Gujarat High Court
Shrimant vs Mrunalinidevi on 23 September, 2011
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
Gujarat High Court Case Information System
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CA/4133/2010 35/ 35 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR BRINGING HEIRS No. 4133 of 2010
In
CIVIL APPLICATION No. 3423 of 2009
In
SPECIAL CIVIL APPLICATION No. 4632 of 2006
With
CIVIL
APPLICATION No. 4134 of 2010
In
SPECIAL CIVIL APPLICATION No. 4632 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SHRIMANT
SANGRAMSINH PRATAPSINHRAO GAEKWAD & 1 - Petitioner(s)
Versus
MRUNALINIDEVI
PUAR & 6 - Respondent(s)
=========================================================
Appearance
:
MR
AMAR N BHATT for
Petitioner(s) : 1 - 2.
MR ASHISH H SHAH for Respondent(s) : 1,
MR
MEHUL S SHAH with MR PARTHIV B SHAH for Respondent(s) : 2 - 3.
RULE
SERVED BY DS for Respondent(s) : 5.2.1, 5.2.2, 5.2.3,5.2.4 - 7.
MR
SN THAKKAR for Respondent(s) : 5.2.3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 23/09/2011
COMMON
CAV JUDGMENT
As common questions of facts and law are involved in the above captioned two Civil Applications for substitution of heirs and legal representatives, both the Applications were taken up for hearing together and are being disposed of by this common judgment and order.
Facts relevant for the purpose of deciding the Civil Applications for substitution of heirs and legal representatives can be summarised as under :-
CIVIL APPLICATION No.4133 of 2010 In CIVIL APPLICATION No. 3423 of 2009 In SPECIAL CIVIL APPLICATION No. 4632 of 2006 Civil Application No.4133 has been preferred by the original petitioners in Civil Application No.3423 of 2009 in Special Civil Application No.4632 of 2006. Civil Application No.3423 of 2009 is for interim relief like appointment of Receiver in respect of the suit properties and also for necessary directions upon the respondents to maintain status quo in respect of the suit properties. Special Civil Application No.4632 of 2006 has been preferred by the applicants, challenging the order of the Additional District Judge and Presiding Officer, Fast Track Court No.5, Vadodara dated 15th February 2006 passed in Civil Misc. Appeal No.133 of 2003, whereby the appellate Court set-aside the order passed by the Civil Judge, Vadodara below Exh.5 in Regular Civil Suit No.640 of 2003 dated 30th August 2003.
It appears that during the pendency of Special Civil Application No.4632 of 2006, respondent no.5 Smt.Lalitadevi Kirdutt passed away on 1st March 2010. Accordingly, the applicants herein, the original petitioners preferred Civil Application No.4133 of 2010 i.e. the present Application on 21st April 2010 for substitution of heirs and legal representatives of late Smt.Lalitadevi Kirdutt, original respondent no.5. Proposed respondent nos.5/1 to 5/4 have been shown as heirs and legal representatives of late Smt.Lalitadevi Kirdutt.
The application for substitution of heirs and legal representatives could have been allowed straightway but there has been a strong objection at the end of respondent nos.2 and 3 and the proposed heirs and legal representatives of late Smt.Lalitadevi Kirdutt i.e. 5/1 to 5/4. The objection raised is of a very peculiar nature. According to the learned counsels appearing for respondent nos.2 and 3 and the proposed heirs and legal representatives i.e. 5/1 to 5/4, the present Applications are not maintainable as the petitioners have not substituted the heirs and legal representatives of late Smt.Lalitadevi, original respondent no.5 in the main Regular Civil Suit No.640 of 2003 pending in the Court of Civil Judge (S.D.), Vadodara. As per the contention of the learned counsels for respondent nos.2 and 3 and the proposed heirs and legal representatives i.e. 5/1 to 5/4, without first bringing the heirs on record of the original suit under the provisions of Order 22, Rule 4 CPC, the present Applications directly in proceedings under Article 226 and/or 227 would not be maintainable.
CIVIL APPLICATION No.4134 of 2010 in SPECIAL CIVIL APPLICATION NO.4632 OF 2006 Civil Application No.4134 has been preferred for bringing heirs and legal representatives in the main petition i.e. Special Civil Application No.4632 of 2006.
I have heard learned counsel Mr.Amar N.Bhatt appearing for the applicants, learned counsel Mr.Mehul S.Shah appearing with learned advocate Mr.Parthiv Shah for respondent nos.2 and 3 and learned counsel Mr.S.N.Thakkar appearing for the proposed heirs and legal representatives i.e. 5/1 to 5/4.
