Holding

Order 22 CPC is not per se applicable to writ proceedings, but the petitioner must substitute the legal representatives of a deceased respondent within a reasonable time, failing which the writ may be dismissed.

Summary

The appellants filed a writ petition under Articles 226 and 227 of the Constitution challenging an order of the Additional Director, Consolidation of Holdings, Punjab, relating to land allocation under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. During the pendency of the petition, respondent Bir Singh died on 9 December 1971, but the petitioners failed to apply for substitution of his legal representatives until the matter was listed for hearing on 14 March 1975. The Punjab & Haryana High Court dismissed the writ on the ground that the petition had abated because no steps were taken to bring the deceased respondent’s heirs on record. On appeal, the Supreme Court held that Order 22 of the Code of Civil Procedure does not automatically apply to writ proceedings, but the petitioner is nonetheless required to substitute the legal representatives of a deceased respondent within a reasonable time, guided by the limitation period under Article 120 of the Limitation Act. Failure to do so justifies dismissal, though the writ does not abate automatically and the court may condone delay in appropriate cases. Consequently, the appeal was dismissed.

Issues considered

The applicability of Order 22 of the Code of Civil Procedure to writ proceedings under Articles 226 and 227 of the Constitution.
Whether a writ petition abates automatically upon the death of a respondent.
The duty of the petitioner to substitute the legal representatives of a deceased respondent and the time frame for doing so.

Legislation cited

Constitution of Indias. Article 226, s. Article 227
East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948
Limitation Act, 1963s. Article 120

Subjects

writ jurisdictionsubstitution of legal representativesOrder 22 CPCArticle 226Article 227limitation periodabatement of proceedingscivil procedure

Judgment

A PURAN SINGH AND ORS.
v
STATE OF PUNJAB AND ORS.

JANUARY 18, 1996

B [N.P. SINGH AND K. VENKATASWAMI, JJ.]

Constit11tion of India

Articles 226, 227-Wiit proceedings-Representatives of deceased
C respondents substitution of-Held, though provisions of Order 22 of Code of
Civil Procedure not applicable per se to w1it proceedings or writ appeals, it is '
incumbent upon petitioner or appellant to get legal representatives of deceased
respondent s11bstituted within reasonable time-High Cowt was justified in
dismissing writ petition as no steps were taken by petitioners till 14.3.1975 for
substinttion of legal represelltatives of respondent who had died on 9.12.1971.
D
Code of Civil Procedure, 1908 (as amended by Civil Procedure Code) •
(Amendment Act, 1976) :

S.141, Explanation-Provisions of Codi-Applicability of the proceed-
ings under A1ticle 226 of Constitution-Held proceedings under Article 226 of
E the Co11Stitutioft have been excluded from the pwview of s.141.
Writ Jwisdiction (Pwijab and Haryana) Rules, 1976:
..
Rule 32-Applicability of provisions of Code of Civil Procedure to
proceedings •mder Article 226 of the Ccm:~titutio1t-Explained. •
F
In a writ petition arising out of the proceedings under the East
Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,
f '1948, and listed for hearing before th~ High Court on 14.3.1995, the counsel
apptltlring for respondent no. 2 tberein informed the High Court tbat the
G said respondent had died on 9.12.1971 and, as no steps for bringing bis
legal representatives on record had been taken, the writ petition was liable
to be dismissed. The Single Judge of the High Court dismissed the writ
petition accordingly. In letters patent appeal, tiled by tile appellants, tile
Division Bench of the High Court held that as the appellants had not taken
steps to bring on record the legal representatives of the deceased-respon-
H dent, the writ petition abated. Aggrieved, the appellants tiled the appeal.
730
'
PURAN SINGH v. STATE 731

It was contended for the appellants that the power conferred on the A
High Court under Articles 226 and 227 of the Constitution cannot be
circumscribed by teclmical procedural rules provided in Code of Civil
Procedure, 1908 for suit or appeal and as such provisions of Order 22 of
_the Code for substitution of legal representatives of a deceased defendant
in a suit could not be applied to writ petition under Article 226 of the
B
Constitution.

