Jammu & Kashmir High Court
Islamia College Of Science And Commerce vs Gh. Hassan Balkhi And Anr. on 1 July, 1988
Equivalent citations: AIR1989J&K35, AIR 1989 JAMMU AND KASHMIR 35
ORDER M.L. Bhat, J.
1. This revision is against the order of Sub Judge, CJM, Srinagar dated 30-11-1982. During the pendency of this revision respondent No. 1 who was plaintiff in the court below has died In the court below application for brining his legal representatives on record has been filed In the present revision no application was filed for substitution of respondent No. 1 within the time prescribed in law. Therefore, it is contended by Mr. Farooqi that the revision has abated.
2. Mr. R. N. Kaul has proceeded on the assumption that application for substitution was brought after the expiry of period of limitation prescribed for the substitutioa He submits that revision will not abate because of two reasons : --
i) that he was not informed by the other side about the death of respondent No. 1, therefore, he could not be blamed for having filed an application beyond period of limitation,
ii) that order 22 has no application in revision petition. It is Section 151 of the CPC which will be applicable to the revision petitions for bringing party on record in place of the deceased party.
3. Mr. Mufti Showkat has drawn my attention to various documents and it is stated by him that petitioner had full knowledge about the death of respondent No. 1. Therefore, they have no excuse to offer for filing the application after period of limitation. They have acted with negligence and inactioa The revision has as such abated because in the absence of respondent No. 1 or his legal representatives it cannot be decided.
4. So far as the first point about the knowledge of the death of respondent No. 1 and application having been filed beyond period of time prescribed is concerned, that must be decided against the petitioner herein for the following reasons :
a) The suit has commenced in 1975.
Therefore, it will not be governed by new procedure, that is, amended Civil Procedure Code. Under amended Civil Procedure Code it is obligatory for representatives of the party who has died to inform the adversary about the date of death of the party so as to enable him to make an application for bringing on record the legal representatives under the unamended provisions of the Civil Procedure Code. This obligation is not cast on any of the parties.
b) Mr. R, N. Kaul seems to have been informed about the death of respondent No. 1 well in time and he was aware about the death of respondent No. 1. Therefore, he cannot say that he came to know about his death after expiry pf the period and thereafter he moved an application.
5. The question to be decided is whether the provisions of Order 22, C.P.C. in this revision can be attracted, for bringing the legal representatives of respondent No. 1 on record.
6. Mr. R. N. Kaul has referred to some authorities.
7. A Full Bench of the Allahabad High, Court in Chandradeo Pandey v. Sukhdeo Rai, reported in AIR 1972 All 504, has held that period of limitation for bringing on record the heirs of deceased opposite party is three years and period of limitation as provided for Order 22, CPC is not applicable. The limitation Act provides that six months' limitation from the date of death of plaintiff or deceased appellant which is to begin from date of death of deceased or appellant as the case may be. A residuary article is held applicable to the revision petition by the aforesaid authority and application for substitution of heirs in revision is in fact application under Section 151, CPC and this proposition can admit of no doubt, and limitation for purposes of making such an application would be three years.
8. In Jamna Lal v. Legal Representatives of Khemraj Nathulal, reported in AIR 1979 Rajasthan 179, it was held that Order 22, CPC does not apply to revision application.
If any application for substitution for bringing on record legal representatives of the deceased party is required to be made it can be made under Section 151, C.P.C.
9. Mr. Mufti Showkat Ahmad has submitted that revision petition is a civil proceeding, therefore, Order 22 of the C.P.C.
would apply to such proceedings also and limitation for bringing legal representatives on record is six months from the date of death of the deceased party. He has relied on an authority of this court reported in AIR 1967 J & K 93, titled Rahim v. Karim. In the said authority the application for restoration or proceedings of a suit and even proceedings were held to be proceedings of civil, jurisdiction to which orders could be invoked by force of Section 141, C.P.C.
10. In Smt Kailash Kapoor v. Naresh Chandra Misra, reported in AIR 1972 Delhi 253, an application for bringing legal representatives on record was to be brought within the period of limitation under Order 22, Rule 4, If some representatives are riot brought on record for want of knowledge a fresh application can be made for them, period of limitation whereof is three years.
11. In Depatla Ammannamma v. D. Ramireddy, reported in AIR 1978 Andh Pra 410 it was held that if several of the representatives of deceased defendants are not brought on record, remaining can be brought on record by making an application, limitation whereof is three years.
12. From reading the aforesaid authorities it would appear that application for bringing legal representatives on record in a revision petition can be made under Article 181 of the J & K Limitation Act also. Period for making such an application is three years from the date when the right to apply accrues. Under Article 176 of the Limitation Act, six months period is provided for bringing legal representatives of deceased plaintiff or deceased appellant on record. Six months would run from the date of death of the deceased plaintiff or appellant. However, this article seems to be applicable only to suits and appeals. Therefore, in revision petitions a revision-petitioner can fall back upon residuary article which is Article 181 of the Limitation Act, As to how it is to be applied is discussed by the Allahabad Authority of 1972 (Supra).
13. I am in respectful agreement with the said authority and am of the opinion that residuary article of 181 of the Limitation Act would apply and not the general article of 176 in the present case.
14. The revision petition is not the original proceedings. It is a proceedings of civil nature but cannot be termed as original civil proceedings. It has to be distinguished from appeal and suit.
15. In the appeal and suits, Article 176 of the Limitation Act will be applicable. But the petition of this nature which emanates from the supervisory jurisdiction of the High Court, residuary article of 181 Limitation Act would be applicable.
16. The civil original suit is also before this court. Legal representatives are to be brought in that suit as well Mr. Farooqi has made an application on behalf of the plaintiff in that, suit for bringing the legal representatives on record and that application is on the file of the original suit. Therefore, in revision also those representatives can be heard without even there being a formal order of legal representatives of the deceased being brought on record The entire record is before the court. If the representatives are already on the original suit file, the petition will be deemed to have been filed against them and they will be deemed to be substitution of respondent No. 1. The petitioner was therefore required only to invite the attention of this court about the plaintiff having already made an application in the original suit, which is before the court, and he should have made mention of those persons in the applications which he has filed in the revision petition.
17. In that view of the matter the impugned order could be considered against the persons who are said to be plaintiffs legal representatives and who are brought on record by Mr. Showkat Ahmed Farooqi in the original file.
18. The application of Mr. R. N. Kaul is therefore allowed. He has not made all the representatives as parties but since they are on record in the original suit, therefore, in revision they will be deemed to be substitutes for respondent No. 1, who was the plaintiff. The objection to the maintainability of the revision is overruled.
19. The revision petition is directed to b listed for hearing on merits on a date to be fixed by the Deputy Registrar.