesting that her daughters, namely, Smt. Ram Piari, Smt. Bhagwati, Smt. Champa and Smt. Ratna in whose favour Smt. Surjo was stated to have made a will be brought on the record. As per averment in the said application Smt. Surjo died on 8th April, 1971. The respondents. Union of India, opposed the application alleging that the same was barred by limitation and that the reference petition in respect of the claim of Smt. Surjo had abated according to the provisions of Order 22 of the Code of Civil Procedure, 1908 (herein to be called the Code ). The learned Additional District Judge accepted the twin contentions noted above and by his impugned order dated 4th May, 1972, holding that the application was barred by time and that reference petition in respect of the claim filed by Smt. Surjo had abated, dismissed her claim with a direction that her name be deleted from the reference petition. The legal representatives of the deceased, Smt. Surjo, feeling aggrieved by the above-said order challenge the correctness of the same in Civil Revision No. 271 of 1972 which came up for hearing before one of us (V. S. Deshpande, J. ). The learned Single Judge noticing conflict of judicial decisions on the applicability of the provisions of Order XXII of the Code and that of the Limitation Act to the proceedings under section 18 of the Act before the Court directed that the Civil Revision, petition be placed before the Chief Justice for the constitution of a Full Bench for its decision. This is how the Civil Revision petition No. 271 of 1972 has come up before us. ( 2 ) IN Civil Revision petition No. 451 of 1972 respondent Budhan feeling aggrieved by the award made in respect of his land acquired in pursuance of the proceedings taken under the Act filed a reference A application under section 18 of the Act. The said application was pending in the Court of an Additional District Judge, Delhi, (Shri J. D. Jain) who dismissed the same in default on 27th March, 1968. The claimant after the lapse of four years on 3rd May, 1972, moved an application under Order 9 Rule 9 of the Code for restoration of the said application. The learned Additional District Judge restored the application in view of the decision of P. S. Safeer, J. in Civil Revision No. 367 of 1971, Himmat and othere v. Union of India, decided on 7th March, 1972, (l) holding that "a careful scrutiny of the provisions starting with section 18 and ending with section 26 of the Act leads to a conclusion that once the reference is made under section 18 of the Act to the Court, the Court is bound in law to dispose it of. The reference is not to be dismissed in default of the applicant, on whose application the reference may have been made by the Collector, fails to appear". ( 3 ) SINCE a common question of law, namely, applicability of the provisions of Order XXII and Order 9 of the Code and that of the Limitation Act, 1963, arises in these two revision petitions it would be appropriate to dispose them of by a single judgment. ( 3 ) SINCE a common question of law, namely, applicability of the provisions of Order XXII and Order 9 of the Code and that of the Limitation Act, 1963, arises in these two revision petitions it would be appropriate to dispose them of by a single judgment. ( 4 ) SHRI Kesri Singh appearing for the petitioners in Civil Revision No. 271 of 1972 strenuously contended that a perusal of the provisions of sections 18 to 26 of the Act succinctly bring out the scope of the proceedings envisaged by the above-said sections, unmistakably indicating that on reference application being made a duty is cast on the Collector to furnish a statement to the Court in terms of section 19, apprising the Court regarding the situation and extent of the land, with particulars of any trees, buildings or standing crops thereon and also give the names of the persons whom he has reason to think interested in such land besides apprising the Court in respect of the amount awarded for damages and paid or tendered under sections 5 and 17, or either of them, and the amount of compensation awarded under section II. Further, the Collector, it was urged, is required in case if the objection was with respect to the amount of the compensation, to state the grounds on which the amount of compensation was determined. According to sub-section (2) of section 19 Shri Kesri Singh submitted it is incumbent on the Collector to attach with the said statement a schedule giving the particulars of the notices served upon and of the statements in writing made or delivered by the parties interested respectively. Such detailed information, the counsel submitted, was required to be given to enable the Court to make the award as envisaged by section 26. A Combined reading of sections 18 to 26, he contended, shows that on making a reference by the Collector under section 18, the proceedings in the A Court would terminate on making the award and could not be disrupted, at any earlier stage such as by dismissing the reference in default. It was contended that the scheme of the Act clearly indicates that award has to be made on the reference, and the Court could not abdicate its duty cast on it by section 26. It was contended