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PETITIONER: PURAN SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT:       18/01/1996

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) VENKATASWAMI K. (J)

CITATION:  1996 AIR 1092            1996 SCC  (2) 205  JT 1996 (1)   362        1996 SCALE  (1)380

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T N.P. SINGH, J.      This appeal  has been filed against an order dated 16th March, 1981  passed by  the High Court dismissing the Appeal filed on  behalf of  the appellants, and affirming the order of dismissal  of the  writ petition  which had been filed on behalf of Sham Singh, the father of the appellants.      Pursuant  to   a  notification   issued  by  the  State Government under  Section 14  of the  East  Punjab  Holdings (Consolidation and  Prevention of Fragmentation) Act, 1948 a scheme  was  prepared  by  the  authorities  in  respect  of holdings  belonging   to  Sham  Singh,  the  father  of  the appellants, Bir  Singh, father  of Respondent  Nos. 2 and 3, Wazir Singh  Respondent No.4, Om Prakash Respondent No.5 and others in  village Longowal,  Tehsil and  District  Sangrur. Objections  were   filed  in  respect  of  the  said  scheme including on  behalf of  Sham Singh  and others  against the proposed  allotment   of  land   under  the   scheme.  Those objections were  rejected by  the Consolidation Officer. The appeal filed  on behalf  of Sham  Singh was  accepted by the Settlement Officer,  whereas the  appeals filed on behalf of Bir Singh  and others were rejected. Bir Singh filed further appeals against  the orders  aforesaid before  the Assistant Director, Consolidation  of  Holdings,  Rohtak,  which  were rejected. Thereafter  revision applications  were  filed  on behalf of  Bir Singh  and Wazir  Singh which were allowed on 15th October 1965 by the Additional Director, Consolidation, who ordered  the changes  in the  allotment  of  land.  Sham Singh, the father of the appellants filed the aforesaid Writ Petition (Civil  Writ No.931 of 1966) for quashing the order dated 15th  October 1965  passed by the Additional Director, Consolidation of  Holdings. During  the pendency of the said writ  petition,   Sham  Singh   died  and   appellants  were substituted in  his place.  When the writ petition was taken up for  hearing by  the learned  single judge  on 14th March

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1975 the  counsel appearing for Bir Singh who was Respondent No. 2  to the said writ petition informed the court that the said Bir  Singh  had  died  on  9th  December  1971  and  no application for  bringing his  legal representative had been made. It  was pointed  out that  the impugned  orders in the writ petition  were in  favour of Bir Singh and as his legal representative had  not been  substituted, the writ petition ought to be dismissed. The appellants were not in a position to contradict  the aforesaid  assertion in  respect  of  the death of  Bir  Singh,  Respondent  No.2  to  the  said  writ petition.  As  such,  the  High  Court  dismissed  the  writ petition filed  saying that  as Bir  Singh had  died on  9th December 1971  and no  application for  bringing  the  legal representative of  the deceased  had  been  made,  the  writ petition  was  not  maintainable  in  absence  of  necessary parties. The  Letters Patent  Appeal filed  against the said order was  also dismissed  saying that as the appellants had not taken  any steps  to bring  the legal  representative of aforesaid Bir Singh who was respondent to the writ petition, the writ  petition had  abated. In this connection, reliance was placed  by the  Division Bench,  to the Judgment of five Judges bench  of the same court in the case of Teja Singh v. Union Territory  of Chandigarh and others, AIR 1982 Punjab & Haryana 169,  where it  had been  held that  Order 22 of the Code of  Civil Procedure  (hereinafter referred  to  as  the ’Code’) was  applicable to  the proceeding under Article 226 of the  Constitution of  India, in  view of  the Writ  Rules framed by the said High Court.      On behalf  of the appellants it was urged that Articles 226 and  227 of  the Constitution  has vested extra-ordinary power in the High Court, and the procedure thereof cannot be regulated or  controlled  by  the  provisions  of  the  Code because  the  power  under  Articles  226  and  227  of  the Constitution has  to be  exercised for  the ends  of justice taking into  consideration the  facts and circumstances of a particular case.  That  power  cannot  be  circumscribed  by technical procedural  rules  regarding  suit  or  appeal  as provided under the Code.      A personal  action dies with the death of the person on the maxim  "action personalis moritur cum persona". But this operates only in a limited class of actions ex delicto, such as action  for damages  for  defamation,  assault  or  other personal injuries not causing the death of the party, and in other actions  where  after  the  death  of  the  party  the granting of  the relief would be nugatory. (Girja Nandini v. Bijendra Narain, 1967 (1) SCR 93). But there are other cases where the right to sue survives in spite of the death of the person against  whom the  proceeding had  been initiated and such  right   continues   to   exist   against   the   legal representative of  the deceased  who  was  a  party  to  the proceeding. Order  22 of  the Code deals with this aspect of the matter.  Rule 1  of Order  22 says  that the  death of a plaintiff or  defendant shall not cause the suit to abate if the right to sue survives. That is why whenever a party to a suit dies,  the first  question which is to be decided is as to whether the right to sue survives or not. If the right is held to  be a  personal right which is extinguished with the death of  the person  concerned and  does not devolve on the legal representatives  or successors,  then it  is an end of the suit.  Such suit, therefore, cannot be continued. But if the right  to sue  survives against the legal representative of  the   original  defendant,  then  procedures  have  been prescribed in  Order 22 to bring the legal representative on record within  the time  prescribed. In  view of  Rule 4  of Order 22 where one of two or more defendandants dies and the

