Calcutta High Court (Appellete Side)
Arjun De & Anr vs Employees' P. F. Organization & Ors on 11 December, 2024
D/L
Item No. 21
11.12.2024
KOLE
WPA 10653 of 2019
With
CAN 1 of 2024
With
CAN 2 of 2024
Arjun De & Anr.
-vs.-
Employees' P. F. Organization & Ors.
Mr. Rupak Ghosh,
Mr. R. Dutta,
Mr. S. Mukherjee,
Ms. Shalini Mukherjee
... for the petitioners.
Mr. Sima Sengupta,
.... For the respondents.
IN RE: CAN 1 of 2024 and CAN 2 of 2024:-
1. CAN 1 of 2024 is an application praying for recalling of an order dated 21.12.2024 by which the present writ petition was dismissed for default.
2. CAN 2 of 2024 is an application for condonation of delay in preferring CAN 1 of 2024.
3. Though the Hon'ble Apex Court in the case of Smt. Sudama Devi vs. Commissioner and others, reported in 1983 (2) SCC 1, has held that there is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution of India.
4. But the present prayer for condonation of delay is in respect of an application for restoration of the writ petition and is not in respect of the filing of the writ petition. 2
5. In Puran Singh & Ors Vs State of Punjab & Ors, reported in 1996 AIR 1092, the Supreme Court held:-
"......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 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. Nandlal [(1974) 2 SCC 706 : AIR 1974 SC 2105 : (1975) 2 SCR 71] 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 3 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 extraordinary powers by the High Court under Articles 226 and 227 of the Constitution.
8. 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 4 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.
9. In the case of Ram Kala v. Asstt. Director, Consolidation of Holdings [AIR 1977 P&H 87 : 79 Punj LR 100] , 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 [AIR 1982 P&H 169; (1981) 1 SLR 274 : 84 Punj LR 160] 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 insofar as they were not inconsistent with those Rules the explanation which had been added to Section 141 of the Code by the aforesaid Amending Act, did not in any way nullify 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."
10. 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 5 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 insofar as they are not inconsistent with those rules. In the case of Rokyayabi v. Ismail Khan [AIR 1984 Kant 234 : (1984) 2 Kant LC 114] 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.
11. 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 6 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.
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, 7 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...."
6. Thus, on hearing the learned Advocates for the parties and considering the reasons for delay in preferring the prayer for restoration, this Court relying upon the judgments in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy & Ors. reported in (2013) 12 SCC 649, and Pathapati Subba Reddy (Died) by L.Rs. & Ors. vs. The Special Deputy Collector (LA) reported in (2024) 4 SCR 241 : 2024 INSC 286, allows the application for condonation of delay, on the delay being condoned and on the delay being condoned, the reasons given for being unable to attend the court on the date the matter was dismissed for default is also accepted, in the interest of Justice.
87. The order dated 21.12.2024 is hereby recalled and the Writ Petition being WPA 10653 / 2019 is restored to its original file and number.
8. CAN 1 of 2024 and CAN 2 of 2024 are, thus, allowed.
In Re: 10653 of 2019:-
9. On hearing the learned Advocates for the parties, it appears that a show cause notice dated 21.02.2019 was issued to the writ petitioners in the present case. The writ petitioners replied to the said notice which is also a part of the writ petition.
10. It is submitted that after submission of the said show cause notice, till date there has been no hearing by the respondents and as such the petitioners are being prejudiced, considering the claim of the respondents.
11. Considering the said fact, the learned counsel for the respondent no. 1 is to produce a status report as to the said hearing in the recovery proceeding in this case on the next date.
12. Considering the observations as made above and pending hearing of the said writ application, let the proceedings in R-
Recovery /WB /CAL /25676 /Cert. Case/EPF/17-148/180 dated 01.04.2019 be stayed till 27th January, 2025 or until further order, whichever is earlier.
13. The matter to appear in the Monthly List of January, 2025.
( Shampa Dutt (Paul), J. )