Dismissing the appeal, this Court

HELD : 1. It cannot be said that the provisions contained in Order
22 of the Code of Civil Procedure are applicable per se to writ proceedings. C
After the introduction of the Explanation to s.141 of the Code, it is clear
that when s.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. The Explanation is more
• or less in the nature of proviso, saying that the expression 'proceedings" D
; used in the section shall not include any proceeding under Article 226 of
the Constitution. The necessary corollary thereof shall be ihat it shall be
open to make applicable the procedure provided in the Code to any
proceeding in any court of civil jurisdiction except to proceedings under
Article 226 of the Constitution. [739-D, 741-B-C] E
Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Ors., AIR
(1974) SC 2105 = [1975) 2 SCR 71, relied on.

2.1. If because of the Explanation to s.141, proceeding under Article
226 of the Constitution has been excluded, there is no question of making F
applicable the procedure of Code 'as far as it can be made applicable' to
such proceeding. [739-E-F)

2.2. Merely on basis of writ Rule 32 of the Writ Jurisdiction (Punjab
& Haryana) Rules, 1976, the provisions of the Code cannot be made
applicable to writ proceedings. Apart from thats, 141 of the Code even in G
respect of other proceedings contemplates that the procedure provided in
the Code in regard to suits shall he followed "as far as it can be made
applicable". Rule 32 of Writ Rules does not specifically make provisions of
Code applicable to petitions under Articles 226 and 227 of the Constitu-
tion. It simply says that in matters for which no provision has been made H
f
I
732 SUPREME COURT REPORTS [1996] 1 S.C.R.l

A by those rules, the provisions of the Code shall apply mutatis mutandis in
so far as they are not inconsistent with those rules. [741-D-F]

Teja Singh v. Union Tenit01y of Chandigarh and Ors., AIR (1982) P &
H 169, overulcd.

B Rok)Yl)'bi v. Ismail Kllan, AIR (1984) Karnataka 234, disapproved.

3.1. The anxiety on the part of the ditrerent courts in various judg·
ments to apply the provisions of the Code to writ proceedings on the basis
of s.141 of the Code cannot be appreciated. When the Constitution has
vested extraordinary power in the High Court under Articles 226 and 227 to
c issue any order, \vrit 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 jurisdjction 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
D Court by procedural provisions prescribed in the Code. [741-G-H, 742-A·B]

Ibrahimbhai v. State, AIR (1968) Guj. 202; Panchayat Officer v. Jai
Narain, AIR (1967) All. 334; /(Jishanlal Sadhu v. State, AIR (1967) Cal. 275;
Sona Ram Ranga Ram v. Central Govemment, AIR (1963) Punjab 510 and
A. Adinarayana v. State of Andhra Pradesh, AIR (1958) Andhra Pradesh 16,
E disapproved.

3.2. When the High Court exercises extraordinary jurisdiction under
Article 226 of the Constitution, it aims at securing a very speedy and
efficacious remedy to a person, whose legal or constitutional right has been
infringed. If all the elaborate and technical rules laid down in the Code
F are to be applied to writ proceedings the very object and purpose is likely
to be defeated. [738-H, 739-A]

State of U.P. v. Vijay Anand, AIR SC (1963) 946, followed.

