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2016 DIGILAW 480 (GAU)

Manik Chand Patowa v. Sekhar Roy

2016-05-30

N.CHAUDHURY

body2016
ORDER : Heard Mr. GN Sahewalla, learned senior counsel assisted by Ms. R Jain for the petitioner and Mr.S Dey, learned counsel for the opposite party. 2. Mr. G.N. Sahewalla, the learned senior counsel submits that no application for setting aside abatement is necessary as the provision of Order XXII does not apply to a revision petition. Referring to Rule 11 of Order XXII , learned senior counsel would argue that the provision of Order XXII are applicable to suit, however, by Rule 11 thereof it has been extended to the appeals. There is nothing in Order XXII to show that it applies to a revision petition and so the same cannot be applicable. Under such circumstances, there is no question of abatement or limitation for setting aside abatement as well. In support of his contention he has placed reliance on a judgment of this court in the case of Lilawati Gupta & Ors vs. Union of India reported in 2004 (2) GLT 77. In paragraph-33 of the aforesaid judgment, this court made an observation that a revision does not stand on the same footing as an appeal inasmuch as an appeal is nothing but an extension of a suit. Since the provisions of Order XXII have been made applicable to a suit or an appeal and there can be no doubt about this, the provision of Order XXII cannot be extended to a revision. In so doing, reliance have also been placed in the case of Chandradeo Pandey Vs Sukhdeo Rai reported in (AIR 1972 Allahabad 504). That is a judgment of Hon’ble Three Judges of Allahabad High Court who have held the view that there is nothing in the Limitation Act to show that there is a fixed period for substitution of parties in a revision petition. 3. I have given my anxious consideration to the submissions made on the basis of the judgment of this court in the case of Lilawati Gupta(supra) as well as the judgment of the Allahabad High Court in the case of Chandradeo Pandey (supra). In the aforesaid judgment of the Allahabad High Court, the Full Bench confined its consideration to the provisions of Limitation Act only. In the aforesaid judgment of the Allahabad High Court, the Full Bench confined its consideration to the provisions of Limitation Act only. Since there is no mention of revision petition in the third Division under the Schedule of the limitation Act, the Full Bench was of the view that there was no period of limitation for substitution in the revision petition. In the case of Lilawati Gupta (supra) this court has merely relied on the judgment of the Allahabad High Court in this regard and does not appear to have made any discussion as to whether a revision petition should be considered in the same footing as an appeal for the purpose of applying the provisions of Order XXII of the CPC. Perhaps some amount of deliberations is necessary in this regard. This is because under various statutes, revision petitions are preferred before this court as no appeal has been prescribed in the statute. For example, under the Assam Urban Areas Rent Control Act, 1972, only one appeal lies under Section 8 of the said Act but no further appeal lies there against. In view of the Full Bench Judgment of this court in the case of R.C.Basak vs. D.N. Pandit reported in 1984 GHC 37(FJ) no second appeal lies against such appellate judgment as it is not provided for in the statute and so revision petitions are being filed challenging the judgments and decrees passed in appeal under the Act. In a given case, where the revision petition is allowed in favour of the Landlord and a judgment is passed for eviction of the defendant, in that event there is an eviction decree of the High Court which is required to be executed in accordance with law like any other decree of civil court. 4. It may be noted here that in yet another judgment of this court in the case of Abdul Matin Choudhury & Ors vs. Nilyananda Dutta Banik reported in 1997(II) GLT 590 this court held that even during pendency of the revision petition if it is brought on record by a landlord that the tenant did not pay rent in discharge of its obligation under Section 5 of the Assam Urban Areas Rent Control Act, 1972, in that event revisional court is entitled to pass a decree for eviction against a tenant. This is because statutory protection has been given to a tenant under the Assam Urban Areas Rent Control Act, 1972 only so long as he pays rent. This is only an example to show that even in a revision petition, the crusade of the landlord for evicting an undesired tenant from the suit premises continues. Normally, appeal is a continuation of suit but the same does not apply to revision petition. But under aforesaid special circumstances, when the trial court judgments and decrees of eviction are considered in a revision petition under Section 115 of the code of Civil Procedure, the revision appears more like an appeal than an ordinary revision against an interlocutory order. In the case of Ramkaran Das Agarwala vs. Radheshyam Agarwala reported in 1989 GHC 80, a Division Bench of this court has already held that grounds of default and bonafide requirement in an eviction suit under Section 5 of the Assam Urban Areas Rent Control Act 1972 involve jurisdictional facts and so the High Court is required to go into the correctness of such findings of facts. This being the position, in a revision petition filed under section 115 of the Code of Civil Procedure arising from a proceeding under Assam Urban Areas Rent Control Act, the nature of revision petition resembles that of the appeal. Same inference would apply in case of revision petition under Section 6 of the Specific Relief Act, 1963 as well. 5. Having noticed as above, it becomes difficult to accept the view expressed by the Hon’ble Allahabad High Court in the case of Chandradeo Pandey (supra) and judgment of this court in the case of Lilawati Gupta & Ors (supra) that provisions