In this matter, the following question of law falls for my consideration :-
During the pendency of proceedings under Article 226 and/or 227 of the Constitution of India arising from an interlocutory order passed by a civil court in a suit proceedings if any one of the respondents dies then, whether an application for substitution of heirs and legal representatives of the deceased respondent can be preferred directly without first substituting the heirs and legal representatives of the deceased respondent in the main suit pending before the Civil Court or, whether it would be incumbent upon the petitioner to first substitute the heirs and legal representatives of the deceased respondent in the main suit proceedings and after substitution can file an application in the proceedings pending before the High Court under Article 226 and/or 227 of the Constitution of India.
Learned counsel for the applicants would submit that even without substituting the heirs and legal representatives in the main suit an application for substitution can be preferred in the proceedings pending before the High Court and if the heirs and legal representatives are brought on record in the proceedings before the High Court, then the same would enure to the benefit of the parties in the original suit. Learned counsel would submit that the order passed by the appellate Court under the provisions of Order 43, Rule 1 CPC has been challenged by filing a writ petition under Article 226 and/or 227 of the Constitution of India because of the amendment in Section 115 CPC. He would submit that but for the amendment the order could have been challenged by filing Civil Revision Application under Section 115 CPC.
He would submit that if Civil Revision Application under Section 115 CPC would have been preferred and during the pendency of such Revision Application under Section 115 CPC if one of the respondents would have died and if heirs and legal representatives would have been substituted in the said Revision Application, then the substitution would have enured to the benefit of the parties in the original suit without first substituting the heirs and legal representatives in the original suit. He would submit that the same analogy would apply even in proceedings under Article 226 and/or 227 of the Constitution of India.
In support of his contention, he has relied upon the following case-law of the Supreme Court :-
Rangubai Kom Sankar Jagtap v/s. Sunderabai Bhratar Sakharam Jedhe and others [AIR 1965 SC 1794] N.Jayaram Reddi and another v/s. The Revenue Divisional Officer and Land Acquisition Officer, Kurnool [AIR 1979 SC 1393].
He has also relied upon a judgment rendered by Karnataka High Court in the case of Kuttappa, v/s. Katrikolli Somaiah, reported in ILR 1991 Karnataka 3985, in which learned Single Judge of Karnataka High Court relied upon a Privy Council's decision reported in the case of Brij Indar Singh v/s. Kanshi Ram [AIR 1917 PC 156].
Per contra, learned counsel for the respondent opposing the Applications for substitution of heirs and legal representatives contended that assuming for the moment that a revision would have been maintainable, but for the amendment effected in the year 2002, a revision cannot be said to be continuation of a suit unlike an appeal, which is continuation of a suit. Learned counsel would submit that in an appeal heirs and legal representatives of the deceased respondent can be substituted directly without first substituting them in the main suit as the appeal being in continuation of the suit, but a Revision Application would not be a continuation of the main suit. Similarly, proceedings under Article 226 and/or 227 of the Constitution of India also cannot be termed as continuation of the original suit. Learned counsel would further submit that if an interlocutory order is passed by a Civil Judge and if the matter reaches to the High Court against the said interlocutory order and during the pendency of the proceedings before the High Court arising from interlocutory order passed in civil suit if one of the respondents dies, then the petitioner is obliged to first substitute the heirs and legal representatives of the deceased respondent in the suit, and thereafter only, can prefer an application for bringing heirs and legal representatives in the proceedings pending before the High Court. Counsel further submitted that an application is already preferred in the main suit for substitution and, therefore, applicants must pursue suit application and obtain necessary orders from the civil court.
In the case before the Privy Council, it was ruled that introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages, even if it be made on an appeal from a mere interlocutory order. In that case, legal representatives of the deceased party were substituted in an application for revision pending in the Chief Court against an order of the trial Court directing the parties to produce certain documents. No application was, however, made for substitution of the legal representatives of the deceased in the suit. In holding that the suit did not abate, their Lordships of the Judicial Committee observed as follows :-
"The plaintiff as representative of the original plaintiff, and the defendant's representatives of Joti Lal, had been introduced in the Chief Court. No doubt that was only done in the course of an interlocutory application as to the production of books. But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages and the prayer, which seems to have been made ob majorem cautelam, by the plaintiff, in his application to the District Judge Prenter under Section 365, was superfluous and of no effect. Coates, the judgment-debtor was only formally called, and the non-presence of his representatives would afford no ground for the abatement of the suit."
