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Allahabad High Court · body

2020 DIGILAW 804 (ALL)

Arun Kumar Kedia v. Harvansh Lal Matanheliya

2020-04-23

RAJAN ROY

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JUDGMENT : 1. In this SCC revision, under Section 25 of the U.P. Provincial Small Causes Courts Act, 1887 (herein after referred as Act, 1887), an application for substitution has been filed by the revisionist to which an objection has been raised by Shri Rajeev Kumar Tripathi, learned counsel for the opposite party that it is beyond the period of limitation prescribed under Article 121 of the Limitation Act, 1963. On being confronted learned counsel for the revisionist submitted that Article 121 of the Act, 1963 does not apply to the case at hand as it is a revision and in view of the full bench decision of this Court reported in AIR 1972 Allahabad 504, Chandradev Pandey and others Vs. Sukhdev Rai and others, Article 137 of the Act, 1963 is applicable, according to which, the period of limitation is 3 years, therefore, the application for substitution, considering the date of death, is within the prescribed period of limitation. 2. The Provincial Small Causes Courts Act, 1887 is a preconstitution Act which continues to be in force. The revision at hand has been filed under Section 25 of the said Act, 1887. Section 17 of the Act deals with application of the Code of Civil Procedure to the Court of small causes and in all proceedings arising out of the suits before it, which would include a revision under Section 25. According to Sub-section 1 of Section 17, the procedure prescribed in the Code of Civil Procedure, 1908 shall save in so far as is otherwise provided by that Code or by this Act be the procedure followed in a Court of small causes in all suits cognizible by it and in all proceedings arising out of such suits. The proviso to the said Sub-section is not relevant. A Reference may be made in this regard to Section 7 of the Code of Civil Procedure, 1908 which reads as under:- “7. Provincial Small Cause Courts.- The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887). The proviso to the said Sub-section is not relevant. A Reference may be made in this regard to Section 7 of the Code of Civil Procedure, 1908 which reads as under:- “7. Provincial Small Cause Courts.- The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887). [or under the Berar small Cause Courts Law, 1905], or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law], [or to Courts in [any part of India to which the said Act does not extend] exercising a corresponding jurisdiction] that is to say, - (a) so much of the body of the Code as relates to- (i) suits excepted from the cognizance of a Court of Small Causes; (ii) the execution of decrees in such suits; (iii) the execution of decrees against immovable property; and (b) the following sections, that is to say,- Section 9, Sections 91 and 92, Sections 94 and 95 [so far as they authorise or relate to- (i) orders for the attachment of immovable property, (ii) injunctions, (iii) the appointment of a receiver of immovable property, or (iv) the interlocutory orders referred to in clause (e) of Section 94], and Sections 96 to 112 and 115.” 3. Thus Section 7 prescribes the provisions of CPC which do not extend to the Courts constituted under the Act, 1887. The said provision does not mention Order XXII CPC which relates to substitution of legal representatives in the case of death of plaintiff, defendant etc. Now reference may be made to Order 50 CPC which reads as under in its application in the State of U.P.:- “1. The said provision does not mention Order XXII CPC which relates to substitution of legal representatives in the case of death of plaintiff, defendant etc. Now reference may be made to Order 50 CPC which reads as under in its application in the State of U.P.:- “1. Provincial Small Cause Courts.- The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 )9 of 1887), [or under the Berar Small Cause Courts Law, 1905] or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law], or to Courts exercising the jurisdiction of a Court of Small causes in [under the said Act or Law], [or to Courts in [any part of India to which the said Act does not extend] exercising a corresponding jurisdiction] that is to say- (a) so much of this schedule as relates to- (i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits; (ii) the execution of decrees against immovable property or the interest of a partner in partnership property; (iii) the settlement of issues; and (b) the following rules and orders:- Order II, Rule 1 (frame of suit); Order X, Rule 3 (record of examination of parties); Order XV, except so much of Rule 4 as provides for the pronouncement at once of judgment and Rule 5; Order XVIII, Rules 5 to 12 (evidence); Orders XLI to XLV (appeals); Orders XLVII, Rules 2, 3, 5, 6, 7 (review); Order LI.” 4. A reading of the aforesaid provision shows that it mentions the provisions of CPC which shall not extend to the Courts under the Act, 1887 and it does not include Order XXII CPC as referred herein above. However, the case at hand is a revision and not a suit nor an appeal and it has been the consistent view that Order XXII Rule 2 to 10(a) applies to suits and by virtue of Rule 11 thereof to appeals but these provisions do not apply to a revision under Section 115 CPC as the word revision has not been used therein and it is distinct from a suit or appeal under the CPC. A reference may be made in this regard to the Full Bench decision reported in Mohd. Sadat Ali Khan Vs. A reference may be made in this regard to the Full Bench decision reported in Mohd. Sadat Ali Khan Vs. The Administrator, Corporation of City of Lahore, AIR 1949 Lahore 186; as also other decisions reported in Ram Datt Singh and another Vs. Ajodhia Singh and others, AIR 1952 Allahabad 446; Khuda Bux Khan vs. Maha Nand Tewari and Anr., AIR 1948 Oudh 84; The Union of India, Ministry of Commerce and Industry, Government of India vs. Seth Shanti Sarup and others, AIR 1966 Allahabad 530; Baksho and another Vs. Piaro and