Jammu & Kashmir High Court
Harbans Lal Gupta vs Sain Dass And Ors. on 8 March, 1991
Equivalent citations: AIR1991J&K37, AIR 1991 JAMMU AND KASHMIR 37
ORDER
1. This is an application for bringing the legal representatives of respondent Sain Dass on record.
2. Objections have been filed against the application, wherein it is contended that the respondent Sain Dass has died on August 12, 1987 whereas this application has been filed on February 18, 1988, after the expiry of prescribed period of limitation of six months, as provided under Section 176 of the Limitation Act and, as such, the application was not maintainable.
3. Before adverting to the plea of limitation raised by the respondents, it would be appropriate to briefly sum up the facts giving rise to revision petition No. 16 of 1987 in which the present CMP has been filed. The record reveals that one Bahadur Chand was an appellant in civil appeal pending disposal in the court of District Judge, Jammu and after his death the present petitioner Harbans Lal filed an application for being brought on record as legal representative of deceased Bahadur Chand on the basis of a Will. After examining the validity of the Will, the learned District Judge, Jammu vide his order dated December 29, 1986 held that the will in question was not a valid document and, as such, the present petitioner Harbans Lal could not be brought on record as legal representative of the deceased Bahadur Chand (appellant).
4. Aggrieved by this order, the present petitioner has filed Revision Petition No. 16/ 1987 which is pending disposal in this court. During the pendency of the said revision petition, respondent No. 1 (Sain Dass) died and the petitioner has filed this application for bringing his legal representatives on record. This application is opposed on the ground that the same is barred by time as it has been filed after the expiry of six months from the date of death of respondent Sain Dass.
5. An interesting question that falls for determination is whether this application can be held to be barred by time in terms of the provisions of Article 176 of the Limitation Act or whether the applicant could fall back upon the residuary period of limitation, provided under Article 181 of the Limitation Act. Before proceeding further it would be beneficial to extract the relevant Articles as under:--
176:
" Under the same Code to have the legal representatives of a deceased plaintiff or of a deceased appellant made a party.
Six months The date of the death of the deceased plaintiff or appellant."
181:
Applications for which no period of limitation is provided elsewhere in this schedule or by section 48 of C.P.C.
Three years When the right to apply accrue"
6. The learned counsel for the applicant has come up with a very interesting argument that Article 176 of the 1st schedule appended to Limitation Act providing six months period of limitation for making an application to bring the legal representatives of a deceased plaintiff/appellant on record was not attracted in case of a revision petition. He submitted that a revision was not an original proceeding like a suit or an appeal and the words "deceased plaintiff and "deceased appellant" used in Article 176 were indicative of the legislative intent that the period of limitation of six months prescribed therein was only applicable to suit and appeals and not to revisions. He elucidated the contention by pointing out that while periods of limitation had been provided under the Limitation Act for different kinds of suits and appeals, no such period had been provided in case of a revision. He, therefore, urged that any application for bringing the legal representatives of a deceased respondent on record in a revision petition would fall under Article 181 which provides three years period from the date when the right to apply accrues.
7. In rebuttal, the learned counsel for the respondents Mr. Sharma placed reliance on Section 141 and Order 22, Rule 4 of CPC. He urged that under Section 141, CPC was applicable to all types of proceedings in any court of civil jurisdiction. Similarly, any application for bringing the legal representatives on record would fall under Order 22, Rule 4 of CPC irrespective of the nature of proceedings. Mr. Sharma further urged if a contrary view was taken, not only would the revision petition filed by the applicant survive, but it would also have the consequence of ensuing the applicant and substitute him as appellant in the original appeal proceedings, even when his claim in this regard stands rejected vide order dated Dec. 29, 1986 passed by the learned District Judge, Jammu.
8. I have considered and appreciated the rival contentions. At the very outset I must admit that there is much substance in the case set up by Mr. Lehar, learned counsel for the applicant/petitioner. It can admit of no doubt that a revision petition is not an original proceeding. It is at best a proceeding of civil nature and unlike appeal is not a continuation of the original proceeding. It is also well settled that an application for substitution of heirs in a revision petition is an application under Section 151, CPC and not under Order 22(4) of the Civil P.C. There can also be no two opinions that Article 176 provides a period of limitation in case of an application for bringing legal representatives of a "deceased plaintiff" or of a "deceased appellant" on record. The words "deceased plaintiff and "deceased appellant" are significant and/or indicative of the legislative intent that this Article is attracted only in case of applications in a suit or appeal. Once it is conceded that an application for bringing the legal representatives on record of a deceased party in a revision petition falls under Section 151, CPC the necessary corollary is that the period of limitation for all such applications, for which no period is provided elsewhere, is prescribed in Article 181. In terms of this Article period of limitation is three years from the date when the right to apply accrues. In the instant case, if it is assumed that right to apply accrued to the applicant on August 12, 1987 when the respondent Sain Dass is reported to have died, the application having been filed on Feb. 18, 1988 is well within time. I derive support for this view from judgments reported in AIR 1972 All 504 (FB), AIR 1979 Raj 179, AIR 1972 Delhi 253 and AIR 1978 Andh Pra 410.
9. Reliance placed by Mr. Sharma on Section 141, CPC is also misplaced. All that this section envisages is that procedure provided in CPC 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 nowhere mandates that application for bringing legal representatives of a deceased party in a revision petition has of necessity to be made under Order 22, Rule 4 or that it is to be made within six months from the date of death of such party.
10. I am also not impressed by the argument that if this application was allowed it would substitute the applicant as appellant in the pending civil appeal. That is the controversy involved in the revision petition and the fate of the applicant is dependant on the decision of that petition.
11. That being the position, I allow this CMP and direct that the legal representatives of respondent Sain Dass deceased to be brought on record for purposes of disposal of the revision petition. The registry shall make the necessary correction in the title and index of the revision petition No. 16 of 1987 and process the same for hearing on merits on a date to be fixed by it.