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2014 DIGILAW 1184 (PAT)

State of Bihar v. Ramesh Prasad

2014-12-01

RAMESH KUMAR DATTA, RAVI RANJAN

body2014
ORDER (Per: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA) I.A. No. 7454/2013 with I.A. No. 3807/2014 and I.A. No. 4463/2014: Learned counsel for the appellants is permitted to correct the provision of law in I.A. Nos. 7454/2013 and 3807/2014 to Article 226 of the Constitution of India in the course of the day. 2. The three interlocutory applications have been filed for substitution of respondent no. 1, who is stated to have died in the month of March, 2008, by his heirs and legal representatives and also for setting aside the abatement of LPA No. 1559/2009 and for condoning the delay in filing the two interlocutory applications. 3. The case has a chequered history as the Letters Patent Appeal itself had earlier stood dismissed on account of non-compliance of the peremptory order dated 15.7.2011 for bringing the heirs of respondent no. 1 on the record within three weeks but was subsequently restored by order dated 23.9.2014 passed in MJC No. 5319/2013 with the observation that the Court was satisfied with the reason assigned for non-compliance of the order dated 5.8.2011. 4. Learned counsel for the respondents opposes the prayer for substitution on the ground that the substitution had been filed on 8.10.2013 after more than three years from the death in March, 2008 of respondent no.1. In support of the same learned counsel relies upon a decision of a learned single Judge of this Court in the case of Sukh Bilas Roy & Ors. Vs. The State of Bihar & Ors.: 2013(3) PLJR 857 , in paras 14 and 15 of which it has been held as follows:- “14. Coming once again to the provisions of the Limitation Act, this Court finds that under Article 137 a period of three years has been prescribed for filing any application for which no period of limitation has been provided. The period of 3 years is a long period. If death of a party takes place, then the petitioner/appellant of writ petition/writ Appeal/L.P.A. or the proposed heirs may not be required to file a substitution petition strictly within a period of 90 days, but he/she is required to take steps for substitution within a reasonable period of time. The period of 3 years is a long period. If death of a party takes place, then the petitioner/appellant of writ petition/writ Appeal/L.P.A. or the proposed heirs may not be required to file a substitution petition strictly within a period of 90 days, but he/she is required to take steps for substitution within a reasonable period of time. In the considered opinion of this Court, if the steps are not taken within a maximum period of 3 years, then the prayer for substitution cannot be allowed and the legal rights accrued to the successful respondents or the heirs and legal representatives of a deceased respondent cannot be taken away in a mechanical manner and further they cannot be compelled to contest such proceeding, which has abated due to non-substitution of the heirs and legal representatives of the deceased within a reasonable period of time of 3 years. 15. For coming to the conclusion that a period of three years would be a reasonable maximum period of time for taking steps for substitution of the heirs and legal representatives of a deceased party, I am fortified by a judgment of a Division Bench of this Court (Coram: L.M. Sharma & Manoranjan Prasad, JJ.) in the case of Harakh Nath Singh Vs. Lodha Singh (1978 B.B.C.J. 481). In that case the issue involved was that what would be the period of limitation for filing a substitution petition for substituting the heirs and legal representatives of a deceased party in a Civil Revision application filed under Section 115 C.P.C. and further as to whether the provisions of Order 22 of the Code of Civil Procedure apply and, therefore, whether in terms of Article 120 of the Limitation Act, 1963, a substitution petition is required to be filed within a period of ninety days. After considering large number of judgments, the Division Bench of our own High Court taking a cue from Article 137 of the Limitation Act came to a conclusion that the period of limitation for allowing the prayer for substitution would be three years, as the provisions of Order 22 of the Code of Civil Procedure do not apply to a substitution application in civil revision applications filed under Section 115 of the Code. For better appreciation, I am tempted to quote Paragraph 13 of the aforesaid judgment handed down by the aforesaid Division Bench, which reads as follows:- “In the result it has to be held that the provisions of the Order 22 of the Code of Civil Procedure do not apply to a substitution application in Civil Revision application filed under Section 115 of the Code. An order of substitution can be passed by the Court either under Section 146 or under its inherent powers and in both these cases the period of limitation would be three years under Article 137 of the Limitation Act. Since the present application was filed within six months of the death of the opposite party, and on the very next day of the admission of the case, it is difficult to hold that the petitioners were guilty of such delay which should not be ignored in the Courts discretion.” 5. As against the same, learned counsel for the appellant relies upon a decision of the Supreme Court in the case of Puran Singh & Ors. Vs. State of Punjab & Ors.: (1996) 2 SCC 205 , para-12 of which is quoted below:- “12. As such even if it is held that Order XXII of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substitution the heirs of the deceased defendant or the respondent. However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative. However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative. This power has to be exercised on well known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be. At the same time the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased-respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final.” 