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right  to   sue  does  not  survive  against  the  surviving defendant or  defendants alone, or a sole defendant dies and the right  to sue  survives, the  Court, on  an  application being  made   in  that   behalf,  shall   cause  the   legal representatives of the deceased defendant to be made a party and  shall  proceed  with  the  suit.  If  within  the  time prescribed by  Article 120  of the  Limitation Act,  1963 no application is  made under  sub-rule (1) of Rule 4, the suit shall abate  as against the deceased defendant. This Rule is based not  only on  the sound  principle that  a suit cannot proceed against  a dead person, but also on the principle of natural justice that if the original defendant is dead, then no decree  can be passed against him so as to bind his legal representative without  affording an  opportunity to them to contest the  claim of  the plaintiff.  Rule 9 of Order 22 of the  Code   prescribes  the   procedure  for  setting  aside abatement.      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  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; Messers Bharat Board Mills v. Regional Provident  Fund Commissioner  and Others,  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  and others, 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

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    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 Court 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 warrant  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  quit in writ petitions, because in many cases the sole object of writ jurisdiction to provide quick and inexpensive remedy to  the person  who  invokes  which  jurisdiction  is likely to be defeated. A Constitution Bench of this Court in the case  of State  of U.P. vs. Vijay Anand, AIR SC 1963 946 said as follows:-           "It is,  therefore, clear  from the      nature  of  the  power  conferred  under      Art.226  of  the  Constitution  and  the      decisions on  the subject  that the High      Court in  exercise of  its  power  under      Art.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

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person,  whose   legal  or  constitutional  right  has  been infringed. If  all the  eleborate 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 (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.      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

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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.      In the  case  of  Ram  Kala  and  others  v.  Assistant Director. Consolidation  of  Holdings.  Punjab.  Rohtak  and others. AIR  1977 Punjab  & Haryana 87 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  (supra) 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 in  so far as they were not inconsistent with those Rules. It was held that the explanation which had been added to Section  141 of  the Code  by the aforesaid Amending Act, did not  in any  way nullified  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."      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

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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.      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,  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

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which due to the inaction of the petitioner or the appellant has become final.      So far  the facts  of the  present appeal is concerned, Bir Singh died on 9th December, 1971. The dispute related to consolidation of  holding of  lands. After  the death of Bir Singh the  right title  and interest  in the  land shall  be deemed to have devolved on his legal representative. As such the right  to pursue  the remedy  against them survived even after the  death of  Bir Singh.  But for  pursuing the claim against  the   legal  representative   of  Bir   Singh,  the appellants ought  to have  taken steps  to  substitute  him. Admittedly, no  step was  taken on  behalf of the appellants till 14th  March, 1975. As such the High Court was justified in dismissing  the writ  petition and  no exception  can  be taken against  the said  order. The appeal accordingly fails and it  is dismissed.  But there  shall be  no orders  as to cost.