Puran
Singh & Ors Vs. State of Punjab & Ors [1996] INSC 93 (18 January 1996)
Singh
N.P. (J) Singh N.P. (J) Venkataswami K. (J) N.P. Singh, J.
CITATION:
1996 AIR 1092 1996 SCC (2) 205 JT 1996 (1) 362 1996 SCALE (1)380
ACT:
HEAD NOTE:
This
appeal has been filed against an order dated 16th March, 1981 passed by the High Court dismissing the Appeal filed on
behalf of the appellants, and affirming the order of dismissal of the writ
petition which had been filed on behalf of Sham Singh, the father of the appellants.
Pursuant
to a notification issued by the State Government under Section 14 of the East
Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 a
scheme was prepared by the authorities in respect of holdings belonging to Sham
Singh, the father of the appellants, Bir Singh, father of Respondent Nos. 2 and
3, Wazir Singh Respondent No.4, Om Prakash Respondent No.5 and others in
village Longowal, Tehsil and District Sangrur.
Objections
were filed in respect of the said scheme including on behalf of Sham Singh and
others against the proposed allotment of land under the scheme. Those
objections were rejected by the Consolidation Officer. The appeal filed on
behalf of Sham Singh was accepted by the Settlement Officer, whereas the
appeals filed on behalf of Bir Singh and others were rejected. Bir Singh filed
further appeals against the orders aforesaid before the Assistant Director,
Consolidation of Holdings, Rohtak, which were rejected. Thereafter revision
applications were filed on behalf of Bir Singh and Wazir Singh which were
allowed on 15th October
1965 by the Additional
Director, Consolidation, who ordered the changes in the allotment of land. Sham
Singh, the father of the appellants filed the aforesaid Writ Petition (Civil
Writ No.931 of 1966) for quashing the order dated 15th October 1965 passed by the Additional Director, Consolidation of
Holdings. During the pendency of the said writ petition, Sham Singh died and
appellants were substituted in his place. When the writ petition was taken up
for hearing by the learned single judge on 14th March 1975 the counsel appearing for Bir Singh
who was Respondent No. 2 to the said writ petition informed the court that the
said Bir Singh had died on 9th December 1971
and no application for bringing his legal representative had been made. It was
pointed out that the impugned orders in the writ petition were in favour of Bir
Singh and as his legal representative had not been substituted, the writ
petition ought to be dismissed. The appellants were not in a position to
contradict the aforesaid assertion in respect of the death of Bir Singh,
Respondent No.2 to the said writ petition. As such, the High Court dismissed
the writ petition filed saying that as Bir Singh had died on 9th December 1971 and no application for bringing the
legal representative of the deceased had been made, the writ petition was not
maintainable in absence of necessary parties. The Letters Patent Appeal filed
against the said order was also dismissed saying that as the appellants had not
taken any steps to bring the legal representative of aforesaid Bir Singh who
was respondent to the writ petition, the writ petition had abated. In this
connection, reliance was placed by the Division Bench, to the Judgment of five
Judges bench of the same court in the case of Teja Singh v. Union Territory of Chandigarh
and others, AIR 1982 Punjab & Haryana 169, where it had been held that
Order 22 of the Code of Civil Procedure (hereinafter referred to as the 'Code')
was applicable to the proceeding under Article 226 of the Constitution of
India, in view of the Writ Rules framed by the said High Court.
On
behalf of the appellants it was urged that Articles 226 and 227 of the
Constitution has vested extra-ordinary power in the High Court, and the procedure
thereof cannot be regulated or controlled by the provisions of the Code because
the power under Articles 226 and 227 of the Constitution has to be exercised
for the ends of justice taking into consideration the facts and circumstances
of a particular case. That power cannot be circumscribed by technical
procedural rules regarding suit or appeal as provided under the Code.