of Order XXII would not apply to a revision petition. In a given case, such a stand may be taken when the revision petition arises from an Interlocutory order but when revision petitions are preferred against the main proceeding such an interpretation may result in prejudice to a party resulting in an anomalous situation which cannot be the purpose of interpretation. This takes us to consider as to whether the law laid down in the case of Lilawati Gupta & Ors ( supra) as well as Chandradeo Pandey (supra) can be made applicable in the present case. 6. This takes us to consider as to whether the law laid down in the case of Lilawati Gupta & Ors ( supra) as well as Chandradeo Pandey (supra) can be made applicable in the present case. 6. It appears that in Order XXII Rule 11, the provisions of order XXII have been made applicable to appeal and it has been provided that in place of plaintiff it will be read as appellant and in case of defendant, it will be read as respondent and in case of ‘suit’ it will be read as ‘appeal’.. Now, what is an appeal ? The Code of Civil Procedure has not defined appeal. Such a question came up before the Hon’ble Privy Council in the case of Nagendra Nath Dey & anr. vs. Suresh Chandra Dey & Ors reported in (AIR 1932 Privy Council 165). That was a judgment of Hon’ble five Judges of the Privy Council and writing the judgment for the Bench, Sir Dinshah Mulla (as His Lordship was at that time) made the following observation: “Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article: "where there has been an appeal," time is to ran from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorney path of execution, which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court, But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of Juno 24, 1920, time only ran against the appellants from August 24, 1922, the date of the appellate Court's decree. They are, therefore, in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on August 4, 1924, was right. 16. Their Lordships will accordingly humbly advise His Majesty that this appeal should be allowed, that the decree of the High Court dated February 16, 1926, should be set aside, and the order of the Subordinate Judge dated August 4, 1924, restored. The respondents Nos. 1 to 4 must pay the cost of the appellants in the High Court and before this Board. “7. Subsequently, in the case of Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat reported in ( AIR 1970 SC 1 ) the question came up before the Hon’ble Supreme Court as to the nature and character of a revision petition. The Hon’ble Supreme Court considered the aforesaid judgment of the Hon’ble Privy Council in the case of Nagendra Nath Dey & anr. Vs. Suresh Chandra Dey & Ors (supra) and having made elaborate analysis held the view that a civil revision is only a form of appeal. Even the principle of merger of orders of inferior courts would not become affected or inapplicable by making any distinction between a petition of a revision or an appeal. Section 115 of the Code of Civil Procedure circumscribes only the limit of the appellate jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the statute and basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. It is only one of the modes of exercising power conferred by the statute and basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. With these observations, the Hon’ble Supreme Court equated a revision petition with an appeal. 8. In view of the aforesaid observations made by the Hon’ble Supreme Court in the case of Shankar Ramchandra Abhyankar (supra) and the discussion of the Privy Council in the case of Nagendra Nath Dey –(supra) it becomes clear that appeal has nowhere been defined in the Code of Civil Procedure and if any proceeding is brought before a superior court which is otherwise a court of appeal challenging any decision of a trial court with a prayer either for revising the same or for setting aside the same in that event it comes under the general classification of appeal. If such an wider connotation of the word ‘appeal’ is accepted in that event, there is no difficulty in applying Rule 11 Order XXII even in case of revision petition and in that event all the provisions of Order XXII including Rule 9 thereof would become applicable in a revision petition. 9. In the case of Shankar Ramchandra Abhyankar (supra), the Hon’ble Supreme Court had considered a decision of the Madras High Court in P.P.P. Chidambara Nadar Vs. C.P.A. Rama Nadar ( AIR 1937 Mad 385 ) in that case, the Madras High Court faced a question as to whether reference to Article 182 (2) of the Limitation Act, 1908, relating to the term ‘appeal’ was used in a restrictive sense so as to exclude revision petitions and the expression ‘appellate court’ was to be confined to a court exercising appellate, as opposed to revisional power. After an exhaustive examination, the Hon’ble Supreme Court observed as follows:- “After an exhaustive examination of case law including the decisions of the privy council mentioned above, the Full Bench expressed the view that Article 180(2) apply to civil revision as well and not only to appeals in the narrower sense of the term as used in the Civil Procedure Code. It was held that High Court in exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure was held to be an order made or passed in appeal within the meaning of Section 39 of the latters patent. Paragraph-5 of the judgment in the case of Shankar Ramchandra Abhyankar is quoted below for ready reference: “5. It would appear that their lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court. This is what was said in Nagendra Nath Dey v. Suresh Chandra Dey 59 I.A. 283, 287. There is no definition of appeal in the CPC, but their Lordship have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term.... Similarly in Raja of Ramnad v. Kamid Rowthen and Ors. 53 I.A. 74. a civil revision petition was considered to be an appropriate form of appeal from the