Bhagwa11 Singh v. Additional Director Consolidation, AIR (1968)
G Punjab 360; Chandmal v. State, AIR (1968) Raj. 20; K.B. Mfg. Co. v. Sales
Tax Commissioner, AIR (1965) All. 517; Ramchand v. Anand/al, AIR (62)
Guj. 21; !v!essers Bharat Board Mills v. Regional Provident Fund Commis-
sioner and Ors., AIR (1957) Cal. 762 and Ram Kala and Ors. v. Assistant
Director, Consolidation of Holdings, Punjab Rohtak and Ors., AIR (1977)
H· P&H 87, approved.
PURAN SINGHv. STATE 733

3.3. Of course, on many (1uestions, the provisions and procedures A
prescribed under the Code can he taken up as 6'1lide while exercising the
'.- power, for granting relief to persons, who have invoked the jurisdiction of
the High Court. It need not be impressed that different provisions and
procedures under the Code are based on well recognised principles for
exercise of discretionary power, and they are reasonable and rational. The
B
High Court should be left to adopt its own procedure fur granting relief
to the persons concerned and such procedure should be not only
reasonable but also expeditious. [742-B-D)

4.1. Even if it is held that Order 22 of the Code is not applicable to
writ proceedings or writ appeals, it does not mean that the petitioner or c
the appellant in such writ petition or writ appeal can ignore the death of
the respondent if the right to pursue remedy even after death of the
respondent survives. After the death of the respondent it is incumbent on
the part of the petitioner or the appellant to substitute the heirs of such
., respondent within a reasonable time. For purpose of holding as to what
shall be a reasonable time, the High Court may take note of the period D
~ prescribed under Article 120 of the Limitation Act for substituting the
;
heirs of the deceased defendant or the respondent. At the same time the
High Court has to be conscious that after lapse of time a valuable right
accrues to the legal representative of the deceased respondent and he
should not be compelled to contest a claim which due to the inaction of E
the petitioner or the appellant has become final. [742-E-F, 7~3-A)

• Giija Nalldilli v. Bijendra Narain, [1967) 1 SCR 93, referred to.
>
4.2. However, there is no c1uestion of automatic abatement of the writ
proceedings. Even if an application is filed beyond 90 days of the death of F
such respondent, the Court can take into consideration the facts and
circumstances of a particular case for purpose of condoning the delay in
filing the application for substitution of the legal representative. This
power has to be exercised on well known and settled principles in respect
of exercise of discretionary power by the High Court. [742-F-G]
G
__...( 43. In the instant case, the deceased-respondent in the writ petition
died on 9th December, 1971. The dispute related to consolidation of hold-
ings of lands. After the death of the deceased the right, title and interest in
the land shall be deemed to have devolved on his legal representatives. As
such the right to pursue the remedy against them survived even after the H
734 SUPREME COURT REPORTS [1996] 1 S.C.R.
(
A death of the deceased. But, for pursuing the claim against his legal repre-
sentatives the appellants ought to have taken steps to substitute him.
Admittedly, no step was taken on behalf of the appellants till 14th March,
1975. As such the High Court was justified in dismissing the writ petition
and no exception can be taken against the said order. (743-B-D]

B CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1596 of
1981.

From the Judgment and Order dated 16.3.81 of the Punjab &
Haryana High Court in L.P.A. No. 269 of 1975. 1
C R.C. Pathak and Ms. Prerna Tandon for the Appellants.

R.S. Sodhi, Ranbir Yadav for G.K. Bansal for the Respondents.

The Judgment of the Court was delivered by

D N.P. SINGH, J. This appeal has been filed against an. order dated
16th March, 1981 passed by the High Court dismissing the Appeal filed on
behalf of the appellants, and affirming the order of dismissal of the writ
petition which had been filed on behalf of Sham Singh, the father of the
appellants.
E Pursuant to a notification issued by the State Government under
Section 14 of the East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948 a scheme was prepared by the authorities in
respect of holdings belonging to Sham Singh, the father of the appellants,
Bir Singh, father of Respondent Nos. 2 and 3, Wazir Singh Respondent
F No. 4, Om Prakash Respondent No. 5 and others in Village Longowal,
Tehsil and District Sangrur Objections were filed in respect of the said
scheme including on behalf of Sham Singh and others against the proposed
allotment of land under the scheme. Those objections 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
G Bir Singh and others were rejected. Bir Singh filed further appeals against
the orders aforesaid before the Assistant Director, Consolidation of Hold-
)
ings, 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
H changes in the allotment of land. Sham Singh, the father of the appellants
PURAN SINGH v. STATE [N.P. SINGH. J.] 735

