Jayaprakasan and Another vs Visalakshy and Others

Pareed Pillay, J.—C.M.Ps. 3711 of 1990 and 3712 of 1990 are petitions filed to substitute the Petitioners as the legal representatives of deceased Ghathunhi (original revision Petitioner) in the above C.R.Ps. The other petitions are tiled to set aside abatement and for condonation of delay.

The revision Petitioner died on 1st May 1988. The petitions for substitution of the legal heirs were filed on 20th November 1990. The petitions to set aside abatement and the petitions to condone delay were filed on 2nd January 1991 and 7th January 1991.

Petitioners contended that there is no period of limitation for substitution petition filed u/s 151 CPC in contradistinction to impleading petition which has to be filed within 90 days as provided under Article 120 of the Limitation Act. Counsel submitted that C.M.Ps. 3/11 of 1990 and 3712 of 1990 may also be construed as impleading petitions and as a matter of abundant caution Petitioners have filed applications to set aside abatement and delay condonation petitions.

Counsel relied on Munney Khan Vs. Smt. Kaushilya Devi and Others, in support of his contention that for an application for substitution of legal representatives in the place of the deceased Petitioner period of limitation of 90 days prescribed under Article 120 is not applicable. It is argued that in a petition filed u/s 151 CPC for substitution and that too when the matter is pending before the High Court (revisional court) it is highly necessary for the ends of justice and certainly for a proper decision that the High Court should allow substitution or addition of parties and there can be no question of limitation in this respect. With great respect, I cannot agree with the view taken by the Allahabad High Court as it has not properly considered the specific provisions under Order XXII CPC and Article 120 of the Limitation Act. The argument is on the basis that Order XXII CPC applies to suits and by virtue of Rule 11 to appeals and that no specific provision is there with regard to revisions. The above argument is devoid of merit in view of Section 141 CPC which states 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 is not possible to hold that Rules as to impleading and abatement do r not apply as much to proceedings in revision as to appeals. Impleading petition and petition to set aside abatement are proceedings before the civil court and by virtue of Section 141 provisions under Order XXII are made applicable to proceedings before the revisional court also. Moreover the revisional jurisdiction exercised by the High Court is a part of the general appellate jurisdiction and it cannot be held that the provisions of Order XXII are inapplicable to civil revision petitions pending before the High Court. In this context it is useful to refer to Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, where the Supreme Court held:

When the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the CPC circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.

Another contention is that an application for substitution of heirs in a revision petition before High Court is an application u/s 151 CPC and hence the period of limitation for bringing the heirs of deceased party is three years under Article 137 and not 90 days under Article 120 of the Limitation Act. Reliance is placed on Chandradeo Pandey and Others Vs. Sukhdeo Rai and Others, in support of the above contention.

As the revisional jurisdiction exercised by the High Court is a part of the general appellate jurisdiction, it cannot be held that Order XXII will not apply to proceedings pending before the revisional Court. It is apposite to refer, to State Bank of India Vs. S. Wazir Singh and Others, where the Calcutta High Court held:

The provision of Order 22, Code of Civil Procedure, apply in the case of revisional applications as well. Therefore an application for substitution of legal heirs of a deceased Respondent must be filed within 90 days of the date of death and not within three years from such date. Consequently an application filed beyond 90 days is barred by limitation and the revision abates as against the deceased Respondent.

The contention that Provisions of Order XXII, Rule 3 cannot have any application to revisional proceedings before High Court is not tenable. It is not open to a party to file an application for substitution u/s 151 CPC when the petition for impleading is time barred. The principle recognised in Order XXII, Rule 3, CPC is applicable not only to suits and appeals but also to proceedings in revision. Thus, whether a petition is for substitution or for impleading legal representative of the deceased Revision Petitioner it will have to be filed within the time prescribed under Article 120 of the Limitation Act. Under the guise of substitution petition the period of limitation prescribed under Article 120 of the Limitation Act cannot be circumvented in a case where the legal representatives of the deceased Revision Petitioner have to be impleaded.

Counsel for the Petitioners alternatively contended that the substitution petition can be treated as a petition for impleading the legal representatives of the original revision Petitioner and as the Petitioners were wrongly advised by their Counsel the delay may be condoned. Wrong advise by the Counsel will not be a sufficient ground for condoning the delay especially when there was no scope for such advice. Though the original revision Petitioner died on 1st May 1988, the petitions to implead legal representatives were filed only on 20th November 1990 i.e. more than two years after death. As the Petitioners were aware of the death of their father and as they do not have a case that they were not aware of the pendency of the revision petition before this Court, the delay cannot be condoned for the sole reason that their Counsel advised them that there is no delay in filing the petitions.

The petitions are dismissed.