I am of the view that the position of law does not seem to be no longer res integra. Under similar circumstances, the Supreme Court in the case of Rangubai Kom Sankar Jagtap (supra) has held that the order bringing on record the legal representatives at one stage of the suit would enure to the benefits of the parties in the original suit despite the fact that the said proceeding was directed against an interlocutory order passed by the original court. Therein the Apex Court referred to the decision of the Privy Council rendered in the case of Brij Indar Singh (supra). It has been observed by the Privy Council at page 161 of the judgment as hereunder :-
"But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages, and the prayer, which seems to have been made ob mojorem cautelam, by the plaintiff, in his application to the District Judge Prenter under Section 365, was superfluous and of no effect. Coates, the judgment-debtor was only formally called, and the non-presence of his representatives would afford no ground for the abatement of the suit."
The Supreme Court in Rangubai Kom Sankar Jagtap (supra) has explained the provision of Order 22 of the Civil Procedure Code and held as follows :-
"9.
Let us now consider the question on principle. A combined reading of Order 22, Rr. 3, 4 and 11 of the Code of Civil Procedure shows that the doctrine of abatement applies equally to a suit as well as to an appeal. In the application of the said Rr. 3 and 4 to an appeal, instead of "plaintiff" and "defendant", "appellant" and "respondent'' have to be read in those rules. Prima facie, therefore, if a respondent dies and his legal representatives are not brought on record within the prescribed time, the appeal abates as against the respondent under R. 4, read with R. 11, of O. 22 of the Code of Civil Procedure. But there is another principle recognized by the Judicial committee in the aforesaid decision which softens the rigour of this rule. The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will ensure for the benefit of all the subsequent stages of the suit. The application of this principle to different situations will help to answer the problem presented in the present case. (1) A filed a suit against B for the recovery of possession and mesne profits. After the issues were framed, B died. At the stage of an interlocutory application for production of documents, the legal representatives of B were brought on record within the time prescribed. The order bringing them on record would enure for the benefit of the entire suit. (2) The suit was decreed and an appeal was filed in the High Court and was pending therein. The defendant died and his legal representatives were brought on record. The suit was subsequently, remanded to the trial Court. The order bringing the legal representatives on record in the appeal would enure for the further stages of the suit. (3) An appeal was filed against an interlocutory order made in a suit. Pending the appeal the defendant died and his legal representatives were brought on record. The appeal was dismissed. The appeal being a continuation or a stage of the suit, the order bringing the legal representatives on record would entire for the subsequent stages of the suit. This would be so whether in the appeal the trial Court's order was confirmed, modified or reversed. In the above 3 illustrations one fact is common, namely the order bringing on record the legal representatives was made at one stage of the suit, be it in the suit or in an appeal against the interlocutory order or final order made in the suit, for an appeal is only a continuation of the suit. Whether the appellate order confirms that of the first Court, modifies or reverses it, it replaces or substitutes the order appealed against. It takes its place in the suit and becomes a part of it. It is as it were the suit was brought in the appellate Court at one stage and the orders made therein were made in the suit itself. Therefore, that order enures for the subsequent stages of the suit.
10. But the same legal position cannot be invoked in the reverse or converse situation. A suit is not a continuation of an appeal. An order made in a suit subsequent to the filing of an appeal at an earlier stage will move forward with the subsequent stages of the suit or appeals taken therefrom; but it cannot be projected backwards into the appeal that has already been filed. It cannot possibly become an order in the appeal. Therefore, the order bringing the legal representatives of the 7th respondent on record in the final decree proceedings cannot enure for the benefit of the appeal filed against the preliminary decree. We, therefore, hold that the appeal abated so far as the 7th respondent was concerned."
From the aforesaid, it is clear that, when an appeal has been filed against an interlocutory order made in a suit and during pendency of the appeal a party dies and his/her legal representatives are brought on record, the order bringing the legal representatives on record would enure for the subsequent stages of a suit.
