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1982 DIGILAW 1147 (ALL)

Balram v. IIIrd Additional District Judge

1982-10-06

R.B.LAL

body1982
JUDGMENT R.B. Lal, J. - This is a writ petition under Article 226 of the Constitution and the prayer is that the order of the IIIrd Additional District Judge, Kanpur, rejecting the substitution application of the Petitioners be quashed. 2. Proceedings under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (briefly the Act) were taken against Rameshwar Dayal, father of the present Petitioners. The Prescribed Authority held that certain area of land was surplus land in the hands of Rameshwar Dayal Rameshwar Dayal appealed to the District Judge but without success. He filed a writ petition No. 4002 of 1976 in this Court and that petition was allowed by order dated 4-10-78 and the case was remanded and the appellate Court was directed to rehear and decide the appeal on merits afresh. Thus, the Ceiling Appeal No. 189 of 1976 Rameshwar Dayal v. State of Uttar Pradesh was restored to its original number and came up before the IIIrd Additional District Judge, Kanpur for hearing and decision. Rameshwar Dayal died on 9-1-80. His sons, namely, the present Petitioners, moved an application for substitution of the legal representatives on 25-10-80 and also appended an application for condonation of delay u/s 5 of the Limitation Act. The Additional District Judge took the view that the legal representatives had no good reason to move a belated substitution application. He, therefore, declined to set aside the abatement of the appeal. This order is sought to be quashed in the present proceedings. 3. The contention of the learned Counsel for the Petitioners is that no period of limitation for making a substitution application in an appeal under the provisions of the Act is prescribed under the Act or in Rule 3 of Order XXII of the CPC which was applicable in view of the provisions of Section 38 of the Act, hence the appeal could not be taken as abated on the expiry of ninety days from the date of the death of Rameshwar Dayal. The application for substitution made on 25-10-80 ought to have been taken as not barred by limitation and should have been allowed and the abatement of the appeal should have been set aside. The order to the contrary passed by the Additional District Judge, is, thus, manifestly illegal and deserves to be quashed. 4. The application for substitution made on 25-10-80 ought to have been taken as not barred by limitation and should have been allowed and the abatement of the appeal should have been set aside. The order to the contrary passed by the Additional District Judge, is, thus, manifestly illegal and deserves to be quashed. 4. Sub-section (1) of Section 38 of the Act which is relevant reads thus: 38. "Powers of the appellate Court and the procedure to be followed by it. (1) In hearing and deciding an appeal under this Act, the appellate Court shall have all the powers and the privileges of a civil Court and follow the procedure for the hearing and disposal of appeals laid down in the Code of Civil Procedure, 1908". 5. In view of the above quoted Sub-section, the provision of the CPC relating to the hearing and disposal of appeals are applicable to the appeals under the Act. This makes the provisions of Orders 41 and 22 applicable to the appeals under the Act. Rules 3, 9 and 11 of Order XXII of the CPC are relevant and may be extracted: "3. Procedure in case of death of one of several Plaintiffs or of sole Plaintiff. (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 no application is made under Sub-rule (1), the suit shall abate so far as the deceased Plaintiff 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." 9. Effect of abatement or dismissal: (1) Where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action. Effect of abatement or dismissal: (1) Where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action. (2) The Plaintiff or the person claiming to be the legal representative of a deceased Plaintiff or the assignee or the receiver in the case of an insolvent Plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of Section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under Sub-rule (2). (Explanation-Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this order). 11. Application of order to appeals. In the application of this order to appeals, so far as may be, the word "Plaintiff" shall be held to include an Appellant, the word "Defendant" a Respondent, and the word "suit" an appeal". 6. Rule 11 quoted above makes the provisions of Rules 3 and 9 (extracted above) applicable to an appeal as well. It is true that neither Rule 3 nor Rule 9 lays down any period of limitation for making an application for substitution or for making an application for setting aside the abatement of an appeal; however, this much is clear that they refer to the period of limitation which is to be found else-where. An application for substitution of legal representatives which is to be made under Rule 3 or an application for setting aside the order of abatement which is to be made under Rule 9 of Order XXII is no doubt an application under the Code of Civil Procedure. Article 120 of the Limitation Act provides limitation for an application made under the CPC to have the legal representatives of a deceased Appellant made a party. Article 121 provides limitation for an application under the CPC for an order to set aside an-abatement. Thus, it is evident that these Articles are applicable to applications made under Rule 3 and Rule 9 of Order XXII CPC respectively. Article 121 provides limitation for an application under the CPC for an order to set aside an-abatement. Thus, it is evident that these Articles are applicable to applications made under Rule 3 and Rule 9 of Order XXII CPC respectively. The applications moved under these rules, in an appeal under the Act shall be deemed to be applications under the CPC coming within the ambit of Articles 120 and 121 of the Limitation Act. 7. Learned Counsel for the Petitioner has laid great stress on the fact that by Section 42 of the Act only the provisions of Sections 4, 5 and 12 of the Limitation Act, 1963, have been made applicable to all proceedings including proceedings in appeals under the Act. He has urged that this clearly shows that other provisions of the Limitation Act are not applicable to an appeal under the Act. This argument is not well founded. The Act provides limitation for certain proceedings. It also provides that an appeal u/s 13 may be filed within 30 days. In order to extend the benefit of the provisions of Sections 4, 5 and 12 of the Limitation Act to proceedings for which limitation has been specified in the Act itself, a specific provision has been made in Section 42 of the Act. This Section is not to be read as placing a bar on the application of other provisions of the Limitation Act, 1963 if they are otherwise applicable to appeals or any other proceedings under the Act. Here it may be emphasised that neither the Act nor the rules made thereunder provide for limitation for making an application for substitution of the legal representatives of a deceased party, Appellant or Respondent. In view of the above discussion, I am clearly of the view that the application for substitution of the legal representatives of an Appellant in an appeal under the Act should be made within 90 days as provided in Article 120, Limitation Act and an application for setting aside abatement of appeal should be made within 60 days Under Article 121, Limitation Act. 8. The learned Additional District Judge was, therefore, right in taking the view that the appeal had abated as the application for substitution of the heirs of Rameshwar Dayal deceased Appellant was not made within 90 days from the date of his death. 8. The learned Additional District Judge was, therefore, right in taking the view that the appeal had abated as the application for substitution of the heirs of Rameshwar Dayal deceased Appellant was not made within 90 days from the date of his death. The reason for setting aside abatement and condoning the delay, given by the legal representatives, was that they were under the impression that an application for substitution could be moved when they received notice of the hearing of the appeal. This reason was not accepted as sufficient by the learned Additional District Judge. No exception can be taken to this approach of the learned District Judge. The impugned order of the learned -III Additional District Judge does not suffer from any legal infirmity and, therefore, no interference is called for. 9. The writ petition has no merit and is hereby dismissed with costs.