that the scheme of the Act clearly indicates that award has to be made on the reference, and the Court could not abdicate its duty cast on it by section 26. It was for this reason, goes the argument, that the Collector has to furnish detailed information in terms of section 19. That being 60, it was submitted, on the person interested in the land dying during the pendency of the reference, the Collector was required to furnish the names and addresses of the legal representatives of the deceased claimant so as to bring uptodate the statement furnished by him to the Court. Shri Kesri Singh accordingly contended that reference proceedings cannot be dismissed for any reason whatsoever but must culminate in the award. In this view of the matter he strongly submitted that the provisions of Order XXII of the Code and those of the Limitation Act were altogether foreign to the scheme of the Act, being inconsistent with the very nature and scope of the proceedings under the Act. The above submissions were sought to be reinforced on the basis of a Division Bench Judgment of the Madhya Pradesh High Court in case, Abdul Karim son E of Abdul Hakim and another v. State of Madhya Pradesh, AIR 1964 M. P. 171 (2) wherein a similar question arose for consideration as is under consideration in the instant revision petition. In that case the Bench took the view that the scope of the proceedings envisaged under the Act indicates that once a reference is made under section 18, the Court has to make an award under section 26 and that the proceedings could not be disrupted at any earlier stage. The above view, the Bench observed, was easily discernible from the scope of the enquiry required to be made as contemplated by sections 21 to 23 of the Act. The provisions of Order 22 of the Code, the Bench held, in terms apply only to suits and appeals the trial and hearing of which are regulated by the Code and that the term "suit means a civil proceeding initiated by the presentation of a plaint. The provisions of Order 22 of the Code, the Bench held, in terms apply only to suits and appeals the trial and hearing of which are regulated by the Code and that the term "suit means a civil proceeding initiated by the presentation of a plaint. It was accordingly held that it was obvious enough that the reference proceedings under section 18 of the Act are not suit proceedings in that the reference is not made by the person interested to the Court but to the Collector asking him to make a reference to the Court. That being so, the Bench held that the reference is made not by the party but by the Collector albeit at the instance of the party. Further that section 53 of the Act could not be read as creating a fiction for deeming "proceedings before the Court under the Act" as proceedings in any suit. In the premises it was observed that Order 22 could not be applied to proceedings under section 18 of the Act taking those proceedings as suit proceedings in reality or fictionally under the Code otherwise there would have been no need to create the fiction embodied A in section 26 (2) of the Act that an award made by the Court shall be deemed to be a decree within the meaning of section 2, clause (2) of the Code. The Bench further observed that the applicability of the Code to the proceedings under section 18 of the Act "could only be by virtue of section 53 of the Act, subject to the B limitation contained in that section. The limitation is that the provisions of the Code of Civil Proced ure intended to be applied must not be inconsistent with anything contained in the Act. For the purpose of inconsistency it is not necessary that there should be an express provision to the contrary in the Act itself. It would be enough if the applicability of a provision of the Code of Civil Procedure to any proceedings before the Court under the Act would be incompatible with the nature of the proceedings". Taking the view that a combined reading. It would be enough if the applicability of a provision of the Code of Civil Procedure to any proceedings before the Court under the Act would be incompatible with the nature of the proceedings". Taking the view that a combined reading. of the provisions of sections 18 to 26 indicates that on a reference being made by the Collector, the Court was required to make an award in terms of section 26 of the Act, the Bench held that if the party at whose instance reference was made succeeded in showing prima facie that the award was inadequate, then the Government must support the award by producing evidence but if on the other hand he fails to appear in the Court or to produce any evidence the award made by the Collector would stand and that the Court "then has to make the award made by the Colletcor as its own award under section 26". In that view of the matter the Bench held that there could not be any dismissal or abatement of a reference proceedings and that if the person who moved the reference died and no one came forward to represent him in the Court then it was clearly the duty of the Government to supply the Court the names and addresses of the legal representatives of the deceased claimant to enable the Court to issue fresh notices