Satya Narain Parasar vs Collector and Others

R.K. Mahajan, J.—Heard Mr. Vivek Singh for Petitioner and Mr. R. N. Bhalla for the Respondents.

Mr. Vivek Singh, learned counsel for the Petitioner informs that sole Petitioner Satendra has breathed his last during pendency of the writ petition, therefore, prays for time to file suitable application for bringing legal heirs and representatives of deceased on record.

Mr. Bhalla, learned counsel for the Respondents raises preliminary objection that due to non-filing of suitable application within the meaning of Order XXII, Rule 3 and Order XXII, Rule 9, CPC within the limitation prescribed by Limitation Act, present writ petition abated and thus the question of granting time for the purpose does not arise.

We are afraid that notwithstanding the fact that after amendment of CPC in 1976 Explanation clause is inserted in Section 141 of CPC making it clear that procedure contemplated under the CPC will not be applicable to writ proceedings, how procedure contemplated under Order XXII, CPC or under Articles 120 and 121 of Limitation Act would apply in writ proceedings.

For the brevity of the case, it is necessary to reproduce the relevant provisions of Explanation added to Section 141, Code of Civil Procedure

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

Articles 120 and 121 of Limitation Act read as under:

Under the Code of Civil Procedure, Ninety The date of death of 1908, to have the legal representative days the Plaintiff, Appellant , of a deceased Plaintiff or appellant Defendant or Respondent or of a deceased Defendant or as the case may be. Respondent, made a party.

Under the same Code for an order Sixty The date of abatement. to set aside an abatement. Days

Since Explanation inserted to Section 141, CPC is itself emphatic and requires no further interpretation by this Court, hence we are of the considered opinion that neither the provisions of Section 141, CPC nor Order XXII, CPC as well as Articles 120 and 121 of Limitation Act have application to writ proceedings.

We may point out that writ proceedings and writ jurisdiction of this Court is not a civil jurisdiction; therefore, the provisions of CPC will not mutatis mutandis apply to the writ proceedings and only principles will apply, as such only principles relating to substitution are to be followed and after the death of any party to writ proceedings, application for substitution be made as early as possible and In case some delay is caused in making the substitution application, it is for the party concerned to explain the same reasonably but the same is not to be tested strictly on the test of Order XXII, CPC or Articles 120 and 121 of Limitation Act.

This being so, the preliminary objection raised by Mr. Bhalla is repelled and it is made clear that instant petition has not abated and is not liable to be dismissed as such.

In view of the discussions made above, as prayed, two weeks time is allowed to Mr. Vivek Singh for filing suitable applications for bringing the legal heirs and representatives of deceased Satendra on record.