A
personal action dies with the death of the person on the maxim "action personalis
moritur cum persona". But this operates only in a limited class of actions
ex delicto, such as action for damages for defamation, assault or other
personal injuries not causing the death of the party, and in other actions
where after the death of the party the granting of the relief would be
nugatory. (Girja Nandini v. Bijendra Narain, 1967 (1) SCR 93). But there are
other cases where the right to sue survives in spite of the death of the person
against whom the proceeding had been initiated and such right continues to
exist against the legal representative of the deceased who was a party to the
proceeding. Order 22 of the Code deals with this aspect of the matter. Rule 1
of Order 22 says that the death of a plaintiff or defendant shall not cause the
suit to abate if the right to sue survives. That is why whenever a party to a
suit dies, the first question which is to be decided is as to whether the right
to sue survives or not. If the right is held to be a personal right which is
extinguished with the death of the person concerned and does not devolve on the
legal representatives or successors, then it is an end of the suit. Such suit,
therefore, cannot be continued. But if the right to sue survives against the
legal representative of the original defendant, then procedures have been
prescribed in Order 22 to bring the legal representative on record within the
time prescribed. In view of Rule 4 of Order 22 where one of two or more defendandants
dies and the right to sue does not survive against the surviving defendant or
defendants alone, or a sole defendant dies and the right to sue survives, the
Court, on an application being made in that behalf, shall cause the legal
representatives of the deceased defendant to be made a party and shall proceed
with the suit. If within the time prescribed by Article 120 of the Limitation
Act, 1963 no application is made under sub-rule (1) of Rule 4, the suit shall
abate as against the deceased defendant. This Rule is based not only on the
sound principle that a suit cannot proceed against a dead person, but also on
the principle of natural justice that if the original defendant is dead, then
no decree can be passed against him so as to bind his legal representative
without affording an opportunity to them to contest the claim of the plaintiff.
Rule 9 of Order 22 of the Code prescribes the procedure for setting aside
abatement.
The
question with which we are concerned is as to whether the aforesaid provisions
made under Order 22 of the code are applicable to proceedings under Articles
226 and 227 of the constitution. Prior to the introduction of an explanation by
Civil Procedure code (Amendment) Act 1976, Section 141 of the Code was as
follows:
"141.
Miscellaneous proceedings - The procedure provided in this Code in regard to
suits shall be followed, as far as it can be made applicable, in all
proceedings in any Court of civil jurisdiction." The explanation which was
added by the aforesaid Amending Act said:
"Explanation
- In this section, the expression "proceedings" includes proceedings
under Order IX, but does not include any proceeding under Article 226 of the
Constitution." There was controversy between different courts as to
whether the different provisions of the Code shall be applicable even to writ
proceedings under Articles 226 and 227 of the Constitution. Some High Courts
held that writ proceedings before the High Court shall be deemed to be
proceedings "in any court of civil jurisdiction" within the meaning
of Section 141 of the Code. (Ibrahimbhai v. State, AIR 1968 Gujarat 202; Panchayat Officer v. Jai Narain,
AIR 1967 All. 334; Krishanlal Sadhu v. State, AIR 1967 Cal. 275;
Sona
Ram Ranga Ram v. Central Government, AIR 1963 Punjab 510; A. Adinarayana v.
State of Andhra Pradesh, AIR 1958 Andhra Pradesh 16). However, in another set
of cases, it was held that writ proceeding being a proceeding of a special
nature and not one being in a court of civil jurisdiction Section 141 of the
Code was not applicable. (Bhagwan Singh v. Additional Director Consolidation,
AIR 1968 Punjab 360; Chandmal v. State, AIR 1968 Rajasthan 20; K.B.Mfg.Co. v. Sales
Tax Commissioner, AIR 1965 All. 517; Ramchand v. Anandlal, AIR 1962 Gujarat 21;
Messers Bharat Board Mills v. Regional Provident Fund Commissioner and Others,
AIR 1957 Cal. 702) Even before the introduction of the explanation to Section 141
of the Code, this Court had occasion to examine the scope of the said Section
in the case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and others,
AIR 1974 SC 2105 = (1975)2 SCR 71. It was said:
"It
is not necessary for this case to express an opinion on the point as to whether
the various provisions of the Code of Civil Procedure apply to petitions under
Article 226 of the Constitution. Section 141 of the Code, to which reference
has been made, makes it clear that the provisions of the Code in regard to
suits shall be followed in all proceedings in any court of civil jurisdiction
as far as it can be made applicable. The words "as far as it can be made
applicable" make it clear that, in applying the various provisions of the
Code to proceedings other than those of a suit, the court must take into
account the nature of those proceedings and the relief sought. The object of
Article 226 is to provide a quick and inexpensive remedy to aggrieved parties.