to them under section 20 of the Act. In the premises the Bench held that the reference proceedings not being suit proceedings and the Code being not applicable proprio vigore to those proceedings the question whether the party moving for the reference occupies the position of the plaintiff was not relevant to the question of the applicability of any provision of the Code by virtue of section 53. Further, that even if the party moving for the reference may be held to be "more or less in the position of the plaintiff" or be "on the same footing as the plaintiff", nonetheless the reference proceedings could not because of that description of the position of the party, become suit proceedings so as to attract the Code in its entirety. ( 5 ) RELIANCE next was placed on the observations of a Division Bench of the Patna High Court in case, Bhadar Munda and another v. Dhuchua Oraon, AIR 1970 Pat 209 (3), holding that once a reference is made under section 18 of the Act the Court must make an award under section 26 of the Act irrespective of whether the person at whose instance the reference had been made does or does not appear before the Court or fails to produce evidence in support of his objection and that a reference proceedings cannot abate. The Bench accordingly held that application of Order 22 of the Code is inconsistent with the very nature and scope of the proceednigs under section 18. ( 6 ) IT is no doubt true that the above two cases relied upon by the learned counsel for the petitioner support the contentions urged by him. However, the reasoning adopted and the conclusions arrived at in the above-noted two cases are not warranted by the provisions of sections 18 to 26 of the Act. And we say so with utmost respect to the learned Judges deciding the said cases. The decision in case Bhadar Munda (supra) proceeded on the basis of the author s commentary at page 808 in Sanjiva Row s Law of Land Acquisition Fifth Edition, revised and enlarged by J. P. Singal. ( 7 ) ACCORDING to section 18 (1) any person interested in the land p acquired under the provisions of the Act and who has not accepted the award made by the Collector may, by written application to the Collector required that the matter be REFERRED TO by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. Sub-section (2) of section 18 enjoins that the application shall state the grounds on which the objection to the award is taken ; PROVIDED that every such application shall be made, (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector s award; II (b) in other cases, within six weeks of the receipt of notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector s award, , whichever period shall first expire. ( 8 ) THE Collector on receipt of such an application and on satisfying himself that the same had been made within the stipulated period shall make the reference to Court complying with the provisions of section 19. Sub-section (1) of the said section envisages that in making the reference, the Collector shall state, for the informatfon of the Court, in writing under his hand : (A) the situation and the extent of the land, with particulars of any trees, buildings or standing crops thereon; (b) the names of the persons whom he has reason to think interested in such land ; (c) the amount awarded for damages and paid or tendered under sections 5 and 17, or either of them, and the amount of compensation awarded under section II; and (d) if the objection be to the amount of compensation, the grounds on which the amount of compensation was determined. ( 9 ) THE Collector is required to attach under sub-section (2) of section 19 of the Act to the said statement a schedule giving the particulars of the notices served upon, and of the statements in writing made or delivered by the parties interested respectively. ( 10 ) IT will be seen that the information required to be furnished by the Collector to the Court is with a view to enabling the Court to issue notices to the applicant and all persons interested apprising them of the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day. Section 20 of the Act requires that service of the notice shall be effected on the applicant and all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and, if the objection is in regard to the area of the land or to the amount of the compensation, the Collector. ( 11 ) IT is, therefore, evident that the information that the Collector is required to furnish to the Court in terms of section 19 is only to enable the Court to issue notices to the concerned parties and also to post the Court with the various other particulars required to be furnished in terms of the aforesaid section. ( 12 ) SECTION 19 in terms does not invest the Collector with the status of a prosecutor to prosecute the reference made at the instance of a person interested. The Collector in terms of section 19 is under no obligation to keep a track of the reference and produce evidence before the Court. This clearly is the duty of the person interested if he feels dis-satisfied with the offer made to him by the Collector. ( 13 ) SECTION 21 restricts the scope of the enquiry during the proceedings before the Court to