JUDGMENT Hon’ble Ram Surat Ram (Maurya), J.—Civil Misc. Substitution Application No. 229872 of 2012 Heard Sri Ashish Kumar Srivastav, for the applicant in the aforementioned substitution application and Sri H.B. Lal, for the respondents. 2. On the death of Ram Kishan (sole petitioner) on 9.6.1993, this application for substitution has been filed by Narsingh son of Radha Kishan son of Radha Kishan, (as Radha Kishan also died on 14.1.1998), alongwith an application for condonation of delay i.e Civil Misc. Delay Condonation Application No. 229870 of 2012 and an application for setting aside abatement i.e Civil Misc. Application (For Setting Aside Abatement) No. 229871 of 2012. In support of the applications, an affidavit of Narsingh was filed, in which he had stated that he being a villagers had no knowledge about the legal proceedings for the filing of the substitution application within time as such the substitution application could not be filed within time. He came to Allahabad on 1.8.2012 for making inquiry in his case and tried to contact Sri S.K. Saxena, Advocate (who has been elevated to the Bench) but could not contact him. Then he met with Sri Ashish Kumar Srivastav, Advocate and informed him about the death of the sole petitioner and his son. Sri Ashish Kumar Srivastav, Advocate then advised to file substitution application. The applications, affidavit were drafted and prepared on 6.8.2012 and filed on 8.8.2012 without any further delay. 3. Chandan Singh son of Ghasi (respondent-8) filed a Counter-affidavit to the aforementioned Affidavit. In the Counter-affidavit, it has been stated that by virtue of Chapter VIII Rule 38-A, of the High Court Rules, the provisions of Order 22 C.P.C. have been applied to the writ proceedings. For filing of the substitution application, 90 days limitation has been provided but the application has been filed after about 20 years. Radha Kishan son of Ram Kishan (sole petitioner) was not substituted as such Narsingh has no right to be substituted as an heir of Ram Kishan. On expiry on 90 days from the date of death, the writ petition has been abated and 60 days limitation has been provided for filing an application for setting aside abatement. No application for condoning the delay in filing the application for setting aside abatement has been filed as such the application is liable to be rejected as time barred. On expiry on 90 days from the date of death, the writ petition has been abated and 60 days limitation has been provided for filing an application for setting aside abatement. No application for condoning the delay in filing the application for setting aside abatement has been filed as such the application is liable to be rejected as time barred. Due to some dispute being raised in respect of possession over the land in dispute, as due to abatement of the writ petition, stay has been automatically discharged, Narsingh came to Allahabad and filed the substitution application alongwith delay condonation application and the application for setting aside the abatement, which are not maintainable. 4. The substitution application has been hotly contested by the counsel for the respondents. The counsel for the petitioner submitted that Supreme Court has held that illiteracy and poverty are sufficient cause for condonation of delay. He submitted that Radha Kishan and Narsingh had no knowledge of the procedure of the Court for moving substitution application on the death of a party as such the substitution application could not be filed within 90 days of the death. Ignorance of the procedural law is sufficient cause for condonation of delay. He submitted that Sri S.K. Saxena, Advocate (as he was then) was selected in Higher Judicial Services, U.P. and thereafter elevated to the Bench of the High Court as such for a long time there had been no communication from either side. Narsingh came to Allahabad on 1.8.2012 for making inquiry in his case and tried to contact Sri S.K. Saxena, Advocate (who has been elevated to the Bench). Then he met with Sri Ashish Kumar Srivastav, Advocate and informed him about the death of the sole petitioner and his son. Then on the advise of the counsel, substitution application has been filed. The applications, affidavit were drafted and prepared on 6.8.2012 and filed on 8.8.2012 without any further delay. There was no negligence on the part of the applicant. As such delay in filing the substitution application be condoned and abatement be set aside and substitution application be allowed. 5. In reply to the aforesaid arguments, Sri M.B. Lal, submitted that by virtue of Chapter VIII Rule 38-A, of the High Court Rules, the provisions of Order 22 C.P.C. have been applied to the writ proceedings. As such delay in filing the substitution application be condoned and abatement be set aside and substitution application be allowed. 5. In reply to the aforesaid arguments, Sri M.B. Lal, submitted that by virtue of Chapter VIII Rule 38-A, of the High Court Rules, the provisions of Order 22 C.P.C. have been applied to the writ proceedings. Article 120 of the Limitation Act, 1963 provides 90 days limitation for filing of the substitution application. As the substitution application was not filed within 90 days of the death of Ram Kishan, as such, the writ petition was abated under Order 22 Rule 3 (2) C.P.C. as held by the Full Bench of this Court in Harnand Lal v. Chaturbhuj, AIR 1926 ALL 212 (FB) and Aiyappan Pillai Kesava v. Kesavaru Jathavertharu Bhattathiri and others, AIR 1953 TC 545 (FB). Article 121 provides 60 days limitation for filing the application for setting aside abatement under Order 22 Rule 9 C.P.C. As no application has been filed within 60 days nor any application for condonation of the delay in filing the application for setting aside abatement has been filed as such the application for setting aside abatement is liable to be rejected as time barred. He further submitted that Chapter IX Rule 12 (viii) of the High Court Rules requires for filing of the affidavit in support of the