Power
has consequently been vested in the High Court to issue to any person or
authority, including in appropriate cases any government, within the
jurisdiction of the High Court, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warrant and certiorari. It is plain
that if the procedure of a suit had also to be adhered to in the case of writ
petition, the entire purpose of having a quick and inexpensive remedy would be
defeated. A writ petition under Article 226, it needs to be emphasised, is
essentially different from a suit and it would be incorrect to assimilate and
incorporate the procedure of a suit into the proceedings of a petition under
Article 226." It can be said that in the judgment aforesaid, this Court
expressed the view that merely on basis of Section 141 of the code it was not
necessary to adhere to the procedure of a quit in writ petitions, because in
many cases the sole object of writ jurisdiction to provide quick and
inexpensive remedy to the person who invokes which jurisdiction is likely to be
defeated. A Constitution Bench of this Court in the case of State of U.P. vs.
Vijay Anand, AIR SC 1963 946 said as follows:- "It is, therefore, clear
from the nature of the power conferred under Art.226 of the Constitution and
the decisions on the subject that the High Court in exercise of its power under
Art.226 of the Constitution exercises original jurisdiction, though the said
jurisdiction shall not be confused with the ordinary civil jurisdiction of the
High Court. This jurisdiction, though original in character as contrasted with
its appellate and revisional jurisdictions, is exercisable throughout the
territories in relation to which it exercises jurisdiction and may, for
convenience, be described as extraordinary original jurisdiction." When
the High Court exercises extraordinary jurisdiction under Article 226 of the
constitution, it aims at securing a very speedy and efficacious remedy to a
person, whose legal or constitutional right has been infringed. If all the eleborate
and technical rules laid down in the Code are to be applied to writ proceedings
the very object and purpose is likely to be defeated. According to us, in view
of the conflicting opinions expressed by the different courts, the Parliament
by the aforesaid amending Act introduced the explanation saying that in Section
141 of the Code the expression "proceedings" does not include
"any proceedings under Article 226 of the Constitution" and
statutorily recognised the views expressed by some of the courts that writ
proceedings under Article 226 of the Constitution shall not be deemed to be
proceedings within the meaning of Section 141 of the Code. After the
introduction of the explanation to Section 141 of the Code, it can be said that
when Section 141 provides that the procedure prescribed in the Code in regard
to suits shall be followed, as far as it can be made applicable "in all
proceedings in any court of civil jurisdiction" it shall not include a
proceeding under Article 226 of the constitution.
In
this background, according to us, it cannot be held that the provisions
contained in Order 22 of the Code are applicable per se to writ proceedings. If
even before the introduction of the explanation to Section 141, this Court in
the case of Babubhai v. Nandlal (supra) had said that the words "as far as
it can be made applicable occurring in Section 141 of the Code made it clear
that in applying the various provisions of the Code to the proceedings other
than those of a suit, the court has to take into consideration the nature of
those proceedings and the reliefs sought for" after introduction of the
explanation the writ proceedings have to be excluded from the expression
"proceedings" occurring in Section 141 of the Code. If because of the
explanation, proceeding under Article 226 of the Constitution has been
excluded, there is no question of making applicable the procedure of Code 'as
far as it can be made applicable' to such proceeding. The procedures prescribed
in respect of suit in the Code if are made applicable to the writ proceedings then
in many cases it may frustrate the exercise of extra-ordinary powers by the
High Court under Articles 226 and 227 of the Constitution.
But
then can it be said that as the provisions of order 22 of the Code are not
applicable to writ petitions, the party who has invoked the jurisdiction of the
High Court by filing such writ petition under Articles 226 and 227 of the
Constitution is at liberty to proceed with such writ petitions against a dead
respondent? Can the High Court pass an order without hearing the legal
representative of such deceased respondent even in cases where right to sue
survives against the legal representative of such deceased respondent? If such
legal representative is not brought on the record, any order passed against the
original respondent after his death shall not be binding on them because they
have not been heard. The order of the High Court shall be deemed to have been
passed against a dead person. If the right of the petitioner to pursue the
remedy survives even after the death of the original respondent to the writ
petition, then on the same principle even the right to contest that claim
survives on the part of the legal representative of the deceased respondent. In
such a situation, after the death of the respondent if the right to sue
survives against the legal representative of such respondent, then the
petitioner has to substitute the legal representative of such respondent before
the writ petition can proceed and can be heard and disposed of. The petitioner
has to take steps for substitution of legal representative within a reasonable
time. It need not be impressed that it will be unreasonable on the part of the
court to implead the legal representative of the deceased respondent after
lapse of several months or years and then to direct them to contest the claim
of the petitioner merely on the ground that after the death of the original
respondent the right title or the interest of such respondent has devolved on
them.
