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1994 DIGILAW 374 (KER)

K. S. E. B. v. KJ. Joseph

1994-10-06

K.G.BALAKRISHNAN

body1994
Judgment :- Ext. P1 demand notice served by the K.S.E.B. on the petitioner is challenged in this original petition. Petitioner Sri. KJ. Joseph filed the original petition in Ms capacity as the Managing Partner of Grand Hotel. He died on 26-5-1993 and the petitioner in CMP.No.14288/94 contends that the partnership firm of which K.J. Joseph was the managing partner was reconstituted and the petitioner in the CMP is the present managing partner. So he prays that he is to be impleaded as the additional petitioner in the original petition. 2. The 4th respondent the Assistant Executive Engineer of the K.S.E.B. has filed C.M.P.No.141119/94 praying for the dismissal of the original petition as abated on the ground that the original petitioner has died and the cause of action does not survive. 3. I heard the petitioner's counsel and the standing counsel for the K.S.E.B. The short question is whether the petitioner in CMP 14288/94 is to be impleaded as additional petitioner be allowed to pursue the original petition. The counsel for the respondent contended mat the provisions contained in the C.P.C. are not applicable to proceedings under Art.226 of the Constitution, and therefore, the petitioner in the CMP No. 14288/94 is not entitled to come on record by virtue of the provisions contained in O.XXII of C.P.C. Several decisions were cited by counsel on either side and the matter was elaborately argued. 4. In this case, the petition was filed by the Managing Partner of a hotel challenging the demand notice served on him. The managing partner who filed the O.P. died and the present C.M.P.No.14288/94 is filed by the present Managing Partner. The counsel for the respondent raised the contention that on the death of the original petitioner, the original petition has become abated and the present managing partner has no cause of action to proceed with this case. I am unable to accept this contention. The reliefs prayed for in the original petition are not in respect of the personal rights of the then Managing Partner. The decision reported in P. V. Sarma v. S.C. Railway Employees Co. Op. Credit Society (A.I.R 1977 A.P. 319) is a decision which could be applied to the facts of this case. I am unable to accept this contention. The reliefs prayed for in the original petition are not in respect of the personal rights of the then Managing Partner. The decision reported in P. V. Sarma v. S.C. Railway Employees Co. Op. Credit Society (A.I.R 1977 A.P. 319) is a decision which could be applied to the facts of this case. It was held that, in order to decide whether a particular right of action survives to the legal representatives or not, the correct approach is to consider whether the rights claimed is purely a personal one or not. It was held that there was a possibility of the petitioner obtaining further reliefs in case he succeeds in establishing the right which he claims in the particular proceedings cannot be taken into account in determining whether the right to sue survives or not. That was a case where the O.P. was to quash his. removal from service. The legal representatives filed a petition to bring them on record as the reliefs sought for was purely personal in nature. In the present case, the petitioner in CMP.No.14288/94 has got a cause of action to proceed with the proceedings. 5. In the Full Bench decision reported in Teja Singh v. Union Territory of Chandigarh and others ( A.I.R 1982 P & H 169), similar questions were considered. That was a case where the question was whether the principles of res judicata would apply to writ proceedings. The Court held that: "In the matters which have not been specifically dealt with by the Writ Jurisdiction (Punjab & Haryana) Rules (1976), the provisions of the Civil P.C. so far as they can be made applicable, would apply to the proceedings under Art.226 of the Constitution." It was further stated that: "The explanation added to S.141 of the Civil P.C. by the 1976 CPC (Amendment) Act, does not in any way nullify the effect of R.32 of the Writ Rules." The Court was considering the effect of the rules framed by the High Court vis-a-vis the provisions of the C.P.C. 6. Rama Kala and others v. The Assistant Director, Consolidation of Holdings ( A.I.R 1977 P & H 87) is another Full Bench decision on this point. Rama Kala and others v. The Assistant Director, Consolidation of Holdings ( A.I.R 1977 P & H 87) is another Full Bench decision on this point. There the question arose as to whether Art.137 of the Limitation Act would apply to an application for adding or substituting parties to a proceeding under Art.226 of the Constitution. The Court was of the view that provisions contained in O.XXII of C.P.C. as such do not apply and Art.137 of Limitation Act also cannot be applied in its strict form. The Court held: "A petition presented to High Court exercising jurisdiction under Art.226 of the Constitution cannot necessarily be regarded as an application under the Code of Civil Procedure. It is an entirely different matter that while entertaining and deciding such an application this court may draw upon the principles of the Code of Civil Procedure which are based on equity, justice and good conscience but in doing so High Court seldom takes recourse to the penal provisions of the said Code. All that has to be seen is whether the grant of such an application would promote the ends of justice or not". 7. In Hemraj v. I.T. Recovery Officer ( A.I.R 1978 Raj. 184), the question that arose was whether the provisions contained in O.XXII CPC would apply to implead the legal representatives of a deceased partner. The Court held that: "The High Court when it exercises extraordinary jurisdiction under Art.226 of the Constitution, cannot be said to be the Court of Civil Jurisdiction. This special jurisdiction of a High Court aims at securing a very speedy and efficacious remedy. If all the elaborate and technical rules of C.P.C. were to be imported through S.141 of the Code into those writ proceedings, their very purpose is likely to be defeated by the proceedings being delayed Only general rules relating to substitution may be followed on the ground of equity, justice and good conscience but there is no scope for importing the technical rules of limitation contained in Art.120 read with 0. 22, R.4 CPC which provides 90 days time for making an application for the substitution of legal representatives." 9. The principles enunciated in the above quoted decisions support the decision that the provisions of the Civil Procedure Code are not applicable as such in a writ petition. In 1976, when the C.P.C. was amended, an explanation was added to S.141. 22, R.4 CPC which provides 90 days time for making an application for the substitution of legal representatives." 9. The principles enunciated in the above quoted decisions support the decision that the provisions of the Civil Procedure Code are not applicable as such in a writ petition. In 1976, when the C.P.C. was amended, an explanation was added to S.141. S.141 along with explanation is to the following: "S.141: Miscellaneous proceedings: The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. Explanation: In this section, the expression 'proceedings' includes proceedings under O.IX, but does not include any proceedings under Art.226 of the Constitution." In our High Court Rules, there are no specific rules or provisions for impleading or adding parties to writ proceedings filed under Art.226. Under such circumstances, the general provisions of the Civil Procedure Code should be applied. There is nothing wrong in drawing upon the provisions of the C.P.C. which are based on equity, justice and good conscience. The High Court while exercising jurisdiction under Art.226 of the Constitution can apply the provisions of the C.P.C. for rendering speedy and efficacious remedy. In the circumstances of the case the proceedings under Art.226 of the Constitution are generally of civil nature, but it cannot be said to be a 'suit' as ordinarily understood. Nevertheless the elaborate and technical procedure envisaged under C.P.C. for suit and other matters cannot be imported to all the proceedings under Art.226 of the Constitution. If the original petitioner died and the cause of action survives his legal representatives or his successors in interest are entitled to get themselves impleaded in the proceedings. Here the provisions contained in the Limitation Act read with provisions contained in Order XXII of the C.P.C. cannot be strictly enforced against such parties so as to defeat their interest. 10. In the instant case, the petitioner in the O.P. died on 26-5-1993 and the petitioner filed CMP No.14288/94 on 21-6-1994. As the petitioner has got a right to pursue this matter, I allow the CMP 14288/94. The CMP No.14119/94 filed by the K.S.E.B. to treat the original petition as abated is dismissed.