the consideration of the interests of the person affected by the objections. According to section 22 every proceeding taken by the Court shall take place in the open Court. This section enables all persons entitled to practise in Civil Court in the State to appear, plead and act (as the case may be) in such proceeding. ( 14 ) SECTION 23 enumerates the matters required to be considered by the Court in determining the amount of compensation to be awarded for the land acquired under the Act, while section 24 enumerates the matters which the Court is not required to take into consideration. ( 15 ) SUB-SECTION (1) of section 25 envisages that when the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section II. ( 15 ) SUB-SECTION (1) of section 25 envisages that when the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section II. Sub-section (2) stipulates that when the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector while according to sub-section 3,when the applicant has omitted for a sufficient reason (to be allawed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector. ( 16 ) SECTION 26 prescribes the form of award in which the Court is to make the award. Sub-section (1) thereof prescribes that the award shall be in writing and signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of section 23, and also the amounts (if any) respectively awarded under each, of the other clauses of the some sub-section, together with the grounds of awarding each of the said amounts. Sub-section (2) stipulates that every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2, clause (2), and section 2, clause (9), respectively,of the Code of Civil Procedure. ( 17 ) ON a plain reading of section 26, as noted above, it is evident that an award made shall be made in writing and shall be signed by the Judge, specify the amount awarded under clause first of subsection 1, of section 23 and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section. The section does not stipulate that once a reference is made at the instance of a person interested who deserts the proceedings or chooses not to prosecute them, the Court is bound to make an award. In such an event it will be open to the Court to dismiss the reference application for non-prosecution. The section does not stipulate that once a reference is made at the instance of a person interested who deserts the proceedings or chooses not to prosecute them, the Court is bound to make an award. In such an event it will be open to the Court to dismiss the reference application for non-prosecution. Such an order will be in consonance with the provisions of section 53 of the Act which envisages that "save in so far as they may be inconsistent with anything contained in this Act, the provision of the Code of Civil Procedure shall apply to all proceedings before the Court under this Act". ( 18 ) A combined reading of sections 18 to 26 of the Act, noted above, does not show that any obligation is cast on the Court to make an award on the failure of the applicant, on whose instance reference is made,. to adduce evidence to challenge the quantum of compensation offered to him by the Collector or lay a challenge that the measurement taken by the Collector in respect of the land or property acquired was not properly made. In such a case the Court is not to embark upon an enquiry on its own volition nor it is the duly of the Collector to adduce evidence before the Court to justify the award made by him. On a party laying challenge to the award made by the Collector retreating from the reference during the proceedings before the Court, no obligation is cast on the Court to make an award. ( 19 ) AS noted earlier section 21 of the Act restricts the scope of the enquiry to a consideration of the interests of the persons at whose behest the Collector makes the reference on their applying to the Collector to make the reference. That being so, it is incumbent on them to pursue their claim as provided under the Act. In the event of the death of a person at whose instance the reference was made, the right to continue the reference survives to his legal representatives. It is for the legal representatives if they choose to pursue the reference to apply to the Court for being brought on the record to enable them to prosecute the reference. In the event of the death of a person at whose instance the reference was made, the right to continue the reference survives to his legal representatives. It is for the legal representatives if they choose to pursue the reference to apply to the Court for being brought on the record to enable them to prosecute the reference. No obligation is cast on the Collector to furnish the names and addresses of the legal representatives of a deceased claimant to keep the reference alive. The reference is to l be answered and an award given by the Court only on evidence being produced before it by the claimant who challenges the award given by the Collector. If no evidence is led the reference has to be declined. The provisions of the Act do not cast any obligation on the Collector to justify his award. It is only when a claimant produces evidence before the Court and succeeds in