substitution application and Chapter IX Rule 12 (xv) requires for filing of the affidavit in support of the application for setting aside abatement. No affidavit has been filed alongwith the application for setting aside abatement as such the application for setting aside abatement is liable to be rejected on this ground also. He further submitted that the respondent has filed Counter-affidavit to the affidavit filed in support of the substitution application but no Rejoinder-affidavit has been filed as such the facts stated in the Counter-affidavit remained uncontroverted and liable to be accepted. The application for substitution has been filed after about 20 years. There is no explanation of the inordinate delay. Radha Kishan son of Ram Kishan (sole petitioner) was not substituted as such Narsingh has no right to be substituted as an heir of Ram Kishan. On expiry of 90 days from the date of death, the writ petition has been abated and 60 days limitation has been provided for filing an application for setting aside abatement. 6. Radha Kishan son of Ram Kishan (sole petitioner) was not substituted as such Narsingh has no right to be substituted as an heir of Ram Kishan. On expiry of 90 days from the date of death, the writ petition has been abated and 60 days limitation has been provided for filing an application for setting aside abatement. 6. I have considered the arguments of the parties. The first question arise as to whether the provisions of Order 22 C.P.C. are applicable to the writ proceedings. The Parliament by Act No. 104 of 1976, added an explanation to Section 141 C.P.C. as follows: Explanation : In this section expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution. 7. The controversy in this respect has been examined by the Supreme Court in Puran Singh v. State of Punjab and others, AIR 1996 SC 1092 . Supreme Court held as follows : “When the High Court exercises extraordinary jurisdiction under Article 226 of the Constitution, it aims at securing a very speedy and efficacious remedy to a person, whose legal or constitutional right has been infringed. If all the elaborate and technical rules laid down in the Code are to be applied to writ proceedings the very object and purpose is likely to be defeated. According to us, in view of the conflicting opinions expressed by the different Courts, Parliament by the aforesaid amending Act introduced the explanation saying that in Section 141 of the Code the expression ‘proceedings’ does not include “any proceedings under Article 226 of the Constitution” and statutorily recognized the views expressed by some of the Courts that writ proceedings under Article 226 of the Constitution shall not be deemed to be proceedings within the meaning of Section 141 of the Code. After the introduction of the explanation to Section 141 of the Code, it can be said that when Section 141 provides that the procedure prescribed in the 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” it shall not include a proceeding under Article 226 of the Constitution. In this background, according to us, it cannot be held that the provisions contained in Order 22 of the Code are applicable per se to writ proceedings. In this background, according to us, it cannot be held that the provisions contained in Order 22 of the Code are applicable per se to writ proceedings. If even before the introduction of the explanation to Section 141, this Court in the case of Babubhai v. Nandlal, AIR 1974 SC 2105 , held that the words “as far as it can be made applicable” occurring in Section 141 of the Code made it clear that, in applying the various provisions of the Code to the proceedings other than those of a suit, the Court has to take into consideration the nature of those proceedings and the reliefs sought for after introduction of the explanation the writ proceedings have to be excluded from the expression ‘proceedings’ occurring in Section 141 of the Code. If because of the explanation, proceeding under Article 226 of the Constitution has been excluded, there is no question of making applicable the procedure of Code “as far as it can be made applicable” to such proceeding. The procedures prescribed in respect of suit in the Code if are made applicable to the writ proceedings then in many cases it may frustrate the exercise of extraordinary powers by the High Court under Articles 226 and 227 of the Constitution. On a plain reading, Section 141 of the Code provides that the procedure provided in the said Code in regard to suits shall be followed “as far as it can be made applicable, in all proceedings”. In other words, it is open to make the procedure provided in the said Code in regard to suits applicable to any other proceeding in any Court of civil jurisdiction. The explanation which was added is more or less in the nature of proviso, saying that the expression ‘proceedings’ shall not include any proceeding under Article 226 of the Constitution. The necessary corollary thereof shall be that it shall be open to make applicable the procedure provided in the Code to any proceeding in any Court of civil jurisdiction except to proceedings under Article 226 of the Constitution. Once the proceeding under Article 226 of the Constitution has been excluded from the expression ‘proceedings’ occurring in Section 141 of the Code by the explanation, how on basis of Section 141 of the Code any procedure provided in the Code can be made applicable to a proceeding under Article 226 of the Constitution? Once the proceeding under Article 226 of the Constitution has been excluded from the expression ‘proceedings’ occurring in Section 141 of the Code by the explanation, how on basis of Section 141 of the Code any procedure provided in the Code can be made applicable to a proceeding under Article 226 of the Constitution? In this background, how merely on basis of Writ Rule 32 the provisions of the Code shall be applicable to writ proceedings?” 