- (1.) The matter arises out of an application filed on behalf of the plaintiff/petitioner for substitution of the heirs of the deceased OP Nos. 1 and 2 after setting aside abatement on condonation of delay. Though not specifically mentioned in the cause title the instant application is to be treated as an application under Order 22, Rule 9 C.P.C. read with Section 5 of the Limitation Act. It is alleged that during the pendency of this revisional application the OP/defendant No. 1 died intestate on 8/07/1994 leaving behind her daughters OP No. 1(a) and 1(b) as her heirs and legal representatives and that the OP/defendant No. 2 also died intestate on 7-11-1995 leaving the OPs 2 (a) to 2(c) as his legal heirs and representatives. All the proposed heirs are stated to be major, sui juris and suffering from no legal disability. The petitioner's case is that although prayer for substitution of the heirs of the aforesaid deceased defendant/OP Nos. 1 and 2 was made in the Trial Court in connection with the Title Suit No. 15 of 1991, he had no idea or legal knowledge that he had to take steps for substitution in the instant revisional application also. It is the further case of the petitioner that as his youngest brother was suffering from paralysis from 19/08/199 4/11/1995 he could not take appropriate steps for substitution in connection with the present matter till he contacted his lawyer in High Court on 24-1-1996. On being advised by his lawyer he filed the instant application on 29-1-1996 and filed the same in the Court of N. K. Bhattacharjee, J. on 1-2-1996. The application has been seriously contested on behalf of the heirs of the deceased OP Nos. 1 and 2 who have filed affidavit-in-opposition separately. The petitioner has filed supplimentary affidavit and affidavit-in-reply. At the time of hearing it has been, however, contended by Mr. Bhattacharjee the learned Counsel for the petitioner that the provisions of Order 22 and Rules thereunder regarding substitution are not applicable to a civil revisional application under Section 115, C.P.C. by virtue of Section 141, C.P.C. Mr. Bhattacharjee has further contended that even if it is held that the provisions of Order 22 and the Rules thereunder are applicable to a revisional application the period of limitation for substitution or for setting aside abatement will not be governed by Articles 120 and 121 of the Indian Limitation Act but, will be governed by the provisions of residuary Article 137 of the Limitation Act.
(2.) Mr. Bhattacharjee in support of his contention that provision of Order 22 of the Civil Procedure Code are not applicable to a revisional application under Section 115 of the Civil Procedure Code as referred to a Single Bench decision of this High Court reported in 1976 (1) CLJ 492 Md. Israil, petitioner v. S. M. Amirul Islam, Opposite Parties. The relevant part of the above reported case may be quoted below :- "From the plain reading of the provisions it appears that there is provisions for substitution in case of suits and appeals and some other matters but not in case of revisional application filed under Section 115 of the Civil Procedure Code. Revisional applications are not original proceedings. This is clearly a discretionary matter with the Court. If for the disposal of the revisional applications, the High Court thinks that for ends of justice any party has got to be added or if at the instance of any of the parties any substitution is necessary though belated, for ends of justice certainly and for proper decision, the High Court should allow substitution or addition of the parties. There can be no question of limitation in this respect."In all fairness he has also referred to an earlier Single Bench decision of this High Court reported in 1975 (2) CLJ 191, Md. Eusuf Mondal, v. Md. Omar Ali. The learned Judge there while relying upon a decision of the Lahore High Court reported in AIR 1949 Lahore 186 and upon many other decisions of the Supreme Court noted in the Judgment has held that Rules, as to abatement apply as much to proceedings in revision as to appeals and that the revisional jurisdiction exercised by the High Court is a part of the general appellate jurisdiction and there is no reason why the provisions of Order 22 will not apply to revision cases in the High Court. In a Division Bench case of this High Court reported in AIR 1977 Cal 241, State Bank of India v. S. Wazir Singh, both the above two Single Bench Judgments were considered and the decision reported in 1976 (1) CLJ 492 was overruled and the earlier Single Bench decision of this High Court reported in 1975 (2) CLJ 191 was approved. Relying upon a decision of the Supreme Court reported in AIR 1970 SC 1 the Bench has held that' the provisions of Order 22, C.P.C. apply in the case of revisional applications as well and that being so, we hold that the application for substitution of legal heirs that as the application for substitution was filed beyond 90 days the learned Additional Registrar was right in recording a note of abatement of the rule as against the opposite party No. 1." In the above Supreme Court Judgment reported in AIR 1970 SC 1, Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, it has been held as follows at Page 4 :- "When the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the C.P.C. circumscribed the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the statute basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense."In coming to the conclusion that provisions of Order 22 of the Civil Procedure Code are applicable to revisional applications, this High Court in the above reported case in AIR 1977 Cal 241 (supra) relied upon the Bench decision of this High Court reported in (1913) 18 CLJ 141 (Anandmoyi Dasi v. Rudra Mahanti). Mr. Bhattacharjee has submitted with reference to the above decisions of this High Court that the observations made by the Bench is obiter dictum making a reference to an earlier decision of this High Court reported in (1912) 16 CLJ 571, Deo Saran Lal v. Syedunnessa Begum. But this aspect of the matter, in my opinion, should not be pursued because in view of the settled position of law it would be a merely too technical and academic exercise. Mr. Bhattacharjee cannot get any support in his contention that provisions of Order 22, C.P.C. have no application to an application under Section 115, C.P.C. on the basis of the Judgment reported in 1976 (1) CLJ 492 because that Judgment has been overruled by Division Bench and has ceased to be a good proposition of law.
(3.) Mr. Banerjee the learned Counsel appearing for the OP 1 (a) and 1 (b) has argued a lot to bring home his point that provisions of Order 22, C.P.C. are applicable to a revisional application in terms of Section 141 read with Section 117 of the Civil Procedure Code and in support of his contention he has referred to a decision of the Rajasthan High Court reported in AIR 1973 Raj 219, Mahendra Singh v. Sohan Baj and also to a decision of the Supreme Court reported in AIR 1964 SC 497 : (1963 All LJ 1068), Major S. S. Khanna v. Brig. F.J. Dillon but in my opinion, this aspect of the matter does not require further elaboration in view of the position of law as settled in the Bench case reported in AIR 1977 Cal 241 which I have already discussed. Under the circumstances I must hold that the provisions of Order 22 are applicable to a revisional application under Section 115 of the Civil Procedure Code.;