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2018 DIGILAW 457 (RAJ)

GANESHMAL v. MAGHA RAM

2018-02-06

ARUN BHANSALI, PRADEEP NANDRAJOG, RAMCHANDRA SINGH JHALA

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JUDGMENT : 1. This case has been referred to the larger bench by the learned Single Judge by order dated 20/12/1996 referring the following issues for consideration: "1. Whether in revision petition limitation shall be deemed to be prescribed under CPC for moving an application for substitution after taking recourse of construction of Section 141 CPC ? 2. Whether in absence of any provisions under Order 22 read with Rule 11 of the said Order, the penal consequences enumerated under sub-rule (2) of Rule 3 and sub-rule (3) of Rule 4, CPC of the said order would not follow? 3. Whether application for substitution in revision can be moved under Section 151 CPC? 4. Whether Article 137 of the Indian Limitation Act prescribes limitation for moving a substitution application in revision petition, if so, its effect ? 5. Whether the field occupied under Article 137 of the Indian Limitation Act, 1963 is the same as it was previously occupied by its corresponding old Article 181 of the Indian Limitation Act, 1908 ?" 2. The issue arose in the circumstances that a revision petition under Section 115 CPC was filed by the petitioners on 11/4/1994. One of the petitioners died on 15/4/1994, an application under Section 151 CPC was filed for bringing on record the legal representatives of deceased petitioner on 24/2/1995 with the submissions that though the application was filed earlier, the same was missing from the record. It was further submitted that the provisions of Order XXII CPC do not apply to the revision petitions and, therefore, the legal representatives be taken on record. 3. The application was contested by the respondent by filing reply. 4. When the application filed under Section 151 CPC seeking substitution came up before the learned Single Judge, Division Bench judgment of this Court in Pandit Kanhiyalal vs. Mangal Singh, (1953) AIR Raj. 69, Full Bench judgment of this Court in Babulal vs. Mannilal, (1953) AIR Raj. 169 and a single bench decision in Jamna Lal vs. Legal Representatives of Khemraj Nathulal, (1979) AIR Raj. 179 were cited by the counsel for the petitioners to contend that the provisions of Order XXII CPC do not apply to revision petitions under Section 115 CPC. 5. 169 and a single bench decision in Jamna Lal vs. Legal Representatives of Khemraj Nathulal, (1979) AIR Raj. 179 were cited by the counsel for the petitioners to contend that the provisions of Order XXII CPC do not apply to revision petitions under Section 115 CPC. 5. Learned Single Judge formulated the issues as noticed hereinbefore and opined that in view of explanation inserted to Section 141 CPC, there could be no difficulty in pressing into service the provisions of Order XXII Rule 3 and 4 CPC in a revision petition, application under Section 151 CPC for substitution can be filed, limitation as provided under Article 137 of the Limitation Act, 1963 ('the Act of 1963') would be applicable and that Article 137 of the Act of 1963 can be extended to other enactments also. As such, the learned Single Judge was also of the opinion that the decisions rendered by the Division Bench in case of Pandit Kanhaiyalal , Full Bench in the case of Babulal and of learned Single Judge in case of Jamna Lal required reconsideration. 6. Learned counsel for the petitioners submitted that the judgments of this Court including the Full Bench judgment answer all the issues raised and the same do not call for any reconsideration. It was submitted that the provisions of Order XXII CPC are not applicable to revision petitions under Section 115 CPC even by virtue of explanation to Section 141 CPC. 7. However, on the issue of limitation for filing application for substitution, it was submitted that the limitation under Article 137 of the Act of 1963 would apply. Various judgments, which already stood considered in the earlier judgments of this Court, were cited. 8. Learned counsel appearing for the respondent submitted that the view taken by this Court in the referred judgments are applicable to the present revision petition, however, it was feebly submitted that in view of provisions of Section 141 CPC, provisions of Order XXII CPC would apply to revision petitions also. 9. We have considered the submissions made by learned counsel for the parties and have thoroughly gone through the three judgments which have been referred for our consideration including the Full Bench judgment in the case of Babulal. 9. We have considered the submissions made by learned counsel for the parties and have thoroughly gone through the three judgments which have been referred for our consideration including the Full Bench judgment in the case of Babulal. The Division Bench and the Full Bench, after thoroughly considering all the issues came to the conclusion that as the revision petition is not in the nature of original proceeding, therefore, the procedure provided in CPC for suits cannot be made applicable to revision petitions. 10. The Full Bench was also of the opinion that as the revision is a discretionary remedy and unless a party is diligent, the High Court would not exercise its discretionary powers in his favour and whether a party is diligent or not is a question of fact to be determined by the Court in each case according to the circumstances and facts of that case. 11. This Court in the case of Jamna Lal also came to the conclusion that Article 137 of the Act of 1963 would have no application. 12. It is well settled that if this Court were to take a view different from what has been taken by the earlier Full Bench in the case of Babulal , the matter is required to be referred to a larger bench, reference in this regard can be gainfully made to Pradip Chandra Parjia v. Pramod Chandra, (2002) 1 SCC 1 . 13. However, having deliberated on the issues, we are firmly of the opinion that the judgment in the case of Babulal does not require any reconsideration and the principles laid down therein hold good despite insertion of explanation to Section 141 CPC. 14. So far as the applicability of Article 137 of the Act of 1963 to the applications filed for substitution of legal representatives is concerned, the Hon'ble Supreme Court in Puran Singh vs. State of Punjab & Ors, (1996) 2 SCC 205 , on coming to the conclusion that on account of explanation to Section 141 CPC, the provisions of Order XXII CPC would not apply to writ petitions under Article 226 of the Constitution of India, categorically laid down the guiding principles regarding substitution and the time within which the application for substitution has to be made, which principles in our opinion can guide the cases under Section 115 CPC as well. It was laid down as under: "12. It was laid down as under: "12. 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 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. " 15. 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. " 15. In view of the above discussion, the issues referred by the learned Single Judge would stand answered in the manner that the issue of substitution of legal representatives in a revision petition under Section 115 CPC would be governed by the law laid down by the Full Bench of this Court in the case of Babulal as well as the principles laid down by Hon'ble Surpeme Court in the case of Puran Singh. 16. The revision petition be listed before the concerned bench for further proceedings.