JAGDISHBHAI J. DESAI v. VIDYABEN RAMBHAI PATEL — 1993 DIGILAW 173 (GUJ)

SHAH, J. ( 1 ) THE applicant of C. A. Nos. 5143 and 5144 of 1992 is the original petitioner in C. R. A. No. 1014 of 1988. The said revision application was admitted by the learned single Judge of this Court on 29/09/1988. It appears that Vidyaben Rambhai Patel instituted Rent Suit No. 1078 of 1986 against the present applicant for his eviction from the suit premises consisting of three rooms, kitchen, gallery on the first floor. The trial Court by its judgment and decree, dated 16/08/1982 passed decree for eviction in favour of land-lady and against the present applicant. Aggrieved by the aforesaid judgment and decree the present applicant preferred Reg. Civil Appeal no. 282 of 1982 in the District Court at Baroda which dismissed the appeal by its judgment and decree, dated 30/07/1988. Against the said judgment and decree passed by the District Court the aforesaid Civil Revision Application is filed in this Court which is admitted and is pending for final hearing. ( 2 ) DURING the pendency of the said revision application the land-lady- vidyaben Rambhai Patel has expired on 5/02/1991. One Khevinaben rambhai Patel claims to be the heir and legal representative of aforesaid vidyaben Rambhai Patel under a will executed by Vidyaben. ( 3 ) SAID Khevinaben R. Patel had filed Misc. C. A. No. 1575 of 1992, inter alia, praying that since the heirs and legal representatives of deceased vidyaben are not brought on record within the prescribed period of limitation the C. R. A. No. 1014 of 1988 has abated and that writ to that effect should be issued to the trial Court as well as to the District Court. ( 4 ) C. A. No. 5143 of 1992 is filed by the original petitioner in C. R. A. (tenant) for condoning delay caused in bringing heirs and legal representatives of deceased -Vidyaben R. Patel on record and for impleading Khevinaben r. Patel as heirs and legal representative of Vidyaben R. Patel. In the application for condonation of delay it is, inter alia, averred by the applicant-original petitioner that he had no knowledge about the death of vidyaben R. Patel. In the application for condonation of delay it is, inter alia, averred by the applicant-original petitioner that he had no knowledge about the death of vidyaben R. Patel. He has stated that on or about 19/09/1992 when khevinaben R. Patel filed M. C. A. No. 1575 of 1992 pointing out that vidyaben R. Patel has expired on or about 5/02/1991 that he came to know about the death of Vidyaben R. Patel. Immediately, on his coming to know about the death of Vidyaben R. Patel the application to condone delay being C. A. No. 5143 of 1991 is filed. It is his case that from the date of knowledge of death of Vidyaben R. Patel the application is filed within time, but from the date of death of Vidyaben R. Patel it is filed beyond prescribed period of limitation and delay is caused because he never knew about the death of Vidyaben R. Patel. He, therefore, prayed for condonation of delay. ( 5 ) PROPOSED heir of Vidyaben R. Patel has, by filing affidavit-in-reply, resisted the prayer for condonation of delay. It is her case that the present applicant knew about the death of Vidyaben R. Patel. She has further stated that Vidyaben R. Patel expired on one of the blocks of Binni Niwas, i. e. , the same building in which the applicant is residing. She has further stated that applicant had also attended the cremation ceremony and Besna ceremony and even in Newspaper, dated 10/02/1991 advertisement was issued about the death of Vidyaben. She has, therefore, contended that no cause is made out by the applicant for condonation of delay. ( 6 ) AS regards C. A. No. 5144 of 1992 it is an application to implead khevinaben R. Patel as heir and legal representative of deceased-Vidyaben r. Patel in the proceeding and incidentaly it is an application for setting aside the abatement, if there is any. It shall have to be stated that no affidavitin- reply is filed but oral submissions are made by the learned Counsel appearing for proposed heir-Khavinaben R. Patel. ( 7 ) MR. Mohit S. Shah, learned Counsel for proposed heir who has filed Misc. C. A. No. 1575 of 1992, has strenuously urged before this court that the proceedings before this Court are under Bombay Rents, hotel and Lodging House Rates Control Act, 1947. ( 7 ) MR. Mohit S. Shah, learned Counsel for proposed heir who has filed Misc. C. A. No. 1575 of 1992, has strenuously urged before this court that the proceedings before this Court are under Bombay Rents, hotel and Lodging House Rates Control Act, 1947. Under Sec. 49 of the said Act power is given to the State Government to make rules for the purpose of giving effect to the provisions of the said Act. He has further submitted that in exercise of said power rules are already made by the state Government and Rule 16, Inter alia, provides that the provisions of code of Civil Procedure would apply, as far as practicable, to the proceedings under Bombay Rent Act. He, therefore, submitted that the provisions of Order 22, Rule 4 and Order 22 Rule 11 of C. P. Code would squarely apply. By reference to Order 22 Rule 4 which deals with procedure in case of death of one of several defendants or of sole defendant, he submitted that in this case deceased-Vidyaben R. Patel was the sole respondent, who has died during pendency of C. R. A. and the right to sue has survived but since no application is made to implead the legal representative of deceased-Vidyaben the C. R. A. has abated as against deceased-respondent,, and. therefore, question of condonation of delay in bringing the heirs on record would not arise. He submitted that C. A. No. 5143 of 1992 which was filed for condonation of delay was admittedly filed after the