Mohmood Mian and Others vs Abdul Hamid and Others

Dhrub Narayan Upadhyay, J.

I.A. No. 867 of 2007

This interlocutory application has been filed under Section 151 of the Code of Civil Procedure with a prayer to substitute the legal heirs and successors of Opposite Party No. 1-Abdul Hamid, who died on 20th September, 2006, whose names and addresses are described in Para-2 of this application.

In the very said interlocutory application, in Para-3, it is contended that Petitioner No. 1-Abdul Rahman has also died. It further transpires that I.A. No. 1339 of 2010 had been filed under Order XXII Rules 4 and 9 of the Code of Civil Procedure read with Section 5 of the Limitation Act in continuance of I.A. No. 867 of 2007. In Para-8 of I.A. No. 1339 of 2010, it is stated that I.A. No. 867 of 2007 was placed on board on 27th March, 2010 under the heading "For Orders" and during the course of argument, counsel for the petitioners sought one week''s time for filing necessary application under correct provision of law, as the aforesaid I.A. No. 867 of 2007 was under Section 151 of the Code of Civil Procedure and for the said purpose one week''s time was allowed by this Court.

The opposite parties have filed common rejoinder to I.A. Nos. 867 of 2007 and 1339 of 2010, raising objection that for substituting legal heirs of parties in a civil proceeding, the provision contained under Order XXII shall be applied. Since there is specific provision in the Code of Civil Procedure, the application under Section 151 of the Code of Civil Procedure is not required to be invoked. The opposite parties have also disputed the date of death of Opposite Party No. 1-Abdul Hamid and according to them, he died on 3rd August, 2006, leaving behind his four sons, named in Para-5 of the rejoinder. It is further stated that since petition for substitution of legal heirs of Opposite Party No. 1 has not been filed within time, the C.M.P. stood abated.

Counsel for the petitioners has relied on the judgments rendered in the cases of Harakh Nath Singh Vs. Lodha Singh, reported in [1978] BBCJ 481 and Chandradeo Pandey and Others Vs. Sukhdeo Rai and Others, and submitted that in civil revision, the parties are arrayed under the heading petitioner and opposite party and the words "Petitioner" and "Opposite Party" are not indicated in Order XXII Rule 3 or Rule 4 of the Code of Civil Procedure and, therefore, in civil revision, substitution of any deceased petitioner or opposite party is required to be done under Section 151 of the Code of Civil Procedure only within three years as per Article 137 of the Limitation Act. In the present case, since I.A. No. 867 of 2007 has been filed within a period of three years, the opposite party is permitted to be substituted by his legal heirs and successors.

On the other hand, counsel for the opposite parties have vehemently opposed the prayer and referred the judgments of the Hon''ble Supreme Court reported in Union of India (UOI) Vs. Ram Charan and Others, , Nain Singh Vs. Koonwarjee and Others, and Bhagwan Swaroop and Others Vs. Mool Chand and Others, and submitted that Section 151 of the Code of Civil Procedure shall not be invoked for substitution of legal heirs of parties concerned and the specific provision contained in Order XXII Rules 3 and 4 of the Code of Civil Procedure, as the case may be, shall be applied.

I have heard learned counsel for the parties and perused the materials available on record. It reveals from I.A. No. 1339 of 2010 that it was filed after taking leave of this Court when I.A. No. 867 of 2007 was on the board and that application was presumed to be in continuation of I.A. No. 867 of 2007. From perusal of the order dated 3rd August 2010 of this Court, it is evident that I.A. No. 1339 of 2010 has been rejected as not pressed. The date of death of Opposite Party No. 1 and number of legal heirs as well are also disputed by the opposite parties and to make it clear the petitioners have not filed any document. As per rejoinder filed by the opposite parties, Opposite Party No. 3 also died during the pendency of the C.M.P., but no petition to substitute him has been filed as yet.

In the circumstances, as stated above, it is apparent that the petitioners are not vigilant since from the very inception of the second appeal filed by them. Second appeal stood rejected for non-compliance of the order of this Court dated 14th August, 2003 and the C.M.P. has been filed in the year 2005 i.e. after delay of more than two years. Even after filing this C.M.P., the petitioners were not vigilant. Since the petitioners have failed to file an appropriate application for substituting the legal heirs of Petitioner No. 1 and Opposite Party Nos. 1 and 3 in time, the C.M.P. itself stood abated.

Therefore, I do not feel inclined to have any discussion on the application filed under Section 151 of the Code of Civil Procedure in a case where the parties are arrayed as the petitioners and the opposite parties.

In the result, I.A. No. 867 of 2007 stands rejected.

Consequently, this C.M.P. stands abated.