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Report No. 54

Recommendation as to section 141 and Order 9

1-O.22. There is no great reason why such applications should not be dealt with under section 141. A clarification on the subject is desirable.

Other proceedings under other Acts

1-O.23. As regards other proceedings under other Acts, the question has mainly arisen with respect to references under section 146, Criminal Procedure Code.

Section 141, C.P.C. and reference under section 146 Cr. P.C.

1-O.24. On the point whether the provisions of section 141, Civil Procedure Code, are attracted to a reference made by the Criminal Court under section 146 Code of Criminal Procedure to a civil court, there was previously a conflict of decisions. In an Andhra Pradesh case,1 proceedings were instituted under section 145, Cr. P.C. The Criminal court made a reference under section 146, Cr. P.C. to a civil court for a decision of the question of possession. The court of first instance came to the conclusion that the provisions of section 141, C.P.C. applied to such a reference, as it was not a proceeding before a civil court within the meaning of section 141, C.P.C. Against this order, a revision was filed.

It was held by the High Court that since a reference under section 146, Cr. P.C. was not a "Proceeding" within the meaning of section 141, C.P.C., the provisions of that section were not attracted to such a reference. Hence, the court was justified in rejecting an application under Order 19, rule 1, C.P.C. made in such a reference. Such an application was hot maintainable. The contrary view2 had been taken by the Allahabad High Court. Amendment as to proceedings under section 146, Cr. P.C. not needed

1. Janga Reddy v. Hafezurmisa Begum, AIR 1965 AP 17.

2. Ram Chandra v. State of Uttar Pradesh, AIR 1965 All 446 (449).

1-O.24A. Now, however, the Supreme Court has held1 that section 141 applies to such cases. Hence, no amendment is required.

1. AIR 1966 SC 1888 (1891): 1966 SCR 393.

Section 141 and proceedings under the Constitution

1-O.25. The question whether an application under Article 226 of the Constitution is a "proceeding in a court of civil jurisdiction" within the contemplation of section 141, has been the subject-matter of controversy.

1-O.26. The Andhra High Court, for example, holds that section 141 applies to such proceedings.1 The Calcutta High Court2 takes a different view.

1. Aunain Adsinarayan v. State of Andhra Pradesh, AIR 1958 AP 16.

2. Bharat Board Mills Ltd. v. Regional Provident Fund Commissioner, AIR 1957 Cal 702.

1-O.27. The Madras High Court1 holds that Order 1 of the C.P.C. cannot be applied to proceedings under Article 226, as section 141, is not attracted.

1. Management of Rainbow Dyeiny Factory, Salem v. Industrial Tribunal, AIR 1959 Mad 137 (141), para. 32.

1-O.28. The Allahabad High Court1 has also held that Order 2, rule 3, C.P.C. does not apply to writ proceedings, and that section 141 cannot be invoked for the purpose.

1. (a) Lima Shankar Rai v. Divl. Superintendent, N. Rly., AIR 1960 All 366.

(b) Khurjawala Buckles Manufacturing Co. v. Commissioner, „Sales Tax, Uttar Pradesh, AIR 1965 All 517 (519), paras. 4 and 8 (Desai C.J. and R.S. Pathak J.).

1-O.29. The Punjab High Court in a 1968 case,1 held that section 141 does not apply. It expressed itself thus-

"What is provided in section 141 is that the procedure laid down in the Code in regard to suits is to be followed so far as it can be, in all proceedings in any court of civil jurisdiction. A High Court when it exercises extraordinary jurisdiction under Article 226 of the Constitution, cannot be said to be a court of civil jurisdiction. This special jurisdiction of a High Court aims at securing a very speedy and efficacious remedy, to a person whose legal or constitutional right has been infringed. If all the elaborate and technical rules of Civil Procedure laid down in the Code, were to be imported through section 141 of the Code into these writ proceedings, their very purpose is likely to be defeated by their becoming bogged down in procedural delays. In short, the provisions of the Code of Civil Procedure do not, in terms, govern writ proceedings under Article 226 of the Constitution."

1. Bhagwan Singh v. Addl. Director, Consolidation, AIR 1968 Punj 360.

1-O.30. However, it was held that the court will, in appropriate cases, apply the principles (as distinguished from the technical provisions) of Order 22, rules 3 and 4 of the C.P.C. in the exercise of its discretion on the grounds of justice, equity and good conscience. In this particular case, the court refused to exercise its discretion in favour of the petitioners, as the petitioners had delayed their applications for substitution without any "explanation worth the name."

The Code of Civil Procedure, 1908 Back

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