6. It is submitted by learned counsel for the appellants that in view of the law laid down by the Apex Court in Puran Singh’s case (supra), the decision of this Court in the case of Sukh Bilas Roy (supra) that the proceedings would abate if the heirs and legal representatives are not substituted within a period of three years, does not appear to have correctly laid down the law. 7. Section 141 of the Code of Civil Procedure clearly lays down that the procedure provided in the said Code is to be followed in regard to suits and are to be made applicable in all proceedings in any Court of civil jurisdiction but by its Explanation while the word “proceedings” includes proceeding under Order IX but does not include one under Article 226 of the Constitution of India. It is thus, evident that the provisions of the Code of Civil Procedure cannot per se apply to writ proceedings although certain principles enunciated therein have been applied in writ proceedings from time to time. It is thus, evident that the provisions of the Code of Civil Procedure cannot per se apply to writ proceedings although certain principles enunciated therein have been applied in writ proceedings from time to time. Thus, there cannot be any automatic application of the provisions of the Code of Civil Procedure in the matter of writ petitions or writ appeals and for the said reason the period of three years prescribed in the residuary Article 137 of the Limitation Act would not also be attracted in proceedings arising out of Article 226 of the Constitution of India including writ appeals. Thus, there cannot be any fixed period so far as substitution of the heirs and legal representatives in a writ petition or writ appeal is concerned. That has also been clearly held by the Supreme Court in Puran Singh’s case (supra) holding that there is no question of abatement and it is for the Court to take into consideration the facts and circumstances of a particular case for the purpose of condoning or not the delay in filing the application for substitution of the legal representatives. That being the legal position, we do not think that it is open to the Courts to prescribe any fixed period for the purpose of filing a substitution petition and for abatement of the writ petition or writ appeal due to non-substitution on that account. 8. Thus, with great respect, in our view the learned single Judge even after considering the relevant paragraphs in Puran Singh’s case (supra) in the case of Sukh Bilas Roy (supra) has not correctly laid down the law. 9. We further find that in Sukh Bilas Roy’s case reliance has been placed on a Division Bench decision of this Court in the case of Harakh Nath Singh Vs. Lodha Singh: 1978 B.B.C.J. 481. The said decision arose out of proceedings under Section 115 of the Code of Civil Procedure and thus the proposition laid down therein would have no application to a writ petition or writ appeal. 10. We are thus, constrained to hold that the law laid down in Sukh Bilas Roy’s case (supra) does not represent the correct position and the said decision to that extent is overruled. 11. 10. We are thus, constrained to hold that the law laid down in Sukh Bilas Roy’s case (supra) does not represent the correct position and the said decision to that extent is overruled. 11. At this stage, we may consider the submission of learned counsel for the appellants that the proceedings having arisen out of the Khas Mahal Manual in which the lease was in favour of the father of the two respondents, therefore, the right to sue survives as one of the heirs of the original lessee was already on the record. Learned counsel for the State does not seriously contest the aforesaid proposition. 12. In the decision of the Full Bench of this Court in the case of Sudama Devi & Ors. Vs. Jogendra Choudhary & Ors.: 1987 PLJR 793 , in paras 16 and 17 it has been held as follows:- “16. Now, if that be so, and, it is not disputed that the legal guardian was in possession at the time of the death of the minor, the presumption of the continuity of the possession is a strong one, which has to be specifically dislodged. Once it is so, the former legal guardian would be in possession of the estate either lawfully or unlawfully. Where the legal title to the property of the minor has passed to another heir, then the possession of the legal guardian may either be on behalf of those legal heirs with consent or he may nevertheless continue in possession in opposition to their claim. Whatever be the situation, for our purpose, it would suffice that on the principle of continuity of possession, the legal guardian, after the death of the minor, remains in the same situation quo the estate, whether lawfully or unlawfully. To be an intermeddler, the legality or the entitlement is irrelevant. Can it possibly be said that such a person, lawfully or unlawfully in possession of the whole of the estate at the moment of the demise of the minor and thereafter, would not be even intermeddling with the same? As has been highlighted earlier, the concept that the intermeddling with the estate is wide one and even a trifling intrusion therein may bring one within the concept of an intermeddler or an executor de son tort. As has been highlighted earlier, the concept that the intermeddling with the estate is wide one and even a trifling intrusion therein may bring one within the concept of an intermeddler or an executor de son tort. To say that the person, who, the day before was lawfully in possession of the estate and who continues to be so in a different capacity, would not at least be an intermeddler therewith, appears to me as wholly untenable. It must, therefore, be held that the legal guardian in such a situation is undoubtedly within the sweep of the phrase “any person who intermeddles with the estate of the deceased”, and, is, therefore, a legal representative, within the inclusive definition of Section 2(11) of the Code of Civil Procedure. Once that is so, it is plain that if he is already on the record of the case, the mere absence of one or the other heirs would not result in the abatement, in view of the long line of authority noticed earlier. Indeed this position is too axiomatic to deserve further elaboration. 17. In fairness to Mr. S.B.N.Singh, learned Counsel for the respondents, one must notice his reliance on Rules 3 and 4 of Order XXII of the Code of Civil Procedure. He rightly emphasized that the language employed therein is not that the heirs or the heirs in Class I or Class II must be made a party in the event of the death of the original party, but only that the legal representatives of the deceased should be so made. It was contended with plausibility that herein the requirement is not of heirship and whether it is of Class I or Class II, but of being a legal representative, and, if a person comes within the ambit of being an intermeddler with the estate and subsequently a legal representative, then he would as well represent the estate as the preferential heir in Class I or the subsidiary heir in Class II of Section 8 of the Hindu Succession Act.” 13. In view of the law laid down in the above decision, it is evident that apart from the fact that one of the heirs of the original lessee continued to remain on the record, it is also to be remembered that respondent no. In view of the law laid down in the above decision, it is evident that apart from the fact that one of the heirs of the original lessee continued to remain on the record, it is also to be remembered that respondent no. 2 being the Class-II heir of deceased respondent no.1, would be at the very least in the category of intermeddler in the estate and thus the right to sue would survive for that reason also. 14. In the facts and circumstances of the case, as pointed out above, this Court by order dated 23.9.2014 passed in MJC No. 5319/2013 has already expressed its satisfaction with the reason assigned for non-compliance of the order dated 5.8.2011; we are also satisfied with the reasons for the delay in filing the substitution petition. The prayer for substitution is, accordingly, allowed. 15. I.A. Nos. 7454/2013, 3807/2014 and 4463/2014 are thus disposed of.