filed the aforesaid Writ Petition (Civil Writ No. 931 of 1966) for quashing A
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 1earned single Judge on 14th
March 1975 the counsel appearing for Bir Singh who was Respondent No.
B
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 had been made. It was pointed out that the impugned orders
in the writ petition were in favour of Bir Singh and as his legal repre-
sentative had not been substituted, the writ petition ought to be dismissed.
The appellants were not in a position to contradict the aforesaid assertion c
in respect of the death of Bir Singh, Respondent No. 2 to the said writ
petition. As such, the High Court dismissed the writ petition filed saying
that as Bir Singh had died on 9th December 1971 and no application for
bringing the legal representative of the deceased had been made, the writ
..., petition was not maintainable in absence of necessary parties. The Letters
D
Patent Appeal filed against the said order was also dismissed saying that
~
as the appellanL' had not taken any step to bring the legal representative
of aforesaid Bir Singh who was respondent to the writ petition, the writ
petition had abated. In this connection, reliance was placed by the Division
Bench, to the Judgment of five Judges bench of the same court in the case
of Teja Singh v. Union Tenito1y of Chandigarh and others, AIR 1982 Punjab E
& Haryana 169, where it had been held that Order 22 of the Code of Civil
Procedure (hereinafter referred to as the 'Code) was applicable to the
' proceeding under Article 226 of the Constitution of India, in view of the
• WrifRules framed by the said High Court.
F
On behalf of the appellants it was urged that Articles 226 and 227 of
the Constitution has vested extra-ordinary power in the High Court, and
the procedure thereof cannot be regulated or controlled by the provisions
of the Code because the power under Articles 226 and 227 of the Constitu-
tion has to be exercised for the ends of justice taking into consideration
the facts and circumstances of the particular case. That power cannot be G
circumscribed by technical procedural rules regarding suit or appeal as
----' provided under the Code.

A personal action dies with the death of the person on the maxim
"action personalis moritur cum persona11 • But this operates only in a limited H
736 SUPREME COURT REPORTS [1996] 1 S.C.R.

A class of actions ex delicto, such as action for damages for defamation,
assault of other personal injuries not causing the death of the party, and
in other actions where after the death of the party the granting of the relief
would be nugatory Gilja Nandini v. Bijendra Narain, [1967] 1 SCR 93. But
there were other case where the right to sue survives in spite of the death
B of the,Person against whom the proceedings 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 1
is why whenever a party to a suit dies, the first question which is to be
C 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
D 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 survives, the court, on an
E application being made in that behalf, shall cause the legal representatives
of the deceased defendant to be made a party and shall proceed with the
suit. If within the time prescribed by Article 120 of the Limitation Act. 1963
no application is made under sub-rule (1) of Rule 4, the suit shall abate as
against the deceased defendant. This Rule is based not only on the sound
principle that a suit cannot proceed against a dead person, but also on the
F principle of natural justice that if the original defendant is dead, then no
decree can be passed against him so as to bind his legal representative
without affording an opportunity to them to contest the claim of the
plaintiff. Rule 9 of Order 22 of the Code prescribes the procedure for
setting aside abatement.
G
The question with which we are concerned is as to whether the
aforesaid provisions made under Order 22 of the Code are applicable to
proceedings under Articles 226 and 227 of the Constitution. Prior to the
introduction of an explanation by Civil Procedure Code (Amendment) Act
H 1976, Section 141 of the Code was as follows :
\

~

PURAN SINGHv. STATE [N.P. SINGH,J.] 737

"141. Misce/la11eous proceedi11gs - The procedure provided in this A
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."

The explanation which was added by the aforesaid Amending Act said :

11
Explanation - In this section, the expression 11 proceedings 11 in- B
eludes proceedings under Order IX, but does not include any
proceeding under Article 226 of the Constitution."