8. The Act of the Parliament being a subsequent legislation will override the provisions of Chapter VIII Rules 38-A of the High Court Rules, which is a subordinate legislation. In view of the aforesaid pronouncement of the Supreme Court, if the provisions of Order 22 C.P.C. will not apply to the writ proceedings, then no question of abatement on expiry of 90 days will arise. As such the arguments of the counsel for the petitioner that as no application for condonation of delay in filing the application for setting abatement has been filed as such the application for setting aside abatement is liable to be rejected as time barred is also not liable to be accepted. The Provisions of the Limitation Act, 1963 are applicable to the suit, appeal, various applications as mentioned in the Articles of the it’s schedule. The provisions of Limitation Act, 1963 are not applicable to the writ proceedings as such it will not apply to the interim applications filed in the writ proceedings. 9. So far as the other arguments of the counsel for the respondent that no separete affidavit has been filed in support of the application for setting aside abatement as such it is liable to be rejected on this ground. The provisions of Chapter IX Rule 12 (viii) and Chapter IX Rule 12 (xv) of the High Court Rules requiring for filing of the affidavit in support of the substitution application and the application for setting aside abatement are directory in nature. The purpose for filing of the affidavit is that some one should state the facts on affidavit in a responsible manner. In General Rule Civil, the substitution application are filed with the signature of the plaintiff/appellant containing the verification clause and no separate affidavit is required to be filed. The purpose for filing of the affidavit is that some one should state the facts on affidavit in a responsible manner. In General Rule Civil, the substitution application are filed with the signature of the plaintiff/appellant containing the verification clause and no separate affidavit is required to be filed. Thus filing of one affidavit in support of the application for condonation of delay, application for setting aside abatement and substitution application is sufficient compliance of the provisions of Chapter IX Rule 12 (viii) and (xv) of the High Court Rules. 10. Supreme Court has consistently held that liberal view should be taken in condonation of delay for doing substantial justice. The various cases were considered and followed in Indian Oil Corporation Ltd. v. Subrata Borah Chowleck, 2011 (112) RD 249 (SC). Supreme Court in Ram Sumiran v. DDC and others, AIR 1985 SC 606 , held that poverty and illiteracy are sufficient ground for condonation of delay. One cannot shut the eyes to the fact that in this Court writ petitions are pending for about 35 to 40 years. Due to pendency of the litigations for unlimited period, there used to be no interaction between the Advocates and their client for several years. Some time one litigant has to engage several counsels due to their death one by one and some time two three generations die during pendency and several substitution applications have to be filed. Thus long pendency has created an abnormal situation, as such, due to lack of interaction, neither the counsel could know about the death of the client nor the client could know about the death of their advocates. In such circumstances, in the interest of justice, the Court is required to condone delay invoking it’s discretion. 11. The arguments of the counsel for the respondent that as son of Ram Kishan has not been substituted as such his grand son cannot be substituted is also misconceived. Section 146 C.P.C. provides that the legal representative can carry on proceedings. The grand son is the legal representative of his grand father on the death of his father as such he can carry on the writ proceeding by getting himself substituted in place of his grand father. 12. The arguments that as no rejoinder-affidavit has been filed as such the allegations made in counter-affidavit would be taken as uncontroverted is also not liable to be accepted. 12. The arguments that as no rejoinder-affidavit has been filed as such the allegations made in counter-affidavit would be taken as uncontroverted is also not liable to be accepted. The counsel for the respondents relied upon the judgment of Supreme Court in Mehta Parikh and Company v. Commissioner of Income Tax and others, AIR 1956 SC 554 and judgment of this Court in Raja Himanshu Dhar Singh v. Additional Registrar Co-operative Society and others, AIR 1962 All 439 . In these cases, counter-affidavits have not been filed, as such, the facts stated in the affidavit were held as uncontroverted. Supreme Court in Air India Ltd. v. Vishal Capoor, (2005) 13 SCC 42 , held that a disputed question of fact will normally arise when a petitioner puts forward a case on facts which are controverted by the respondents. In this, the respondents filed Counter-affidavit in reply to the affidavit filed in support of the substitution application. As such the facts are the disputed facts and not uncontroverted facts. The arguments int his respect is misconceived. 13. This Court in Sri Ram Prasad v. The State Bank of Bikaner and others, AIR 1972 All 456 and Smt. Shakuntala Devi v. Banwari Lal and others, AIR 1977 All 551, has held that prayer for substitution can be treated as the prayer for setting aside abatement also. As such on this ground also filing only one application for condonation of delay is sufficient to condone the delay of the two application i.e. substitution application and the application for setting aside abatement. 14. In view of the aforesaid discussions, the arguments raised by the counsel for the respondents is not liable to be accepted. The delay in filing the substitution application as well as the application for setting aside abatement is condoned. The delay condonation application, application for setting aside abatement and substitution application are allowed. The abatement, if any, is set aside. Necessary substitution be incorporated in the writ petition. ————