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2008 DIGILAW 90 (RAJ)

Govind Singh v. B. O. R.

2008-01-11

MOHAMMAD RAFIQ

body2008
Honble RAFIQ, J.—The petitioners have in this writ petition challenged the order dated 10th July, 2007, passed by the Board of Revenue, Ajmer, vide which the Board, while rejecting their revision petition, upheld the order dated 14th June, 2006 passed by the Assistant Collector (Headquarters) Ajmer, in the revenue suit filed by the private respondents thereby taking the legal representatives of the original plaintiff on record. 2. Mr. Arun Bhandari learned counsel for the petitioners, has argued that the courts below committed an error by permitting legal representatives of original plaintiff Usman to be brought on record, without any formal application under Order 22, Rule 3, CPC, having been filed in time before the Assistant Collector. The Court further committed legal error in holding that since legal representatives were allowed to be brought on record in the writ petition filed before this Court by the original plaintiff, they shall be treated to have been impleaded in the original suit. Moreover, the application was filed without being supported by Vakalatnama, therefore, the application was not maintainable. The revenue suit was thus, required to be dismissed as abated. The learned counsel further submitted that even if in the revenue suit, the provisions of Rules 2, 4 and 9 of the Order 22 of CPC, are applicable. Merely because legal representatives were mentioned in the cause title of the writ petition, they cannot be treated as having been lawfully brought on record, and that could not save the suit from being dismissed as having abated. Learned counsel for the petitioner, in support of his arguments, has relied on the judgment of this Court in Smt. Bhani vs. Mahaveer Prasad (1997 DNJ (Raj.) 151, and in Baru Singh vs. Babu Ram Sharma (AIR 1997 All. 183, in Saraswati vs. Tulsi Ram (AIR 1971 Delhi 110) and in Mohanlal Ramchandra vs. Union of India ( AIR 1972 Raj. 152 ). 3. On the other hand, Mr. 183, in Saraswati vs. Tulsi Ram (AIR 1971 Delhi 110) and in Mohanlal Ramchandra vs. Union of India ( AIR 1972 Raj. 152 ). 3. On the other hand, Mr. J.P. Gupta, learned counsel for the respondents, opposed the writ petition and argued that the Board of Revenue has taken a just and correct approach in holding that when legal representatives of the plaintiff had already been brought on record in the writ petition before this Court and in the review petition filed before the Board of Revenue itself, the mere fact that they were not formally brought on record in the revenue suit in time would not abate the suit. It was argued that the proceedings before the Board of Revenue and this Court were continuation of original proceedings, therefore, if the legal representatives are brought on record at any stage of the proceedings, the suit cannot be dismissed as abated. In any case, such a hyper technical view of the matter cannot be taken. It was argued that mere non-filing of the Vakalatnama with the application would not make the application incompetent and provisions of Order 3, Rule 4, CPC, cannot be so construed as to make the application not maintainable. Learned counsel also relied on the judgment of the Supreme Court in K. Rudrappa vs. Shivappa ( AIR 2004 SC 4346 ) and argued that in that case also, similar argument that separate prayer for setting aside the abatement of appeal and condonation of delay was not made while praying for the legal representatives to be brought on record and, therefore, the appeal should be dismissed as abated, was rejected by their Lordships of the Supreme Court as being too technical. Learned counsel, therefore, prayed that the writ petition be dismissed. 4. Having heard learned counsel for the parties and perused the material forming part of the record. I find that mere fact that the application was filed in the revenue suit with somewhat delay, would not abate the suit, because already when the legal representatives had otherwise been brought on record before the Board of Revenue in the review petition and this Court in writ petition, delay in the case would not be so fatal as to render the revenue suit incompetent as having abated. Their Lordships of the Supreme Court in K. Rudrappa vs. Shivappa (supra), in what some similar circumstances, while reiterating its earlier view in Ganesh Prasad Badrinarayan Lahoti vs. Sanjeevprasad Jamnaprasad Courasiya (2004(2) WLC (SC) Civil 491 : AIR 2004 SCW 4607) in paras No. 11 and 12 held as under : "11. Very recently, almost an identical case came up for considerations before us. In Ganeshprasad Badrinarayan Lahoti (D) by L.Rs. vs. Sanjeevprasad Jamnaprasad Courasiya and another, Civil Appeal No. 5255 of 2004, decided on August 16, 2004, the appellants heirs and legal representatives of deceased Ganeshprasad were not aware of an appeal filed by the deceased in the District Court, Jalgaon against the decree passed by the trial Court. When the appeal came up for hearing the advocate engaged by the deceased wrote a letter to Ganeshprasad which was received by the appellants and immediately, they made an application for bringing them on record as heirs and legal representatives of the deceased. The application was rejected on the ground that there was no prayer for setting aside abatement of appeal nor for condonation of delay. The appellants, therefore, filed separate applications which were also rejected and the order was confirmed by the High Court. We had held that the applications sought to have been allowed by the courts below. We, therefore, allowed the appeal, set the applications. In our opinion, the present case is directly covered by the ratio in the said decision and the orders impugned in the present appeal also deserves to be set aside. 