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Civil Revision Petition No. 676 of 1942, under section 25 of Act IX of 1887 (Small Cause Courts Act), for revision of the decree of Judge Small Causes at Lahore, dated the 21st July 1942, dismissing the plaintiff's suit.
(This case was referred by Sir Abdur Rahman Kt., A. C. J., vide his order dated the 30th Aprill 1948 to a Division Bench, consisting of Sir Abdur Rahman, A. C. J. and Mr. Justice Muhammad Khurshid Zaman. This Bench again referred this case to a Full Bench consisting of Sir Abdur Rahman, A. C. J., Mr. Justice Cornelius and Mr. Justice Muhammad Khurshid Zaman, vide its order dated the 18th June 1948.
Full Bench again referred the case to the above noted Division Bench (consisting of Sir Abdur Rahman, A. C. J. and Mr. Justice Muhammad Khurshid Zaman) vide its order dated the 2nd July 1948.)
Civil Procedure Code (V of 1908), O. XXII, r. 3‑Is not applicable to revisions‑Petition for revision cannot, therefore, be dismissed on ground of abatement‑Civil Procedure Code (V of 1908), S. 141 Indian Limitation Act (1X of 1908), First Schedule, Art. 176.
Order XXII, rule 3, Civil Procedure Code, is not applicable to revisions and a petition for revision cannot, therefore, be dismissed on the ground of abatement.
Art. 176 of the Indian Limitation Act (IX of 1908) only applies to are application made to bring the legal representative of a deceased plaintiff (which means in a suit) or of a deceased appellant (which means in an appeal) on record. There is thus nothing in this Article which would attract its provisions to a revision.
Section 141 of the Code of Civil Procedure applies to the procedure provided in the Code in regard to suits (the omission of the word "appeal" is significant) to all proceedings in any Court of Civil Jurisdiction. The section is so drafted as to enable a Court to apply the procedure in regard to suits to such proceedings as are in pari materia with suits and thus original in character. A revision is very much unlike a suit although it may share many common features with an appeal. The procedure provid ed for suits would be mostly inapt and inappropriate to proceedings in revision.
I L R 17 All. 106 (111) P C referred to.
To extend the procedure provided for suits to revisions would, in the absence of any reference to an appeal or to an appellate Court in sec tion 141, (the omission being deliberate as the procedure for appeals is provided in O. XLI of the Code) put such a strain on its language as it cannot stand.
21 I C 407 ; A I R 1927 Lah. 13 F B ; A I R 1938 Mad. 115 distinguished.
B. Z. Kaikaus for Petitioner.
Mahbub Elahi for Respondent.
--- Nawab Saadat Ali Khan brought a suit for damages against the Administrator of the Lahore Municipality. It was dismissed by the judge of the Court of Small Causes at Lahore on the 21st July 1942. He filed a revision against that decision on the 19th October 1942. This came up originally before a learned Single judge of this Court who referred the whole case on the 13th January 1944 for decision by a Division Bench. On the 23rd June 1944 the Division Bench referred the question of limitation, for decision by a Full Bench. It came up before a Full Bench composed of three judges of this Court and the matter was referred by them on the 6th November 1944 to a larger Bench for decision. The case was then laid before a Full Bench of five judges. They expres sed their opinion on the 28th May 1945. The revision should then have been placed for disposal before the Division Bench but it was not. It appears on the contrary that the records were returned to the Court of Small Causes on the 6th July 1945.
Nawab Saadat Ali Khan died on the 8th September 1945. Since the records were sent erroneously to the trial Court, an application was made by his legal representatives to be brought on the record on the 8th Decem ber 1945. This was, however, dismissed as being barred by limitation.
The office discovered on the 16th December 1947 that the revision had not been until then finally disposed of. A notice was, therefore, issued to the parties and the revision was laid before a learned Single Judge of this Court although it should have been laid before a Division Bench in accordance with the orders passed on the 13th January 1944. When the matter came up before me, an application was made by the legal represen tatives of Nawab Saadat Ali Khan to be brought on the record. This was opposed by learned counsel for the respondent.
Learned counsel for the petitioners contends that inasmuch as O. XXII does not apply to revisions, the revision filed by Nawab Saadat Ali Khan cannot be held to have abated. In any case he urges that his application to bring Nawab Saadat Ali Khan's legal representatives on the record may be allowed as it cannot be held to be barred by limitation, no limitation being provided for applications to bring legal representatives on records in revisions. He relies on the decision in Nawab Syed Qasim Hussain v. Seth Piare Lal (A I R 1939 Oudh 277) in support of his con tentions. Learned counsel for the respondents on the other hand contends that the provisions of O. XXII have to be read with section 141 of the Code of Civil Procedure and since no application was made within the time prescribed, the revision must be held to have abated.
It is doubtful in my view whether the provisions of section 141 can be held attracted to revisions. I am personally inclined to bring the legal representatives of Nawab Saadat Ali Khan, on the record. And although this application can be granted by me sitting alone regardless of the fact that the revision has to be disposed of by a Division Bench in accordance with the order passed by Mr. Justice Backette on the 13th January 1944, I would rather say that this application on behalf of Nawab Saadat Ali Khan's heirs was also dealt with and disposed of by the Division Bench. Let it be placed before a Division Bench of this Court on the 15th June 1948.