showing that the award made by the Collector is inadequate that the Collector is to lead evidence in rebuttal. The Act itself does not prescribe the procedure applicable to the proceedings before the Court while hearing a reference application. Section 53 of the Act, however, makes the provision,s of the Code applicable to these proceedings. Accordingly the procedure laid down in the Code has to be followed by the Court indeciding a reference application. ( 20 ) THE procedure laid down in the Code being applicable to these proceedings, it cannot be urged that the applicability of the provisions of Order 9 and Order 22 of the Code are not attracted to the proceedings in the Court. ( 21 ) AN application "under Order 22 requiring the legal representatives to be brought on the record has to be moved within the period prescribed for moving such application. In case the application is not moved within time the reference would abate and the Court is not obliged to answer such a reference. It is no doubt true that a reference application is not a suit, however because of the applicability of the procedure prescribed in the Code to the proceedings before the Court in such applications, the proceedings before the Court partake the nature of a suit. It is no doubt true that a reference application is not a suit, however because of the applicability of the procedure prescribed in the Code to the proceedings before the Court in such applications, the proceedings before the Court partake the nature of a suit. During the proceedings before the Court in the reference application the claimants will partake the status of plaintiffs while the non-claimants and the Collector would occupy the position of defendants. ( 22 ). In Ezra v. Secretary of State and another, 32 ILR (CAL) 605 (4), the Privy Council observed that when a reference is made to the Civil Court, the applicant has to be regarded as plaintiff and the Government as defendant and that the procedure provided in the Code to suits shall be followed in dealing with application under section 18 of the Act. The Privy Council approved the view taken by the Calcutta High Court in Irza v. Secretary of State, 30 ILR (CAL) 36 (5 ). ( 23 ). In Eqappa Gounder v. Special Tehsildar (Land Acquisition) Ashok Leyland and Blue Mountan Estate, 83 LW 561 (6), noticing the provisions of section 53 of the Act providing that the provisions of the Code are applicable to the proceedings before the Court in a reference application it was held that when a reference application under section 18 of the Act is made, the proceedings take the colour of the suit, the claimants figure as plaintiffs in the action and the Government or the acquiring officer as the defendant. It was 13hcd/77 2. further held that the burden of proof is generally on the claimants/ objectors to substantiate their objections as to compensation and that in the proceedings under section 18 of the Act it is the objector who is to lead the evidence to show that the compensation awarded was not fair and adequate. ( 24 ). On the application of the provisions of Order 22 to the proceedings on a reference application before the Court it is futile to contend that the provisions of the Limitation Act would not be applicable for filing an application under the aforesaid provision of law for bringing on record the legal representatives of the deceased claimants. ( 25 ). On the application of the provisions of Order 22 to the proceedings on a reference application before the Court it is futile to contend that the provisions of the Limitation Act would not be applicable for filing an application under the aforesaid provision of law for bringing on record the legal representatives of the deceased claimants. ( 25 ). In Phuman and others v. The State of Punjab and others I. L. R. (1963) (2) Punjab 442 (7), the reference made under section 18 of the Act was held to have abated on the death of the person interested. "the contention that the Court under the provisions of section 21 to 23 and 26 of the Act was bound to make an award and as such the provisions of Order 22 of the Code could not be applied to the proceedings before the Court, was repelled. It was held that under section 21 of the Act, the scope of the enquiry had been restricted to a consideration of the interests of the persons effected by the objections filed under section 18 of the Act against the award given by the Collector. It was, therefore, incumbent on them or their legal representatives to pursue their claim as provided under the Act. It was accordingly held that the reference would be answered and the award would be made by the Court after they had led evidence in support of their objections and their cases are heard. For this purpose, the Bench observed that certain procedure had been prescribed under the Act in that section 53 of the Act makes the provisions 6f the Code applicable to these proceedings save in so far as they may be inconsistent with anything contained in the Act. That being so the procedure laid down in the Code had to be observed by the Court while deciding these objections. The Bench accordingly held that the provisions of Order 22, Rule 3 would apply, unless it