There was controversy between different courts s to whether the different
provisions of the Code shall be applicable even to writ proceedings under
Articles 226 and 227 of the Constitution. Some High Courts held that writ
c
proceedings before the High Court shall be deemed to be proceedings "in
any court of civil jurisdiction" within the meaning of Section 141 of the
Code. (Ibrahimbhai v. State, Air 1968 Gujarat 202; Pa11chayat Officer v. Jai
Narain, AIR 1967 All. 334; Klishanlal Sadhu v. State, AIR 1967 Cal. 275;
Sona Ram Ra11ga Ram v. Ce11tral Govemmmt, AIR 1963 Punjab 510; A. D
Adi11arayana v. State of A11dhra Pradesh, AIR 1958 Andhra Pradesh 16).
However, in another set of cases, it was held that writ proceeding being a
proceedings of a special nature and not one being in a court of civil
jurisdiction Section 141 of the Code was not applicable. Bhagwan Singh v.
Additio11al Director Consolidation, AIR (1968) Punjab 360; Cha11dmal v. E
State, AIR (1968) Rajasthan 20; KB. Mfg. v. Sales Tax Commissio11er, AIR
(1965) All. 517; Ramcha11d v. A11a11dlal, AIR 1962 Gujarat 21; Messers
Bharat Board Mills v. Regio11al Provident Fund Commissio11er a11d Others,
AIR 1957 Cal. 702.

Even before the introduction of the explanation to Section 141 of the F
Code, this Court had occasion to examine the scope of the said Section in
the case of Babublzai Mullibhai Patel v, Na11dla/ Khodidas Baral 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 G
-~
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 H
f
738 SUPREME COURT REPORTS [1996] 1 S.C.R.

A 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 those of a suit, the court must take into
account the nature of those proceedings and the relief sought. The
object of Article 226 is to provide a quick and inexpensive remedy
to aggrieved parties. Power has consequently been vested in the
B High Courts to issue to any person or authority, including in
appropriate cases any government, within the jurisdiction of the
High Court, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari. It is
plain that if the procedure ofa suit had also to be adhered to in
c the case of writ petition, the entire purpose of having a quick and
inexpensive remedy would be defeated. A writ petition under
Article 226, it needs to be emphasised, is essentially different from
a suit and it would be incorrect to assimilate and incorporate the
procedure of a suit into the proceedings of the petition under
Article 226".
D
It can be said that in the judgment aforesaid, this Court expressed the view
that merely on basis of Section 141 of the Code it was not necessary to
adhere to the procedure of a suit in writ petitions, because in many cases
the sole object of writ jurisdiction to provide quick and inexpensive remedy
E to the person who invokes such jurisdiction is likely to be defeated. A
Constitution Bench of this Court in the case of State of U.P. v. Vijay Anand,
AIR (1963) SC 946 said as follows : '

"It is, therefore, clear from the nature of the power conferred under
F Art. 226 of the Constitution and the decisions on the subject that the High
Court in exercise of its power under Art. 226 of the Constitution exercises
original jurisdidion, though the said jurisdiction shall not be confused with
the ordinary civil jurisdiction of the High Court. This jurisdiction, though
original in character as contrasted with its appellate and revisional juris-
dictions, is exercisable throughout the territories in relation to which it
G exercises jurisdiction and may, for convenience, be described as extraordi- h._
nary original jurisdiction.TT

When the High Court exercises extraordinary jurisdiction under Article
226 of the Constitution, it aims at securing a very speedy and efficacious
H remedy to a person, whose legal or constitutional right has been infringed.
\