In the
case of Ram Kala and others v. Assistant Director. Consolidation of Holdings. Punjab. Rohtak and others. AIR 1977 Punjab
& Haryana 87 a Full Bench of three Judges held that Article 137 of the
Schedule to the Limitation Act does not apply to an application for adding or
substituting a party to a petition under Article 226 of the Constitution. It
was also held that Section 141 of the Code cannot be pressed into service for
applying the provisions including Order 22 of the Code in a petition under
Article 226 of the Constitution. Later a Full Bench of five Judges of the same
court in the case of Teja Singh v.
Union
Territory of Chandigarh (supra) held that in view of Rule 32 of the Writ Rules
framed by the High Court under Article 225 of the Constitution which provided
that in all matters in which no provision had been made by those Rules, the
provisions of Civil Procedure Code shall apply mutatis mutandis in so far as
they were not inconsistent with those Rules. It was held that the explanation
which had been added to Section 141 of the Code by the aforesaid Amending Act,
did not in any way nullified the effect of Rule 32 of the Writ Rules. Rule 32
of the Writ Rules is as follows:
"32.
In all matters for which no provision is made in these rules, the provisions of
the Code of Civil Procedure, 1908, shall apply mutatis mutandis insofar as they
are not inconsistent with these rules." On a plain reading, Section 141 of
the Code provides that the procedure provided in the said Code in regard to
suits shall be followed "as far as it can be made applicable, in all
proceedings". In other words, it is open to make the procedure provided in
the said Code in regard to suits applicable to any other proceeding in any
court of civil jurisdiction. The explanation which was added is more or less in
the nature of proviso, saying that the expression "proceedings" shall
not include any proceeding under Article 226 of the Constitution. The necessary
corollary thereof shall be that it shall be open to make applicable the
procedure provided in the Code to any proceeding in any court of civil
jurisdiction except to proceedings under Article 226 of the Constitution. Once
the proceeding under Article 226 of the Constitution has been excluded from the
expression "proceedings" occurring in Section 141 of the Code by the
explanation, how on basis of Section 141 of the Code any procedure provided in
the Code can be made applicable to a proceeding under Article 226 of the
Constitution? In this background, how merely on basis of Writ Rule 32 the
provisions of the Code shall be applicable to writ proceedings? Apart from
that, Section 141 of the Code even in respect of other proceedings contemplates
that the procedure provided in the Code in regard to suits shall be followed
"as far as it can be made applicable". Rule 32 of Writ Rules does not
specifically make provisions of Code applicable to petitions under Articles 226
and 227 of the Constitution. It simply says that in matters for which no
provision has been made by those rules, the provisions of the Code shall apply
mutatis mutandis in so far as they are not inconsistent with those rules. In
the case of Rokyaybi v. Ismail Khan, AIR 1984 Karnataka 234 in view of Rule 39
of the Writ Proceedings Rules as framed by the Karnataka High Court making the
provisions of Code of Civil Procedure applicable to writ proceedings and writ
appeals, it was held that the provisions of the Code were applicable to writ
proceedings and writ appeals.
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.
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.
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.
So far
the facts of the present appeal is concerned, Bir Singh died on 9th December, 1971. The dispute related to
consolidation of holding of lands. After the death of Bir Singh the right title
and interest in the land shall be deemed to have devolved on his legal
representative. As such the right to pursue the remedy against them survived
even after the death of Bir Singh. But for pursuing the claim against the legal
representative of Bir Singh, the appellants ought to have taken steps to
substitute him.
Admittedly,
no step was taken on behalf of the appellants till 14th March, 1975. As such the High Court was justified in dismissing the
writ petition and no exception can be taken against the said order. The appeal
accordingly fails and it is dismissed. But there shall be no orders as to cost.
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