period of 90 days from the date of death of vidyaben R. Patel, and therefore, the C. R. A. abated on the expiry of period of 90 days, and the application for having the abatement set aside shall have to be made within a period of 60 days under Art. 121 of limitation Act, 1963. The submitted that in fact no application for setting aside the abatement is made, and therefore, the C. R. A. has abated. Alternatively, he submitted that no sufficient cause was made out which would justify the Court to condone the delay caused in making application for bringing heirs of deceased vidyaben R. Patel on record. The submitted that in fact no application for setting aside the abatement is made, and therefore, the C. R. A. has abated. Alternatively, he submitted that no sufficient cause was made out which would justify the Court to condone the delay caused in making application for bringing heirs of deceased vidyaben R. Patel on record. He submitted that the present applicant had knowledge about the death of Vidyaben R. Patel, and therefore, he ought to have made application for bringing the heirs of deceased-Vidyaben on record within prescribed period of limitation and that having not been done the C. R. A. has abated. ( 8 ) MR. R. K. Shah, learned Advocate for applicant-original petitioner in c. R. A. on the other hand, submitted that the provisions of Order 22 will not apply to revision application under Sec. 29 (2) of Bombay Rent Act, and that the heirs can be brought on record within three years under residuary Art. 137 of the Limitation Act. He has in this connection relied upon the decision of the Bombay High Court rendered in the case of Hafasji Ibrahim v. Mangalji mathuraji, reported in AIR 1946 Bom 201. Justice M. C. Chagla (as His Lordship then was) held that when an applicant to the revision application to the Collector died, during the pendency of revision his legal representative can be brought on record even after the prescribed period of limitation and the provisions of order 22-of C. P. Code do not apply to the revisional proceedings before the collector. Justice Chagla in the said decision observed as under : "to my mind the provisions of Order 22 Civil Procedure Code cannot apply to the revisional proceedings before the Collector. Order 22 applies in terms to all suits and appeals. The question is whether by reason of Sec, 141 of the Code the procedure provided under Order 22 can be made applicable to these proceedings. Their lordships of Privy Council in 22 I. A. 44 have laid down that the proceedings spoken of in Sec. 141 of the Code refer only to original matters in the nature of suits such as proceedings in probates, guardianships, and so forth Now, it cannot possibly be said that a revisional application is an original matter in the nature of a suit, therefore, to my mind Order 22 would not apply to the revision application pending before the collector. I find that a learned Judge of the Madras High Court in AIR 1938 Mad. 115 has taken the view that Order 22 Rules 3 and 4 are applicable to proceedings under sec. US Civil Procedure Code and an order passed by the High Court on a petition under Sec. 115 in ignorance of the fact of death of the petitioner more than 90 days previously is one made without jurisdiction and is a nullity. In that case, the learned judge lock the view that Order 22 Rule 3 applied to revisional proceedings under sec. 115 of the Code and he also took the view that Art. 176 Limitation Act applied. With respect to the learned Judge he does not seem to have considered the decision of the Privy Council to which 1 have referred nor did he consider whether revisional proceedings under Sec. 115 can be called an original matter in the nature of a suit. In any case it is difficult to see how Art. 176 Limitation Act would apply because art. 176 refers to the legal representative of a deceased plaintiff or of a deceased appellant; and, in a revisional application you neither have a plaintiff nor an appellant but only an applicant or a petitioner. To my mind it seems that the better view is the view taken by the Lucknow High Court in 15 Luck. 26. Radha Krishna srivastava, J. took the view there that Order 22, Civil Procedure Code does not apply to an application for substitution of the name of a legal representative in place of a deceased party in a revision application, and he further held that there was no rule of limitation governing an application for substitution of parties in a revision application. The learned Judge further points out that the revising Court would require a representative of the deceased applicant or opponent in order to decide the matter and therefore the Court would require a legal representative to be brought on record under Sec. 115 Civil Procedure Code. The learned Judge further took the view that assuming any article of the Limitation Act applied at all, it would not be Art. 177 but Art. 181 which is the residuary article as far as applications are concerned. The learned Judge further took the view that assuming any article of the Limitation Act applied at all, it would not be Art. 177 but Art. 181 which is the residuary article as far as applications are concerned. " ( 9 ) BASED on the aforesaid decision of Bombay High Court, which is pre-1950 decision and is binding on this Court, he submitted that consistently this Court has taken the view that the revision application would not abate and the failure to bring heirs of either party in revisional proceedings before High Court would not result into abatement of the proceedings. He, therefore, submitted that the heirs of Vidyaben R. Patel should be permitted to be brought on record and M. C. A. preferred by the heir of Vidyaben R. Patel for declaration that C. R. A. has abated should be rejected. ( 