Kali Kinkar Das vs Life Insurance Corporation of India

Anil K. Sen, J.—This is an application for substitution on setting aside abatement by the heirs and legal representatives of the deceased sole Petitioner Kali (Kinkar Das.

The Respondent Life Insurance Corporation, by, an order dated November 29, 1967, cancelled five of the policies held, by the deceased Kali Kinkar Das. Being aggrieved by the said order the said Kali Kinkar Das moved this Court under Article 226 of the Constitution and obtained the above Rule. He had challenged the order on the ground that such cancellation had. not been made in the lawful exercise of powers by the Respondent Corporation. His prayer in the application is for issue of an appropriate writ for quashing the impugned order of cancellation.

During the pendency Of the Rule, Kali Kinkar Das died on July 27, 1970. There is no dispute that the present applicants are the only heirs and legal representatives of the deceased Kali Kinkar Das. The present application under Order 22, Rule 9 of the CPC had been filed on November 20, 1970. The application makes out sufficient grounds why the application for substitution could not be made in time and the delay had been duly explained In the circumstances the applicants are praying that they may be substituted on setting aside abatement on the death of Kali Kinkar Das.

4: No affidavit has been filed by the Respondent .though, reasonable opportunity was given to it. Facts which constitute the foundation for the prayer in the application; have also not been, denied. ;Mr. Ghosh appearing on behalf of the Respondent, however, is contesting the present application on a question of law. According to Mr. Ghosh, no substitution is, permissible on the death of a petitioner in a proceeding under Article 226 of the Constitution. It is only on this basis that Mr. Ghosh, contends that, the application is bound to fail and should be dismissed. Mr. Janah, on the other hand, contends that there is no sanction for such a wide proposition contended for by Mr. Ghosh.; According to Mr. Janah, the right to sue in the present case survives and passes on to the heirs and legal representatives of the deceased Petitioner and, as suph, they have a legal right to proceed with the proceedings.

Though at one time there was some doubt as to whether the provisions of the CPC and particularly those of Order 22 of the said Code would have any application to a proceeding under Article 226 of the Constitution, such issue is, now well settled in favour of the view that they are so applicable. In the case of A. L. Narayan Rao v. Iswarhl Bhagwandas (1965) 1 ITR 149 the Supreme Court has now laid down that proceedings under Article 226 of the Constitution for the enforcement of civil rights are civil proceedings. In that view, by virtue of the provision of Section 141 of the CPC the other provisions of the said Code including those of Order 22 would be attracted to writ proceedings in this Court when they involve civil rights. The same view was taken in a Bench decision of this Court in the case of Krishnalal Sadhu and Others Vs. State of West Bengal and Others, . Similar views have also been expressed by other High Courts now. In this view, it can no longer be said that an application under the relevant provisions of Order 22 of the CPC in a proceeding like the present one is not maintainable at all. Mr. Ghosh has failed to support his contention by advancing any reason or authority. He has merely contended that in writ proceedings Petitioners claim relief only on the basis that they have personal and individual rights involved, in the dispute and, as such, such right is not to service in favour of the heirs and legal representatives. I am, however, unable to accept this contention of Mr. Ghosh. It is true that in the case of The Calcutta Gas Company (Proprietary) Ltd. Vs. The State of West Bengal and Others, the Supreme Court while considering what are the classes of persons, who are entitled to apply under Article 226 of the Constitution, observed that existence of a legal right of the Petitioner himself is the foundation for a proceeding under the said Article. And in that context the Supreme Court further observed that the right which can be enforced under Article 226 shall ordinarily be the personal or individual right of the Petitioner himself. But the Supreme Court in the said case was not considering an issue like the present one. Nor can the said decision be read as an authority for a proposition that the rights sought to be enforced in such proceedings can under no circumstances pass on to the heirs and legal representatives on the death of the Petitioner so that the right to sue never survives. Such a question was considered by different High Courts and it has now been held that in the facts and circumstances of a particular case where the right to sue survives, the heirs and legal representatives are entitled to be substituted in place and in stead of the deceased Petitioner. Each case, however, has to be judged on the basis of Order 22 of the CPC to find out whether the right to sue survives or not. Reference may be made to the cases of Ibrahimbhai Karimbhai and Others Vs. State of Gujarat, and K.S. Govinda Pillai Vs. District Collector, Quilon and Another, . I am in respectful agreement with the views expressed in these cases.

Judged on the aforesaid light it appears to me that the dispute in the present proceedings is over cancellation of certain policies on the life of the deceased Petitioner. So, if the cancellation be declared to be void or illegally the policies would stand and the benefits thereof would enure in favour of the heirs and legal representatives. So it is a case where, in my view, the right to sue survives and the heirs and legal representatives are entitled to be brought on the records on substitution.

On the conclusions as above this application succeeds. Abatement of the proceedings on the death of the sole Petitioner is set aside. The applications are substituted in place of the deceased Petitioner. Let the petition under Article 226 of the Constitution be amended accordingly.

There will be no order for costs on this application.