could be shown that they were inconsistent with anything contained in the Act. It was further observed that there is no specific provision in the Act which says that the principles of abatment would not apply to the proceedings before the Court under the Act. ( 26 ). It was further observed that there is no specific provision in the Act which says that the principles of abatment would not apply to the proceedings before the Court under the Act. ( 26 ). The Bench also observed that Order 22 of the Code clearly lays down that the legal representatives of the deceased must be brought on the record within the time limited by law and that in case it is not done so, the result would be that the reference would abate. In such a contingency, it was held, it could not be argued that when a reference had abated, it must be answered by the Court and that under those circumstances it could not be said that the provisions of Order 22 of the Code are inconsistent with those of sections 20 to 23 and 26 of the Act. Holding that the applications under section 18 of the Act are in the nature of suits and the applicants thereunder are to be treated as plaintiffs it was observed that the limitation provided for making the application under Order 22 Rule 3 would apply to these proceedings as well. It was further observed that no doubt that the Limitation Act as such has not been made applicable to the proceedings before the Court under the Act, however since the provisions of the Code have been made applicable, it is mentioned in Order 22 Rule 3, sub-rule 2,that the application under that rule has to be made within the time allowed by law. ( 27 ). It would, therefore, be seen that because of the applicability of Order 22 Rule 3 it was held that the said application was required to be filed within the lime permissible for filing such an application under the provisions of the Limitation Act. In our opinion this view is supported in law because of the applicability of the provisions of the Code to the reference proceedings and we express our agreement to it. ( 28 ). In our opinion this view is supported in law because of the applicability of the provisions of the Code to the reference proceedings and we express our agreement to it. ( 28 ). A Division Bench of this Court in case, The Union of India v. Rameshwar Nath and another (R. F. A. No. 189 of 1969) decided on 17th August, 1971 (8), to which one of us (T. V. R. Tatachari, J. , as he then was) was a party noted with approval the view taken in case Phuman and others (supra) holding that an appeal against the decree of the Court upon a reference under section 18 of the Act being an appeal under the Code, the provisions of Order 22 apply to such an appeal and that the provisions of Limitation Act would also apply to such an appeal. ( 29 ). In Alihusain Abbasbhai and others v. Collector Panch Mahals, AIR 1967 Guj 118 (9), while holding that the nature of the reference under section 18 was not such that it must necessarily result in the making of an award by the Court; that reference was not different from an ordinary civil proceeding in which the applicant who is in the position of a plaintiff objects to the amount of compensation offered in the award of the Collector and claims additional compensation, on the failure of the applicant to appear at the hearing of the reference the same. was liable to be dismissed by force of Order 9 Rule 8 made applicable by section 53 of the Act like any other civil proceedings; and that in the same way if the applicant did not produce evidence in support of the objection, the reference must be dismissed just as any other civil proceeding would be dismissed for want of evidence in support of the claim, it was observed that if the reference could be dismissed for default of appearance of the applicant or for want of evidence before the Court, there was no reason why Order 22 Rule 3 should not be applicable to the reference. It was accordingly held that provisions contained in both the sub-rules of Order 22 Rule 3 can be made applicable without creating any inconsistency or disharmony and that it must, therefore, be concluded that provisions of the said Rule apply to a reference under section 18 of the Act. It was accordingly held that provisions contained in both the sub-rules of Order 22 Rule 3 can be made applicable without creating any inconsistency or disharmony and that it must, therefore, be concluded that provisions of the said Rule apply to a reference under section 18 of the Act. The Court, however, held that though section 53 makes the provisions of the Code applicable to a reference it does not make the provisions of the Limitation Act applicable to such a reference and that no time is limited by law for making of an application by the heirs of a deceased applicant for bringing themselves on record in the reference. This view proceeded on the basis that the word "suit" in section 3 of the Limitation Act means a civil proceeding instituted by the presentation of a plaint and the word "plaintiff" in Article 176 of the Limitation Act, 1908, must mean a plaintiff in such a suit and cannot include an applicant in a reference. ( 30 ). We are in respectful