10 ) MR. Mohit Shah, learned Advocate for heir of deceased Vidyaben has on the other hand submitted that the decision of Bombay High Court in the case of Hafasji (supra) is no longer good law and it should be treated as having been impliedly overruled by the Supreme Court by its decision in the case of Shankar Ramchandra Abhyankar v. Krishnaji dattatreya Bapat, reported in AIR 1970 SC 1 . In the case before the supreme Court the question of abatement of the proceeding was not directly under consideration. The Supreme Court was required to consider as to whether dismissal of revision by the High Court in its revisional jurisdiction would result into merger of the order of the appellate Court into revision order and if so, whether it was open to the petitioner to challenge that appellate Courts order by another proceeding in the High Court under Arts. 226 and 227 of the Constitution of India. In my opinion, various observations made by the Supreme Court in the aforesaid context cannot apply to the context of abatement of revisional proceeding under Order 22 of C. P. C. The principle of merger of orders of inferior Court into that of Supreme Court would not become inapplicable by making any distinction between petition for revision and appeal. The right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. The right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are the existence of relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. When the aid of the High Court is invoked on the revisional side it is done because it is superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of C. P. C. circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute, basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. ( 11 ) BASED on the aforesaid reasoning it is submitted before this Court that even for the purpose of abatement under Order 22 of the C. P. Code no distinction should be made, and if appeal abates on the death of sole respondent when the heirs are not brought on record within prescribed period of limitation, revision must also abate. In my opinion, the aforesaid observations of the Supreme Court are made in the context of doctrine of merger of an order of an inferior Court into the order of superior Court. Appeal or revision is always preferred to a superior Court, and therefore, when revision against an order of inferior Court is dismissed the order of inferior Court merges into the order of superior Court. This very order of inferior Court, thereafter, cannot be challenged by way of another proceeding, and it was in the context of this judicial propriety that the Supreme Court applied the doctrine of merger holding that it is, in substance, the appellate jurisdiction which the High Court exercises while it is exercising revisional powers. The observations made in this context cannot be pressed into service for contending that Order 22 of C. P. Code would apply to revisional proceedings. The observations made in this context cannot be pressed into service for contending that Order 22 of C. P. Code would apply to revisional proceedings. It is required to be noted that in the case of Hafasji (supra) justice Chagla in fact referred to and relied upon the decision of the lordships of Privy Council reported in 22 Indian Appeals 44 and observed that the proceedings spoken of in Sec. 141 of Code refer only to original matters in the nature of suits such as proceedings in probates, guardianships and so forth. Justice Chagla took the view that the revision application cannot be said to be a original matter in the nature of suit and therefore order 22 would not apply to the revision application. Contrary view which was taken by the Madras High Court in. the case of Baswanjanayulu v. Ramalingayya, reported in AIR 1938. Mad; 115 was not approved on the ground that the Madras High Court has not considered the decision of Privy council nor did if consider whether revisional proceedings under Sec. 115 can be called an original matter in the nature of suit. It, therefore, becomes clear that in the absence of any specific provision in the C. P. Code making provisions of Order 22 applicable to revisional proceedings it will not be proper for this Court to hold that revisional proceedings would abate on the failure of the applicant to bring the heirs of deceased respondent on record within prescribed period of limitation. Following the decision of the bombay High Court this Court has consistently taken the view that the c. RA. under Sec. 115 C. P. Code as well as under Sec. 29 of Bombay rent Act would not abate and I therefore hold that on the death of deceased-Vidyaben R. Patel on 5/02/1991 the C. R. A. has not abated. As and when the application is made to bring the heirs and legal representatives of the deceased on record same is required to be granted, and the same is hereby granted. ( 12 ) IN the result, Civil Application Nos. 5143 and 5144 of 1992 are granted and rule in both C. As. is made absolute with no order as to costs. Misc. C. A. No. 1. 575 of 1992. stands rejected as in my opinion C. R. A. No. 1014 of 1988 has not abated. ( 12 ) IN the result, Civil Application Nos. 5143 and 5144 of 1992 are granted and rule in both C. As. is made absolute with no order as to costs. Misc. C. A. No. 1. 575 of 1992. stands rejected as in my opinion C. R. A. No. 1014 of 1988 has not abated. Rule in M. C. A. No. 1575 of 1992 is therefore discharged with no order as to costs. At this stage Mr. M. S. Shah, learned Counsel appearing for the proposed heir of the deceased requests the Court to stay the operation of the order for eight weeks so as to enable the proposed heir to have further recourse to Law. Request is granted. The order is stayed upto 31st of July, 1993. C. As. allowed : M. C. A. rejected. .