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2016 DIGILAW 1546 (PAT)

Narvdeshwar Nath Tiwari v. State of Bihar

2016-11-24

BIRENDRA KUMAR, RAMESH KUMAR DATTA

body2016
ORDER : Mr. Ramesh Kumar Datta, J. I.A.No.8583 of 2015 1. The interlocutory application has been filed for substituting the heirs and legal representatives of the private respondent No.6, Bhrigurashan Chaudhari, who is stated to have died on 26.5.2013. 2. In the office notes it is stated that the application is time barred as the respondent No.6 has died on 26.5.2013 and the I.A. has been filed on 13.10.2015. 3. Learned counsel for the appellants relies upon a decision of the Supreme Court in the case of Puran Singh and others v. The State of Punjab and others, AIR 1996 SC 1092 in which it was held that in view of the provisions as contained in Explanation to Section 141 of the C.P.C. the provision of the CPC and in particular that of Order 22 cannot be made applicable to the writ proceedings. Paragraphs 9 and 10 of the said judgment are quoted below:- “9. We have not been able to appreciate the anxiety on the part of the different Courts in judgments referred to above to apply the provisions of the Code to Writ Proceedings on the basis of Section 141 of the Code. When the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all Courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction, have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious. 10. As such even if it is held that order 22 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 substituting 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 representatives. 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.” 4. 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.” 4. In the aforesaid view of the matter, the objection of the office is without any legal substance and it is rejected. 5. It is, accordingly, directed that the name of deceased respondent No.6 Bhrigurashan Chaudhari shall be deleted and in his place his heirs and legal representatives as stated in paragraph-6 of the I.A. shall be substituted. 6. I.A. No.8583 of 2015 is, accordingly, disposed of. 7. Issue notice to the newly added heirs and legal representatives of respondent No.6. Requisites both under ordinary process and registered cover with A/D must be filed within one week, failing which the memo of appeal shall stand rejected without further reference to a Bench. 8. Let a copy of this order be sent to the Registrar General for circulating it to the concerned officials.