Riazuddin Ahmed vs The Assam Board of Revenue and Others

K. Lahiri, J.—This is an application for substitution of the heir of late Azizul Hussain, Respondent No. 3 in the writ petition, being Civil Rule No. 127/78. The Petitioner claims that Respondent No. 3 died on 2.11.83 leaving behind the Writ Petitioner and the wife of late Azizul Hussain as heirs. Under those circumstances, it is stated that Musstt Husns Begum, wife of the deceased be substituted as Respondent No. 3 in place of deceased Respondent late Azizul Hussain.

Admittedly Respondent No. 3 died on 2.11.83 and this application for substitution has been filed on 19.5.84 beyond a period of 90 days from the date of death. There is no dispute that the writ Petitioner is pursuing the litigation from the Revenue Court to the Board of Revenue and also in this High Court. Mrs. B. Dutta, learned Counsel for the Petitioner lives far away from the sent of the High Court and he was not aware that on the death of Respondent No. 3, his heirs and/or legal representative were required to be substituted and/or that there was a specific period for making such an application for substitution.

Mrs. Dutta, learned Counsel for the Petitioner submits that the provisions of Order 22 of the Code of Civil Procedure, for short "the Code" which are applicable in "civil proceedings" should not be applied to writ proceedings, Learned Counsel submits that the provisions of Order 22 are not applicable ''proprio-vigore'' in writ petition in view of the provisions contained in Section 141 of "the Code", as amended in 1976. The second submission of the learned Counsel is that in this region or as a matter of that in India, general public is unaware of the fact that on the death of a litigant, his heir or legal representative is required to be substituted.

Mr. P.G. Barua, learned Counsel for the proposed Respondent No. 3 submits that the petition has abated as the application for substitution has been made after 90 days from the date of death or knowledge of death of Respondent No. 3. According to Mr. Barua, the Petitioner had full knowledge of death of Respondent No. 3 on the very date of his death. Mr. P.G. Barua, learned Counsel contends that when no steps had been taken to bring the legal representatives on record within the requisite period of 90 days and in the absence of any application for setting aside the abatement, this application should be dismissed.

It appears to us that the provisions of the CPC are inapplicable in proceedings under Article 226 of the Constitution. Order 22 of the Code provides for making application for setting aside abatement. According to us the provision of order 22 are not applicable in proceedings under Article 226 of the Constitution. There might have been some conflict of opinion about the applicability of "the Code" in proceeding under Article 226 in view of the language of Section 141 of ''the Code''. But, the position has now been made clear by the Civil Procedure (Amendment) Act, 1976 which came into force on and from February 1, 1977, inserting the explanation in Section 141 of ''the Code''. We extract the Section 141 of the ''the Code'', as it stands after the amendment:

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 jurisdictions.

Explanation- In this section the expression ''proceedings includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.

The explanation has been inserted by the Amending Act and we lay emphasis on the portion underscored by us. It is seen that the provisions of "the Code" are inapplicable in respect of the proceedings under Article 226 of the Constitution. No High Court Rule has been brought to our notice to show that the provisions of Order 22 of "the Code" have been made applicable in respect of proceedings under Article 226 of the Constitution, under the circumstances, we bold that the provisions of Order 22 of "the Code'''' are not applicable "proprio-vigore" in proceedings under Article 226 of the Constitution. However, in exercise of its inherent Jurisdiction of the High Court may or may not add or substitute parties. When the provisions of Order 22 of "the Code" are inapplicable the question of abatement of the writ petition does not arise. The only question that arises for consideration is whether on the death of Respondent, his heir, a necessary party, should be allowed to be substituted in his place. The wife, sought to be substituted, is a necessary party and she has already appeared in this case through her Counsel. We hold that the writ petition has not abated and further hold that the cause of Justice shall be upheld if the necessary party is substituted.