agreement with the view that the provisions of Order 22 and Order 9 are applicable to the proceedings in Court on a reference application but we express our inability to accept that no time is limited by law for making an application under Order 22 Rule 3 and we say so with respect for the reasons stated by us in an earlier part of the judgment. This view was dissented from by the Bench of this Court in case Union of India v. Rameshwar Nath (supra ). ( 31 ). In this view of the matter the opinion of a learned Single Judge of this Court in case Union of India v. Sanwalia etc. , ILR (1975) I Delhi 837 (10), following the ratio of case Alihusain Abbasbhai and others (supra) that an application, under Order 22 Rule 3 can be made at any time and that the reference will not abate, but if the application for substitution is not made within a reasonable time, the reference may be dismissed for non-prosecution and should it reject the application, then the Court will proceed to decide the reference as if the deceased person were no longer a party before it, does not lay down correct law. Since a reference application can be dismissed in default for non-prosecution, the view taken by the learned Single Judge in Civil Revision No. 367 of 1971 Himmat and others (supra) as well as does not lay down correct law. ( 32 ). The cases relied upon by the learned counsel for the petitioner are of no assistance to the petitioner as they were decided on their own merits. The learned counsel placed reliance on case Management of the State Bank of Hyderabad v. Vasudev Anant Bhide and others, AIR 1970 S. C. 196 (11), and Town Municipal Council Athani v. Presiding Officer, Labour Court, Hubli and others, AIR 1959 S. C. 1335 (12) wherein it was observed that Article 137 of the Limitation Act, 1963, applies to applications presented to Courts governed by the Code and that Industrial Tribunals or a Labour Court dealing with applications or references under the Industrial Disputes Act are not Courts and they are in no way governed by the Code. It was in that context that it was observed that no limitation is prescribed for filing an application under section 33 C (2) of the Industrial Disputes Act. The observations of the Court in Nitya Nand M. Joshi and another v. The Life Insurance Corporation ofIndia and others, AIR 1970 S. C. 209 (13) that it is only applications to Courts that are intended to be covered under Article 137 of the Limitation Act 1963 do not advance the case of the petitioners. ( 33 ). Lastly, reliance was placed on case Hansraj Gupta and others v. Dehra Dun-Mussorie Electric Tramway Co. Ltd. , AIR 1933 P. C. 63 (14) in which it was observed that the suit ordinarily means a civil proceeding insituted by presentation of a plaint; that the applications of the liquidators would not be "suit" within the meaning of section 3 of the Limitation Act, 1908; and that applications by the Liquidators could not be dismissed as being a "suit instituted" after the prescribed period of limitation. The ratio of this case is again not applicable in the instant case. ( 34 ). This brings us to the merits in the two revision petitions. In Civil Revision No. 271 of 1972 claimant Smt. Surjo was stated to have died on 8th April, 1971. The ratio of this case is again not applicable in the instant case. ( 34 ). This brings us to the merits in the two revision petitions. In Civil Revision No. 271 of 1972 claimant Smt. Surjo was stated to have died on 8th April, 1971. Application under Order 22 Rule 3 was made on 12th October, 1971, i. e. , after more than 90 days of the death of Smt. Surjo. No ground having been alleged, as noted by the learned Additional District Judge, Delhi, for condoning the delay in not filing the said application within the period of 90 days which in fact was filed late by about 95 days, was rightly rejected by the Court having not been made within time. According to sub-rule (2) of Rule 9 of Order 22 abatement could be set aside if the legal representatives of Smt. Surjo had proved that they were prevented by sufficient cause from continuing the suit. That having not been done, mere filing of the application would not per se entitle the legal representatives to an automatic order of setting aside the abatement. In the circumstances, the order dated 4th May, 1972, passed by Shri G. R. Luthra, Additional District Judge, dismissing the application of the legal representatives, is confirmed. Civil Revision Petition No. 271 of 1972 is dismissed leaving the parties, however, to bear their own costs. ( 35 ). in Civil Revision Petition No. 451 of 1972 the order dismissing the reference application in default was set aside on the ground that the reference could not be dismissed in default. This being not the. correct position in law, the revision petition is accepted. Order dated 29th July, 1972, passed by Shri J. D. Jain, Additional District Judge, is set aside. The case is remanded to the Court with a direction that the application of the respondents seeking setting aside of the order dismissing the reference application in default be disposed of in accordance with law. Parties are left to bear their own costs of this petition. ORDERED accordingly.