YADAV, J. - (1.) THIS writ petition is listed before this Court for disposal of application moved under Order 22 Rule 3 CPC alleging therein that petitioner No. 1 Suraj died on 27. 10. 92 leaving behind three sons, two daughters and widow Smt. Chuka Devi. It is also alleged that Sarva Shri Rupa, Sohan Ram and Gudad are already on record as petitioner Nos. 2 to 4. Only two daughters and widow of late Shri Suraj Karan ought to be taken on record as heirs and legal representatives of deceased petitioner No. l.
(2.) A reply has been filed on behalf of the respondent No. 5 opposing the aforesaid application moved by the remaining petitioners on the ground that the application moved by the petitioner under Order 22 Rule 3 CPC is barred by limitation. It is further alleged in the objection that since the remaining petitioners failed to move the instant application under Order 22 Rule 3 CPC within 90 days, therefore, the present petition is automatically abated. I have heard learned counsel for the petitioners Shri KR Choudhary and learned counsel appearing on behalf of respondent No. 5 Shri HR Soni and have critically gone through the material on record. It is urged before me on behalf of the petitioners that from the explanation appended to the amended Section 141 CPC it will be clear that Section 141 does not apply to proceedings under Art. 226 of the Constitution of India. According to the learned counsel for the remaining petitioners as a natural corollary it follows that the Code of Civil Procedure does not in terms apply to the writ petition, therefore, according to him Order 22 of the CPC is not applicable to writ proceedings. In support of the aforesaid contention the learned counsel for the petitioners placed reliance on a decision rendered by Division Bench of this Court in the case of Hemraj Vs. Income Tax Recovery, Jodhpur (1 ). The aforesaid argument advanced on behalf of the petitioners has been refuted by the learned counsel , for Respondent No. 5. According to him the Rules of Limitation contained in Article 120 read with Order 22 Rule 4 CPC which provides 90 days time for making an application for substitution of legal representatives is applicable to the writ proceedings.
(3.) IN support of his aforesaid contention the learned counsel , for Respondent No. 5 placed reliance on a decision of learned Single Judge of Himachal Pradesh in the case of Anant Ram Thakur Vs. Dy. Commissioner, Kulu & Ors. I have given my thoughtful consideration to the rival contentions raised at the bar. In my considered opinion before amendment of Section 141 CPC there were conflicts of decisions rendered by various High Courts of this country. Some of the High Courts have taken the view that the writ proceedings fall within the scope of Civil Jurisdiction, therefore, the provision of Section 141 CPC are applicable to writ petitions. But the aforesaid controversy has been resolved by adding an explanation to Section 141 CPC which reads as follows: - "in this Section the expression 'proceedings' includes proceedings under Order 9 but does not include any proceeding under Article 226 of the Constitution. " From the explanation added to the amended section 141 CPC it will be clear that Section 141 does not apply to proceedings under Art. 226 of the Constitution. Therefore, a contention for automatic abatment of the writ proceeding due to filing of substitution application after expiry of 90 days is not acceptable to me. Only general rules relating to substitution may be followed on the ground of equity justice and good conscience but there is no scope for imparting the technical rules of limitation contained in Art. 120 read with Order 22 Rule 4 CPC which provides 90 days time for making an application for the substitution of legal representatives. The explanation added to Section 141 CPC has now settled the controversy which existed among the various High Courts and categorically lays down that Section does not include proceeding under Article 226 of the Constitution of India. ;