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TMI Blog1996 (1) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... s were rejected by the Consolidation Officer. The appeal filed on behalf of Sham Singh was accepted by the Settlement Officer, whereas the appeals filed on behalf of Bir Singh and others were rejected. Bir Singh filed further appeals against the orders aforesaid before the Assistant Director, Consolidation of Holdings, Rohtak, which were rejected. Thereafter revision applications were filed on behalf of Bir Singh and Wazir Singh which were allowed on 15th October 1965 by the Additional Director, Consolidation, who ordered the changes in the allotment of land. Sham Singh, the father of the appellants filed the aforesaid Writ Petition (Civil Writ No.931 of 1966) for quashing the order dated 15th October 1965 passed by the Additional Director, Consolidation of Holdings. During the pendency of the said writ petition, Sham Singh died and appellants were substituted in his place. When the writ petition was taken up for hearing by the learned single judge on 14th March 1975 the counsel appearing for Bir Singh who was Respondent No. 2 to the said writ petition informed the court that the said Bir Singh had died on 9th December 1971 and no application for bringing his legal representative h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in spite of the death of the person against whom the proceeding had been initiated and such right continues to exist against the legal representative of the deceased who was a party to the proceeding. Order 22 of the Code deals with this aspect of the matter. Rule 1 of Order 22 says that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. That is why whenever a party to a suit dies, the first question which is to be decided is as to whether the right to sue survives or not. If the right is held to be a personal right which is extinguished with the death of the person concerned and does not devolve on the legal representatives or successors, then it is an end of the suit. Such suit, therefore, cannot be continued. But if the right to sue survives against the legal representative of the original defendant, then procedures have been prescribed in Order 22 to bring the legal representative on record within the time prescribed. In view of Rule 4 of Order 22 where one of two or more defendandants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant dies and the right to sue s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 141 of the Code was not applicable. (Bhagwan Singh v. Additional Director Consolidation, AIR 1968 Punjab 360; Chandmal v. State, AIR 1968 Rajasthan 20; K.B.Mfg.Co. v. Sales Tax Commissioner, AIR 1965 All. 517; Ramchand v. Anandlal, AIR 1962 Gujarat 21; Messers Bharat Board Mills v. Regional Provident Fund Commissioner and Others, AIR 1957 Cal. 702) Even before the introduction of the explanation to Section 141 of the Code, this Court had occasion to examine the scope of the said Section in the case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and others, AIR 1974 SC 2105 = (1975)2 SCR 71. It was said: It is not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words as far as it can be made applicable make it clear that, in applying the various provisions of the Code to proceedings other than tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defeated. According to us, in view of the conflicting opinions expressed by the different courts, the Parliament by the aforesaid amending Act introduced the explanation saying that in Section 141 of the Code the expression proceedings does not include any proceedings under Article 226 of the Constitution and statutorily recognised the views expressed by some of the courts that writ proceedings under Article 226 of the Constitution shall not be deemed to be proceedings within the meaning of Section 141 of the Code. After the introduction of the explanation to Section 141 of the Code, it can be said that when Section 141 provides 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 shall not include a proceeding under Article 226 of the constitution. In this background, according to us, it cannot be held that the provisions contained in Order 22 of the Code are applicable per se to writ proceedings. If even before the introduction of the explanation to Section 141, this Court in the case of Babubhai v. Nandlal (supra) had said that the words as far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it will be unreasonable on the part of the court to implead the legal representative of the deceased respondent after lapse of several months or years and then to direct them to contest the claim of the petitioner merely on the ground that after the death of the original respondent the right title or the interest of such respondent has devolved on them. In the case of Ram Kala and others v. Assistant Director. Consolidation of Holdings. Punjab. Rohtak and others. AIR 1977 Punjab Haryana 87 a Full Bench of three Judges held that Article 137 of the Schedule to the Limitation Act does not apply to an application for adding or substituting a party to a petition under Article 226 of the Constitution. It was also held that Section 141 of the Code cannot be pressed into service for applying the provisions including Order 22 of the Code in a petition under Article 226 of the Constitution. Later a Full Bench of five Judges of the same court in the case of Teja Singh v. Union Territory of Chandigarh (supra) held that in view of Rule 32 of the Writ Rules framed by the High Court under Article 225 of the Constitution which provided that in all matters in which no provision ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1984 Karnataka 234 in view of Rule 39 of the Writ Proceedings Rules as framed by the Karnataka High Court making the provisions of Code of Civil Procedure applicable to writ proceedings and writ appeals, it was held that the provisions of the Code were applicable to writ proceedings and writ appeals. We have not been able to appreciate the anxiety on the part of the different courts in judgments referred to above to apply the provisions of the Code to Writ Proceedings on the basis of Section 141 of the Code. When the constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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