'\
PURAN SINGHv. STATE IN.P.SINGH.J.] 739
,, If all the elaborate and technical rules laid down in the Code are to be A
applied to writ proceedings the very object and purpose is likely to be
defeated. According to us, in view of the conflicting opinions expressed by
the different courts, the Parliament by the aforesaid amending Act intro-
duced the explanation saying that in Section 141 of the Code the expression
"proceedings" does not include "any proceedings under Article 226 of the
B
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 c
applicable "in all proceedings in any court of civil jurisdiction" it shall not
include a proceeding under Article 226 of the Constitution. In this back-
ground, 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 D
case of Babubilai v. Nandlal (supra) had said that the words "as far as it
can be made applicable occurring in Section 141 of the Code made it clear
that in applying the various provisions of the Code to the proceedings other
than those of a suit, the court has to take into consideration the nature of
those proceedings and the reliefs sought for" after introduction of the
explanation the writ proceedings have to be excluded from the expression E
"proceedings" occurring in Section 141 of the Code. If because of the
explanation, proceeding under Article 226 of the Constitution has been
excluded, there is no question of making applicable the procedure of Code
'as far as it can be made applicable' to such proceeding. The procedures
prescribed in respect of suit in the Code if are made applicable to the writ F
proceedings then in many cases it may frustrate the exercise of extraordi-
nary powers by the High Court under Articles 226 and 227 of the Constitu-
tion.

But then can it be said that as the provisions of Order 22 of the Code G
are not applicable to writ petitions, the party who has invoked the jurisdic-
tion of the High court by filing such writ petition under Articles 226 and
227 of the Constitution i> at liberty to proceed with sucb writ petitions
against a dead respondent? Can the High Court pass an order without
hearing the legal representative of such deceased respondent even in cases
where right to sue survives against the legal representative of such deceased H
740 SUPREME COURT REPORTS [199611 S.C.R.

A respondent? If such legal representative is not brought on the record, any
order passed against the original respondent after his death shall not be
binding on them because they have not been heard. The order of the High
Court shall be deemed to have been pa'5ed against a dead person. If the
right of the petitioner to pursue the remedy survives even after the death
B or the original respondent to the writ petition, then on the same principle
even the right to contest that claim survives on the part of the legal
representative of the deceased respondent. In such a situation, after the
death of the respondent if the right to sue survives against the legal
representative of such respondent, then the petitioner has to substitute the
legal representative of such respondent before the writ petition can
C proceed and can be heard and disposed of. The petitioner has to take steps
for substitution of legal representative within a reasonable time. It need not
be impressed that 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 year> and then to direct them to contest the claim of the
D petitioner merely on the ground that after the death of the original respon-
dent the right title or the interest of such respondent has devolved on them.

In the case of Ram Kala and Others v. Assistant Direct01; Consolida-
tion of Holdings, Punjab, Rohtak and Ot/1e1:s, AIR 1977 Punjab & Haryana
87 a Full Bench of three Judges held that Article 137 of the Schedule to
E the Limitation Act does not apply to an application for adding or substitut-
ing 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
F same court in the case of Teja Singh v. Union Tenitory 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 had been made by those Rules, the
provisions of Civil Procedure Code shall apply mutatis mutandis in so far
as they were not inconsistent with those Rules. It was held that the
G explanation which had been added to Section 141 of the Code by the ~-
aforesaid Amending Act, did not in any way nullified the effect of Rule 32
of the Writ Rules. Rule 32 of the Writ Rules is as follows :

11
32. In all matters for which no provision is made in these rules,
H the provisions of the Code of Civil Procedure, 1908, shall apply
\

