Patna High Court - Orders
Rajmati Devi vs The State Of Bihar on 2 August, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Jurisdiction Case No.59 of 2024
In
Civil Writ Jurisdiction Case No.1777 of 2019
======================================================
Rajmati Devi
... ... Petitioner
Versus
The State Of Bihar
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner/s : Mr. Rajendra Narayan, Sr. Advocate
Mr. Subodh Kumar, Advocate
For the Opposite Party/s : Mr. Kamil Akhatar, AC to AAG-5
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL ORDER
5 02-08-2024Mr. Rajendra Narayan, learned Senior counsel has appeared on the request of this Court as amicus curiae. Mr. Kamil Akhtar, learned AC to AAG-5 appears for the State.
2. Learned Senior counsel has placed before this Court the judgment of the Hon'ble Supreme Court in the case of Puran Singh vs. State of Punjab reported in (1996) 2 SCC 205 (paragraph 5, 6 and 7). Those paragraphs are being reproduced hereunder for a ready reference:-
"5. 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 Patna High Court MJC No.59 of 2024(5) dt.02-08-2024 2/7 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 Karimbhai v. State of Gujarat3; Asstt. Distt. Panchayat Officer v. Jai Narain Pradhan4 ;Krishnalal Sadhu v. State of W.B.5; Sona Ram Ranga Ram v. Central Govt.6 ; Annam Adinarayana v. State of A.P.7) 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. Addl. Director of Consolidation8; Chandmal Naurat Mal v. State of Rajasthan9; Khurjawala Buckles Mfg. Co. v. CST10; Ramchand Nihalchand Advani v. Anandlal Bapalal Kothari11 ; Bharat Board Mills Ltd. v. R.P.F. Commr.12)
3. AIR 1968 Guj 202 : 8 Guj LR 793
4. AIR 1967 All 334 : 1967 All LJ 232
5. AIR 1967 Cal 275 : ILR (1966) 1 Cal 14
6. AIR 1963 Punj 510 : 65 Punj LR 599
7. AIR 1958 AP 16 : 1957 Andh LT 915
8. AIR 1968 Punj 360 : 69 Punj LR 1013]
9. AIR 1968 Raj 20 : 1967 Raj LW 144
10. AIR 1965 All 517 : 1965 All LJ 308
11. [AIR 1962 Guj 21 : (1961) 2 Guj LR 635
12. [AIR 1957 Cal 702 : 61 CWN 694] Patna High Court MJC No.59 of 2024(5) dt.02-08-2024 3/7
6. 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 Barot13. It was said: (SCC p. 715, para 10) "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 Courts 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 warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, 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
13. (1974) 2 SCC 706 : AIR 1974 SC 2105 : (1975) 2 SCR 71 Patna High Court MJC No.59 of 2024(5) dt.02-08-2024 4/7 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 suit in writ petitions, because in many cases the sole object of writ jurisdiction to provide quick and inexpensive remedy to the person who invokes such jurisdiction is likely to be defeated. A Constitution Bench of this Court in the case of State of U.P. v. Dr Vijay Anand Maharaj14 said as follows:
"It is, therefore, clear from the nature of the power conferred under Article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Article 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."
7. 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 elaborate and technical rules laid down in the Code are to be applied to writ proceedings the very object and
14. AIR (1963) SC 946 : (1962) 45 ITR 414 : (1963) 1 SCR 1 Patna High Court MJC No.59 of 2024(5) dt.02-08-2024 5/7 purpose is likely to be defeated. According to us, in view of the conflicting opinions expressed by the different courts, 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. Nandlal13 had said that (SCC Headnote p. 707) 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.
13. (1974) 2 SCC 706 : AIR 1974 SC 2105 : (1975) 2 SCR 71 Patna High Court MJC No.59 of 2024(5) dt.02-08-2024 6/7 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 extraordinary powers by the High Court under Articles 226 and 227 of the Constitution."
3. It is further pointed out that Hon'ble Division Bench of this Court in Civil Review No. 74 of 1992 has taken a view as under.
"As the Civil Review application arises out of a judgment passed by a Bench of this Court under writ jurisdiction, the question of the Civil Review application being barred by limitation does not arise."
4. It is submitted that although the Code of Civil Procedure would not be applicable in the present case but the principles available thereunder are always upon to be taken into consideration on case to case basis. It is submitted that since in this case there is a delay of over four and half years in filing of the restoration application but no explanation has been given to satisfy this Court with regard to the bonafides of the petitioner in not filing the restoration application within a reasonable period, the petitioner may be given an opportunity to file an appropriate affidavit explaining the delay. Patna High Court MJC No.59 of 2024(5) dt.02-08-2024 7/7
5. Having regard to the aforementioned submissions, this Court is of the considered opinion that there is no need to seek any application seeking condonation of delay in terms of the Limitation Act. However, in the present case the petitioner would be required to explain the delay. For this purpose, four weeks time is granted to the petitioner to file supplementary affidavit explaining the delay.
6. List this matter after four weeks under appropriate heading.
(Rajeev Ranjan Prasad, J) Rishi/-
U