judgment in a suit of small causes nature. A full bench of the Madras High Court in P.P.P. Chidambara Nadar v. C.P.A. Rama Nadar and Ors. A.I.R. 1937 Mad. 385 had to decide whether with reference to Article 182(2) of the Limitation Act, 1908 the term "appeal" was used in a restrictive sense so as to exclude revision petitions and the expression "appellate court" was to be confined to a court exercising appellate, as opposed to, revisional powers. After an exhaustive examination of the case law including the decisions of the Privy Council mentioned above the full bench expressed the view that Article 182(2) applied to civil revisions as well and not only to appeals in the narrow sense of that term as used in the Civil Procedure Code. In Secretary of State for India in Council v. British India Steam Navigation Company 13 C.L.J. 90. In Secretary of State for India in Council v. British India Steam Navigation Company 13 C.L.J. 90. and order passed by the High Court in exercise of its revisional jurisdiction under Section 115, CPC, was held to be an order made or passed in appeal within the meaning of Section 39 of the Letters Patent, Mookerji, J., who delivered the judgment of the division bench referred to the observations of Lord Westbury in Attorney General v. Sillem [1864] 10 H.L.C. 704 and of Subramania Ayyar, J. in Chappan v. Moidin [1898] I.L.R. Mad. 68, 80. on the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States) vol. 2, the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States) vol. 2, the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States) vol. 2, the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below. In the well known work of Story on Constitution (of United States) vol. 2, the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States) vol. 2, the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States) vol. 2, In view of the observation made by the Hon’ble Supreme Court as referred to above, the view taken by a Single Bench of this Court in the case of Lilawati Gupta & Ors (supra) in paragraph-33 and 35 holding that Order XXII would not apply to civil revision does not appear to be binding on me. 10. Section 141 of the Code of Civil Procedure provides that provisions of the Code in regard to suit shall be applicable, as far as applicable, in all proceedings of any court of civil jurisdiction. By making specific mention in the Explanation to this section it has been clarified that a proceeding under Article 226 of the Constitution is not included in this regard. An application under Section 115 of the Code of Civil Procedure , however, has not been so expressly excluded. Even then in the case of Puran Singh Vs. State of Punjab reported in (1996) 2 SCC 205 the Honb’le Supreme Court considered applicability of Order XXII in an application under Article 226 and 227 of the Constitution of India referring to Section 141 of the Code of Civil Procedure. Hon’ble Apex Court held in the case of Bubhri Muljibhai Patel Vs. State of Punjab reported in (1996) 2 SCC 205 the Honb’le Supreme Court considered applicability of Order XXII in an application under Article 226 and 227 of the Constitution of India referring to Section 141 of the Code of Civil Procedure. Hon’ble Apex Court held in the case of Bubhri Muljibhai Patel Vs. Nandlal Khodidas Banot ( AIR 1974 SC 2105 ) that provisions of the CPC in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. While the provisions of Order XXII have been thus extended to all civil proceedings there is no reason as to why the same should not apply to a civil revision which is also a proceeding of civil nature. If right to sue survives to legal heir of a deceased party in a Civil Revision, there is no reason either to exclude such legal heirs from the proceedings by not allowing substitution. 11. All these aforesaid aspects including the referred judgments of the Hon’ble Supreme Court were not brought to the notice to the earlier Single Bench when the judgment in the case of Lilawati Gupta (supra) was passed and consequently those judgments could not be considered. Since, there are preponderant pronouncements of the Hon’ble Apex Court in the field as stated above, those judgments are bindings on me. 12. I am therefore, constrained to hold that provisions of Order XXII of the Code are applicable to a civil revision. Accordingly, this application filed under Order XXII Rule 4 is taken up for consideration. 13. By filing the application under Order XXII Rule 4 read with Section 151 of the CPC , petitioner in the present case has prayed for substitution of the legal heirs of respondent No. 4 ( Srimitikona Roy) who expired on 12.11.2015 leaving behind her son Abhijit Roy as the sole legal heir. The application has been filed on 28.3.2016 praying for setting aside abatement of the appeal as the application for substitution has not been filed in time. 14. It is stated in the body of the application that respondent No. 4 was represented by a counsel earlier but the learned counsel did not inform the court about the death of respondent No. 4 in discharge of his liability under Order XXII Rule 10 A of the CPC. 14. It is stated in the body of the application that respondent No. 4 was represented by a counsel earlier but the learned counsel did not inform the court about the death of respondent No. 4 in discharge of his liability under Order XXII Rule 10 A of the CPC. Such an information was recently furnished and only thereafter the application could be filed. That being the position, there is sufficient cause for not filing the application in time. 15. Mr. S Dey, learned counsel for the opposite party does not dispute the argument put forward by the learned senior counsel for the petitioner. This being the position, I hold the present petitioner was prevented by sufficient cause for not filing the substitution petition in time. Accordingly, the abatement of the revision petition is set aside. 16. The interlocutory application stands disposed of.