~
PURAN SINGH v. STATE [N.P. SINGH, J.] 741

mutatis mutandis insofar as they are not inconsistent with these A
rules. 11

On a plain reading, Section 141 of the Code provides that the
procedure provided in the said Code in regard to suits shall be followed
"as far as it can be made applicable in all proceedings". In other words, it
B
is open to make the procedure provided in the said Code in regard to suits
applicable to any other proceeding in any court of civil jurisdiction. The
explanation which was added is more or less in the nature of proviso, saying
that the expression "proceedings" shall not include any proceeding under
Article 226 of the Constitution. The necessary corollary thereof shall be
that it shall be open to make applicable the procedure provided in the c
Code to any proceeding in any court of civil jurisdiction except to proceed-
ings under Article 226 of the Constitution. Once the proceeding under
Article 226 of the Constitution has been excluded from the expression
"proceedings" occurring in Section 141 of the Code by the explanation, how
on basis of Section 141 of the Code any procedure provided in the Code D
i can be made applicable to a proceeding under Article 226 of the Constitu-
tion? In this background, how merely on basis of Writ Rule 32 the
provisions of the Code shall be applicable to writ proceedings? Apart from
that, Section 141 of the Code even in respect of other proceedings con-
templates that the procedure provided in the Code in regard to suits shall
be followed "as far as it can be made applicable". Rule 32 of Writ Rules E
does not specifically make provisions of Code applicable to petitions under
Articles 226 and 227 of the Constitution. It simply says that in matters for
which no provision has been made by those rules, the provisions of the
Code shall apply mutatis mutandis in so far as they are not inconsistent
with those rules. In the case of Rokvaybi v. Ismail Khan, AIR (1984) F
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.
G
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 H
(
I
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742 SUPREME COURT REPORTS (1996] 1 S.C.R.

A 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
B procedures prescribed under the Code can be taken up as guide while
exercising the power, for granting relief to persons, who have invoked the
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jurisdiction of the High Court. It need not be impressed that different
provisions and procedures under the Code are based on well recognised
principles for exercise of discretionary power, and they are reasonable and
C rational. But at the same time, it cannot be disputed that many procedures
prescribed in the said Code are responsible for delaying the delivery of
justice and causing delay in securing the remedy available to a person who
pursues such remedies. The High Court should be left to adopt its own
procedure for granting relief to the persons concerned. The High Court is
D expected to adopt a procedure which can be held to be not only reasonable
but also expeditious.

As such even if it is held that Order 22 of the Code is not applicable
to writ proceedings or writ appeals, it does not mean that the petitioner or
the appellant in such writ petition or writ appeal can ignore the death of
E the respondent if the right to pursue remedy even after death of the
respondent survives. After the death of the respondent. it is incumbent on
the part of the petitioner or the appellant to substitute the heirs of such
respondent within a reasonable time. For purpose of holding as to what
shall be a reasonable time, the High Court may take note of the period
F prescribed under Article 120 of the Limitation Act for substituting the heirs
of the deceased defendant or the respondent. However, there is no ques-
tion of automatic abatement of the writ proceedings. Even if an application
is filed beyond 90 days of the death of such respondent, the court can take ·
into consideration the facts and circumstances of a particular case for
G purpose of condoning the delay in filing the application for substitution of
the legal representative. This power has to be exercised on well known and
settled principles in respect of exercise of discretionary power by the High
Court. If the High Court is satisfied that delay, if any, in substituting the
heirs of the deceased respondent was not intentional, and sufficient cause
has been shown for not taking the steps earlier, the High Court can
H substitute the legal representative and proceed with the hearing of the writ
PURAN SINGH v. STATE [N.P. SINGH, J.] 743

'> ~ petition or the writ appeal, as the case may be. At the same time the High A
Court has to be conscious that after lapse of time a valuable right accrues
to the legal representative of the deceased respondent and he should not
be compelled to contest a claim which due to the inaction of the petitioner
or the appellant has become final.

So far the facts of the present appeal is concerned, Bir Singh died B
on 9th December, 1971. The dispute related to consolidation of holding of
lands. After the death of Bir Singh the right title and interest in the land
shall be deemed to have devolved on his legal representative. As such the
right to pursue the remedy against them survived even after the death of
Bir Singh. But for pursuing the claim against the legal representative of Bir c
Singh, the appellants ought to have taken steps to substitute him. Admit-
tedly, no step was taken on behalf of the appellants till 14th March, 1975.
As such the High Court was justified in dismissing the writ petition and no
exception can be taken against the said order. The appeal accordingly fails
and it is dismissed. But there shall be no orders as to cost.
D
R.P . Appeal dismissed.

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