The question which arises now is, whether the provisions of Order 22 CPC would apply to revision proceedings or not ? This question has already been answered by this High Court in the case of Jagdishbhai J.Desai v/s. Vidyaben Rambhai Patel (Decd.) through her heirs Khevinaben R.Patel, reported in 1993(2) GLR 1635, wherein the learned Single Judge held as under :-
"The observations of the Supreme Court are made in the context of doctrine of merger of an order of an inferior Court into the order of superior Court. Appeal or revision is always preferred to a superior Court, and therefore, when revision against an order of inferior Court is dismissed the order of inferior Court merges into the order of superior Court. This very order of inferior Court, thereafter, cannot be challenged by way of another proceeding, and it was in the context of this judicial propriety that the Supreme Court applied the doctrine of merger holding that it is, in substance, the appellate jurisdiction which the High Court exercises while it is exercising revisional powers. The observations made in this context cannot be pressed into service for contending that Order 22 of Civil Procedure Code would apply to revisional proceedings. It is required to be noted that in the case of Hafasji (AIR 1946 Bom.201) Justice Chagla in fact referred to and relied upon the decision of the Lordships of Privy Council reported in 22 Indian Appeals 44 and observed that the proceedings spoken of in Sec.141 of Code refer only to original matters in the nature of suits such as proceedings in probates, guardianships and so forth. Justice Chagla took the view that the revision application cannot be said to be an original matter in the nature of suit and therefore Order 22 would not apply to the revision application.....It, therefore, becomes clear that in the absence of any specific provision in the Civil Procedure Code making provisions of Order 22 applicable in revisional proceedings it will not be proper for this Court to hold that revisional proceedings would abate on the failure of the applicant to bring the heirs of deceased respondent on record within prescribed period of limitation. Following the decision of the Bombay High Court this Court has consistently taken the view that the Civil Revision Application under Sec.115 of Civil Procedure Code as well as under Sec.29 of Bombay Rent Act would not abate and I, therefore, hold that on the death of deceased-Vidyaben R.Patel on February 5, 1991 the Civil Revision Application has not abated. As and when the application is made to bring the heirs and legal representatives of the deceased on record same is required to be granted, and the same is hereby granted."
Thus, it is clear that provisions of Order 22 CPC will not be applicable in revisional proceedings. This position of law as I have tried to explain is on the assumption that what would have been the position if a Civil Revision Application would have been preferred by the petitioner under Section 115 CPC and during the pendency of such Civil Revision Application if respondent no.5 would have passed away then what would have been the position.
However, what is important in the present case is as to whether substitution of legal representatives in a revision application whether would enure for the subsequent stages of the suit or not. This question has been answered by the Supreme Court in the case of N.Jayaram Reddi and another (supra). In paragraph 40(4) of the judgment, the Supreme Court held as under :-
"(4) A substitution of legal representatives of the deceased party in an appeal or revision even against an interlocutory order would enure for the subsequent stages of the suit on the footing that appeal is a continuation of a suit and introduction of a party at one stage of a suit would enure for all subsequent stages of the suit."
In the present case, as stated above, since a Civil Revision Application under Section 115 CPC would now not be maintainable in view of the amendment, a petition under Article 227 of the Constitution of India would be maintainable.
At the outset, the first question which needs consideration is whether Order 22, Rule 4 of the C.P.C. is applicable to petitions filed under Article 227 of the Constitution of India. The Apex Court had occasion to consider this aspect of the matter in the case of (Puran Singh v. State of Punjab) 1996(2) SCC 2. The Apex Court held that when High Court exercises extraordinary jurisdiction under Article 226 of the Constitution of India, 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 Civil Procedure Code are to be applied to writ proceedings the very object and purpose is likely to be defeated. The Apex Court observed that in view of the conflicting views expressed by different Courts, Parliament by the aforesaid Amending Act introduced an explanation saying that in section 141 of the CPC expression "proceedings" does not include "any proceeding 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 explanation to section 141, it can be said, when section 141 provides procedure prescribed in the Code in regard to suit 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.
At the same time, the Apex Court, while recognising above legal position, held that thought it cannot be said that provisions contained in Order 22 of the Code are applicable per se to writ proceedings or writ appeals, it does not mean that the petitioner or appellant in such writ petition or writ appeal can ignore the death of the respondent, if the right to pursue remedy even after the death of the respondent survives. The Apex Court ruled that after the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such deceased respondent within a reasonable time. For the purpose of holding as to what would be the reasonable time, the Apex Court further ruled that the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased respondent. However, 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 consideration of a particular case for the purpose of condoning delay in filing the application for substitution. At this juncture, it will not be out of place to mention that the Apex Court in the case of Puran Singh (supra) was dealing with the proceedings under Articles 226 and 227 of the Constitution of India, even then the necessity of moving an application for substitution was recognised.
But the case in hand is a petition filed under Article 227 of the Constitution of India which is well within the sweep of section 141 of the CPC. Therefore, the provisions of Order 22 of CPC would be very much applicable to the petitions filed solely under Article 227 of the Constitution. Alternatively, assuming it to be not applicable for the sake of argument, the same cannot escape the necessity of moving an application for substitution of bringing the legal heirs on record. In view of death of respondent no.5, it was obligatory on the part of the petitioner to substitute name of the deceased respondent no.5 in the petition filed under Article 227 of the Constitution of India.