12. For the reasons aforesaid, the appeal deserves to be allowed and is accordingly allowed. The order passed by the District Judge, Devnagere on August 24, 2002 and confirmed by the High Court on February 4, 2003, are set aside and the appellant and his brothers are ordered to be brought on record as heirs and legal representatives of deceased Hanumanthappa. The appellate court is directed to dispose of the misc. appeal No. 51 of 1990 in accordance with law after affording opportunity of hearing to both the parties. We may observe that we have not entered into merits of the matter and as and when the appeal will come up for hearing, the appellate Court will decide the same strictly on its own merits. In the facts and circumstances of the case, there shall be no order as to costs." 5. We may observe that we have not entered into merits of the matter and as and when the appeal will come up for hearing, the appellate Court will decide the same strictly on its own merits. In the facts and circumstances of the case, there shall be no order as to costs." 5. Here non-filing of the Vakalatnama, particularly when the application was made by the lawyer who was representing the original plaintiff and who continued to represent them subsequently now having been filed Vakalatnama also cannot afford any basis to hold that the revenue suit stood abated. This Court in Rajasthan State Industrial Development & Investment Corporation (RIICO) vs. Ganpat Raj & Ors. (2006(4) RLW 3157), while dealing with a similar objection where application for bringing the legal representatives on record was filed, without being accompanied by Vakalatnama, while interpreting the provisions of O. 3, Rule 4, CPC, held as under : "Now coming to the question of the authority of the advocate who represented Ganpat Rai to file application for bringing his legal representatives on record without filing Vakalatnama on their behalf, it may be stated that all those judgments, which the respondent No. 2 relied upon are with regard to interpretation of Order 3 Rule 4 CPC arose out of civil suit. The law enunciated in such case cannot be applied in writ proceedings under Article 226 of the Constitution of India. The present appeal arises out of a writ petition filed under Article 226 of the Constitution of India. The provisions contained in Order 3 Rule 4 CPC merely provides that no pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power of attorney to make such appointment. Sub-Rule (5) of Order 3 Rule 4 CPC merely requires that no pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating the names of the parties to the suit, the name of the party for whom he appears; and the name of the person by whom he is authorized to appear. Even if we examine the applicability of provisions of sub-rule (5) of Order 3 Rule 4 CPC to the facts of the present case, we find that two applications were filed by the learned counsel on behalf of Hemant Kumar and Ratanlal, both legal representatives of respondent No. 1. All those requirements, which are envisaged in sub-rule (5) of Order 3 Rule 4 CPC, are completely fulfilled in these applications, namely, (a) name of the parties, (b) name of the party for whom he appears and (c) the name of person by whom he is authorized to appear, are very much available in these two applications. The first page of both the applications contains full title of the present appeal and at the end of the application it has been stated that the learned counsel was representing the applicant and in support of such application, affidavit has also been filed. Thus, the application had in all respects complete particulars and fulfilled all the requirements of memorandum of appearance if at all one was needed." 6. Order 22 Rule 10A of the CPC, inter alia, provides as under : "10. Duty of Pleader to communicate to Court death of a party.—Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist." 7. The aforesaid provision was purposely inserted by the Legislature by the Code of Civil Procedure (Amendment) Act, 1976 vide its Sections 73 w.e.f. 1st of February, 1977. The aforesaid provision has carved out an exception to the normal rule contained in Order 3, Rule 4, CPC, inter alia, by providing that whenever a pleader appearing for a party to the suit comes to know about his death, he should inform the Court about it and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between a pleader and the deceased party shall be deemed to subsist. The duty to represent the interest of the deceased party is cast on the pleader for the purpose and has thus been legislatively recognized with a corresponding authority to do so. The duty to represent the interest of the deceased party is cast on the pleader for the purpose and has thus been legislatively recognized with a corresponding authority to do so. It should, therefore, follow if the application under Order 22 Rules 3 and 4 CPC is filed by the same lawyer who has been hitherto representing the deceased plaintiff/defendant, and who continues to represent his legal representatives even thereafter, mere non-filing of Vakalatnama simultaneously therewith, would not render the application incompetent and also would not abate the suit, for such Vakalatnama can be filed thereafter too. 8. Judgments on which reliance has been placed by Shri Arun Bhandari are distinguishable on facts. Ratio thereof, therefore, cannot be applied to the facts of this case. 9. In my considered view, therefore, the impugned orders passed by the Board of Revenue as also the Assistant Collector do not suffer from any such legal infirmity as may justify interference by this Court. The writ petition, which lacks merit, is therefore, dismissed with no order as to costs.