others, AIR 1920 Sind 120; and another Full Bench decision in the case of Chandradeo Pandey (supra). In fact, the Full Bench in Chandradeo Pandey, after coming to the conclusion that the provisions of Order XXII do not apply to revisions also considered the question whether any period of limitation has been prescribed in the Code of Civil Procedure for an application to bring the heirs of a deceased party on record in a revision application? After considering the relevant provisions, Full Bench opined that Article 137 of the Schedule contained in the Act, 1963 was applicable to such applications in revisional proceedings under Section 115 CPC which prescribed a limitation of 3 years from the date the right to apply accrues. Having held as above the Full Bench also expressed its opinion about the desirability of requisite amendment in the Rules of the Code on the administrative side so as to prescribe a uniform period of limitation of 90 days for bringing heirs of a deceased party on record even in revision applications. 5. As regards the reliance placed by Shri Tripathi upon the decision of the Supreme Court in Shankar Ramchandra Abhyankar’s (supra) case, in the said case the Supreme Court observed that when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court and it is only one of the modes of exercising power conferred by the statute; 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 did so in the context as to whether the judgment of this Subordinate Court would merge in an order passed by the High Court on the revisional side and therefore it went on to hold that it did not therefore consider that the principle of merger of order of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal. The question being considered by the Supreme Court was as to whether after the revision under Section 115 CPC against the order of the subordinate Court had been dismissed a writ petition challenging the said order of the subordinate Court should have been entertained. It went on to opine that even if the order of the appellate Court had not merged in the order of the single Judge passed in exercise of revisional powers under Section 115 it was of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the Code of Civil Procedure. The context in which the said observations have been made was very different than the context which presents itself before this Court in this case and which was present before the Full Bench in the case of Chandradeo Pandey. Although the term appeal has not been defined in the Code of Civil Procedure there can be no doubt on a reading of Order XXII CPC that the words suit and appeal have been specifically and categorically used therein and the provisions of Rule 2 to 10(a) of Order XXII have been specifically made applicable to appeals vide Rule 11 which is obviously a reference to the appeals prescribed under the Code of Civil Procedure. The appeals under the Code of Civil Procedure are prescribed under different Sections and Orders viz-a-viz revisions. 6. The appeals under the Code of Civil Procedure are prescribed under different Sections and Orders viz-a-viz revisions. 6. A Single Judge Bench of this Court had the occasion to consider the applicability of Order XXII CPC to proceedings other than suits and appeals in the case of Surat and others versus Bhragunath Upadhya and others, 1989 RD 298 and it opined as under:- “Order XXII admittedly by the use of the language was made applicable to the suits or original proceedings but by virtue of Order XXII, Rule 11 it was made applicable to appeals. It is significant while under rule 11 the provisions of Order XXII has been made applicable to the appeals it was not made applicable either to revision or other miscellaneous proceedings. If Order XXII was applicable to all proceedings referred to in section 141 apart from suit or original proceeding there was no need to include appeals by making such provision. This further clarifies that Order XXII since being procedure providing and refer to substantive right like abatement has not been made applicable to other proceedings.” 7. As regards the reliance placed by Shri Tripathi upon a Single Judge Bench decision of the Guwahati High Court reported in (2016) 6 Gauhati Law Reports 774, with respect, when there is a Full Bench decision of this Court, the ratio of which applies to the case at hand, propriety demands that I should follow it, therefore, the said decision of the Guwahati High Court does not help the Counsel for the opposite party especially in view of the reasons given herein above regarding the inapplicability of the decision in Shankar Ramchandra Abhyankar’s case to the issue involved herein. 8. Now on the analogy of the ratio laid down by the Full Bench decision even if the provisions of Order XXII CPC do not apply to revisional proceedings such as an SCC Revision under Section 25 of the Act, 1887, inspite of Section 17 thereof, an order cannot be passed against a dead person, therefore, the legal representatives of a dead party have to be brought on record. Now, as the revision at hand is neither a suit nor an appeal, Article 121 of the Schedule to the Act, 1963 would not apply as the said Article would apply to an application to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent to be made a party in a suit or appeal under the Code of Civil Procedure, 1908 which is not attracted herein. Therefore, in these circumstances on the analogy of the Full Bench decision in Chandradeo Pandey, as this revision under Section 25 of the Act, 1887 is before the High Court, it is Article 137 of the Act, 1963 which applies and the limitation in such circumstances for filing the application for substitution in an SCC revision under Section 25 of the Act, 1887 would be 3 years. It being so, the application of the revisionist is within time. As no objections have been filed to the application for substitution on any other ground nor any other objection has been raised during argument therefore the same is allowed. Let necessary substitution be carried out. List immediately after regular work is resumed in the Courts.