Though I have considered the ratio as explained and propounded by the Supreme Court in Puran Singh's case (supra), I would still like to reproduce the exact paragraphs of the judgment in Puran Singh's case in so far as applicability of provisions of Order 22 CPC to a writ petition under Article 226 of the Constitution of India or a writ petition under Article 227 of the Constitution of India is concerned, which read as under :-
"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 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 v. State, AIR 1968 Gujarat 202; Panchayat Officer v.Jai Narain, AIR 1967 All 334:
Krishanlal Sadhu v.State, AIR 1967 Cal 275; Sona Ram Ranga Ram v. Central Government, AIR 1963 Punjab 510; A.Adinarayana v. State of Andhra Pradesh, AIR 1958 Andhra Pradesh 16. 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. Additional Director Consolidation, AIR 1968 Punjab 360; Chandmal v. State, AIR 1968 Rajasthan 20; K.B.Mfg. Co. v. Sales Tax Commissioner, AIR 1965 All 517; Ramchand v. Anandlal, AIR 1962 Gujarat 21; Bharat Board Mills v. Regional Provident Fund Commissioner, AIR 1957 Cal
702).
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 Barot, AIR 1974 SC 2105 : (1975) 2 SCR 71. It was said :
"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 of 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 petition, 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 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. Vijay Anand, AIR 1963 SC 946 said as follows :- (Para 9) "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".
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, the 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, (AIR 1974 SC 2105) (supra) had said that 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. 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 extra-ordinary powers by the High Court under Articles 226 and 227 of the Constitution."
The Supreme Court proceeded further to consider as to if the provisions of Order 22 CPC are not applicable to writ petitions, the party who has invoked the jurisdiction of the High Court by filing such writ petitions under Articles 226 and 227 of the Constitution of India, whether would be at liberty to proceed with such writ petitions against a dead respondent? The Supreme Court answered this question as under :-
"...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 context 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 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."
"...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 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 in so far as they are not inconsistent with those rules. In the case of Rokyaybi v. Ismail Khan, AIR 1984 Karnataka 234, 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."
"...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 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."
The Supreme Court thereafter proceeded to answer the question as to even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, then whether 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 the death of the respondent survives. The Supreme Court answered this question as under :-
"...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, 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 as 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 appeals, 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."
I have also noticed one another important aspect as explained by the Supreme Court. If the heirs and legal representative are brought on record within the prescribed time at one stage of a suit, it will enure for the benefit of all the subsequent stages of the suit. If the legal representatives of a deceased plaintiff or defendant are brought on record in an appeal or revision from an order made in the suit, it would enure for all subsequent stages of the suit. But, this legal position cannot be invoked in the reverse or converse situation. An order made in a suit subsequent to the filing of an appeal at an earlier stage will move forward with the subsequent stages of the suit or appeals taken therefrom; but it cannot be projected backward into the appeal that has already been filed. An appeal is a continuation of a suit but a suit is not a continuation of an appeal.
The review and analysis of the case-law discussed above makes the position very clear. The objection of the respondents that as the applicants have not substituted the heirs and legal representatives in the main suit the present Applications preferred in proceedings under Article 226/227 of the Constitution of India would not be maintainable, deserves to be overruled. It is undisputed that within a period of 90 days from the date of death of respondent no.5 the application was filed by the applicants. These Applications deserve to be allowed on both the counts. Even if I believe and hold that provisions of Order 22 CPC are applicable to the present proceedings and even without making the provisions of Order 22 CPC applicable, the Applications are maintainable and the heirs and legal representatives of deceased respondent no.5 can be permitted to be substituted in the Civil Application for interim relief as well as the main petition.
In the result, both the Applications succeed and are allowed. Proposed respondent nos.5/1 to 5/4 are allowed to be substituted in the Civil Application No.3423 of 2009 as well as the main Special Civil Application No.4632 of 2006. The applicants are directed to amend the cause-title by impleading respondent nos.5/1 to 5/4 as the heirs and legal representatives of deceased respondent no.5 Lalitadevi Kirdutt.
However, it is clarified that as an application for substituting the heirs and legal representatives of original defendant no.5 in the main suit has already been filed before the Civil Court and is pending, the Civil Court shall now substitute the heirs and legal representatives of original defendant no.5 in the main suit as the heirs are now already been ordered to be brought on the record of Special Civil Application No.4632 of 2006.
(J.B.Pardiwala, J.) /moin After the pronouncement of the order, learned advocate Mr.Amar Bhatt brought to the notice of the Court that the application for substitution of heirs and legal representatives which was pending before the trial Court has already been allowed on 29th August 2011 and the heirs and legal representatives of late Lalitadevi Kirdutt, original defendant no.5 in the suit, are brought on record. In this view of the matter, the last part of the order would not be necessary for compliance.
(J.B.Pardiwala, J.) /moin Top