Be that as it may, the application for substitution cannot be dismissed for a short delay in asking for substitution of the heir of the deceased. In the morbid socio-economic milieu in the country, where poverty, ignorance and educational penury are rampant, it is hardly possible to penalise litigant if he comes late by a few months or weeks to apply for substitution. The naked truth is, apart from persons specialised or skilled in law, a common litigant is oblivious of provisions like those contained in Order of "the Code". In a country like ours where there is so much poverty, ignorance and illiteracy it would be unfair to presume that a common litigant knows that on the death of a Respondent his heir and/or legal representative is to be brought on record find that too within a prescribed time. Should we penalise a common litigant for his ignorance and throw him out of Court? The writ Petitioner is just a commoner lives far away from the seat of the High Court. It cannot be logically presumed that a person fighting litigation for so many years would allow his writ petition to be abated, knowing the rigour of provisions contained in Order 22 of "the Code". We cannot believe that the writ Petitioner committed "hara kiri". Under these circumstances, we feel that the writ Petitioner should not be punished for his ignorance and/or lack of legal knowledge. There is a just touch of poverty jurisprudence lucidly explained by Bhagwan J. as his Lordship then was, in Ram Sumiran and Others Vs. D.D.C. and Others, Six years'' delay in filing application for bringing the heirs of the deceased on record was condoned by their Lordships upon setting aside the abatement on the ground that in a country like ours where poverty, Ignorance, illiteracy prevail that it will be unjust and unfair to reject the application. The High Court had dismissed the writ petition under Article 226 of the Constitution holding that the petition had abated as a whole, as the legal representatives of Respondent No. 5 were not brought on record within the prescribed period of 90 days. It is pertinent to mention here that Respondent No. 5 of that cast died on 21.11.76. Their Lordships held as follows:

It is true that no steps were taken by the Appellants for bringing the legal representatives of the deceased Respondent No. 5 on record for about 6 years even though according to Respondent No. 4 the Appellants knew about the death of Respondent No. 5. But merely because no application was made by the Appellants for bringing the legal representatives of the deceased Respondent No. 5 on record we do not think that in the circumstances of the present case that would be a valid ground for refusing to grant the application of the Appellants for setting aside the abatement and bringing the legal representatives of deceased Respondent No. 5 on record because the Appellant are admittedly from the rural area and in a country like ours where there is to much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a Respondent, the legal representatives have to be brought on record within a certain time. The ends of justice require that the application for bringing the legal representatives of the deceased Respondent No. 5 should have been granted. We accordingly allow the appeal, set aside the order of the High Court and direct that the abatement, if any, shall be set aside and the legal representatives of the deceased Respondent No. 5 shall be brought on record and the writ petition shall be remanded to the High Court for disposal according to law.

It is thus seen that in view of the station in life of the writ Petitioner their Lordships having set aside the abatement allowed the legal representatives of deceased Respondent No. 5 to be brought on record. The status or standing of the present writ Petitioner is no better than that of Ram Sumiran, the Appellant before the Supreme Court. Further, the delay is by about six and half months and not six years. Relying on the law laid down by the Supreme Court in Ram Sumiran (supra) we hold that in the instant case also the application for substitution of the writ Petitioner must be allowed.

We feel that we should add a few words to explain why the Supreme Court in Ram Sumiran (supra), has used the expressions "setting aside the abatement". Does it mean that "the Code" is applicable even in writ proceedings under Article 226 of the Constitution, and, our conclusion on the first point is wrong ? The use of the expressions "setting aside the abatement" in Ram Sumiran appears to be counter to our conclusion reached. However, it may be noted that their Lordships of the Supreme Court have set aside the abatement in a Civil Appeal stemming from a writ application under Article 226 of the constitution decided by the High Court. In civil proceedings other than those under Article 226 of the Constitution in any Court of civil jurisdiction1 Order 22 of ''the Code'' is applicable. That is why their Lordships applied the expressions "setting aside the abatement" as that was not a proceeding under Article 226 of the Constitution. Further, the question of applicability of the Code in proceedings under Article 226 could not have been the subject matter of consideration in the Supreme Court. That apart, in Ram Sumiran Respondent No. 5 had died before 1.2.77, from which date the Civil Procedure (Amendment) Act, 1976 came into force, and therefore the question of applicability of the amended provision of Section 141 of ''the Code'' was left out of consideration.

For the foregoing reasons, we hold that it is a fit case to which the prayer of the Petitioner should be allowed. Accordingly, we allow the heir of Respondent No. 3 of the present writ petition to be substituted in place of deceased Respondent No. 3. However, we make no order as to costs.

As learned Counsel for both the parties agreed that Civil Rule should be disposed of immediately and it may come up for hearing tomorrow or immediately after the long vacation, we direct that Civil Rule No. 127/78 shall come up for hearing tomorrow, the last working day before the Long Vacation or immediately after the long vacation.

In the result, the Misc. case is disposed of the terms of the above order.