‑When I discussed the matter with Khurshid Zaman J. while rising from Court yesterday although the hearing of the application was not finished, it appeared to me that he would rather have a third judge also to dispose of the matter. Let Cornelius, J. join us on Monday after lunch and matter will be heard and disposed of by a Special Bench composed of Cornelius, J. and Khurshid Zaman J. and myself.
The facts were given by me in my order dated the 30th April 1948 and need not be repeated. It may be read as a part of this order. In pursuance of that order the matter was first placed before a Division Bench and was, at its suggestion, sub sequently referred to a Full Bench. Since no application was made by the legal representatives of Nawab Saadat Ali Khan within ninety days of his death, the only question which arises for decision in this reference is whether the revision filed by him has abated under O. XXII r. 3 (2) of the Code of Civil Procedure
Learned counsel for the respondent contends that the limitation of ninety days provided by Art. 176 of the Indian Limitation Act also applies to applications in revision. Order XXII, r. 3 of the Code of Civil Procedure has, in his submission, to be read in conjunction with section 141 of that Code and if it is so done the limitation provided by Art. 176 will have to be extended to revisions as well. The relevant provisions to which reference has to be made in this connection may be reproduced :‑
Section 141 of the Code of Civil Procedure :‑
"The procedure provided in this 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."
Order XXII, r. 3, of the Code of Civil Procedure :‑
"(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit "
"(2) Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."
Order XXII r. 11 of the Code of Civil Procedure :‑
"In the application of this Order to appeals, so far as may be the word plaintiff' shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal."
Article 176 of the Indian Limitation Act
| "Description of application Period of Time from which period Limitation begins to run
176. Under the same Code (Code of Civil Procedure) to Ninety The date of the death have the legal ‑ representa‑ days of the deceased plaintiff or tive of a deceased plaintiff appellant." or of a deceased appellant made a party |
Reliance was placed by learned counsel for the respondent on the decisions reported in Mary Gold v. Goldenbare (I L R 16 Bom. 550) ; Jiwani v. Bhagal Singh (97 P R 1907) ; Anandamovi Dasi v. Rudra Mahanti (21 I C 407) ; Basant Lai v. Chiranji (I L R 56 All. 39) ; Basawanjanayulu v. Ramalingayya (A I R 1938 Mad. 115) ; Maha Ram v. Harbana (A I R 1941 All. 101, F. B.) and Ajudhia Pershad Ram Pershad v. Sham Sunder (A I R 1947 Lah. 13, F. B.)
Before dealing with the cases to which our attention was drawn on behalf of the respondent I should like to observe that in terms O. XXII, r. 3 applies to .suits only and had it not been clearly stated in r. 11 of that order that the word "plaintiff" shall include an appellant, the word "defendant" a respondent, and the word "suit" an appeal, the penal provisions of sub‑rule (2) of rule 3 could not be held to have been attracted to appeals. By virtue of rule 11, however, the provisions of O. XXII, r. 3 were extended to appeals with the result that they would also abate in the same manner as a suit would have done merely by passage of time if no applications were made to bring appellants legal representatives on the record within the time prescribed by law viz. by Art. 176 of the Indian Limitation Act. It would be noticed, however, that no reference has been made in this order to revisions and but for the attempt which is being made to press section 141, Civil Procedure Code, into service it would rot have been possible to urge that the sanction contained in sub‑rule (2) of O.XXII, rule 3 would apply to revisions as well. The contention in regard to the applicability of section 141, Civil Procedure Code, would be examined by me in its appro priate place but it must be pointed out that when referring to the limit of time within which an application to bring the legal representative of a deceased plaintiff or appellant has to be made, recourse must be had to the provisions of the Indian Limitation Act although no express reference to them is made in rule 3 of O. XXII, for in the absence of any specific provision either in the Code of Civil Procedure or in any other special enactment which is declared to apply to such an appli cation, one must necessarily look to the provisions of the Indian Limitation Act for the purpose of ascertaining the limitation within which it has to be made. The only article to which our attention was invited in this connection was Article 176. But as would be seen from its words it only applies to an application made to bring the legal representative of a deceased plaintiff (which means in a suit) or of a deceased appellant (which means in an appeal) on record. There is thus nothing in this Article which would attract its provisions to a revision and since it is not possible to add to the words used in an Article of the Indian Limitation Act and to extend its operation by analogy or otherwise to anything. which is not covered by the description given in the first column of that Article, it would follow that the mere application of section 141 of the Code of Civil Procedure to a revision petition would not satisfy learned counsel for the respondent as the section does not provide for limitation ; and even if O. XXII, rule 3, Civil Procedure Code, could be held to extend to revisions by virtue of section 141 of the Code, a period of limitation not provided for by Article 176 (which contains no provision in regard to a revision) could not be applied to it. By reading the provisions of section 141 in conjunction with O.XXII, rule 3 of the Code, the provisions of the Indian Limitation Act could not be amended and that is after assuming, without conceding, that the terms of section 141 could apply to revisions. In other words, on a construction of Article 176 of the Indian Limitation Act alone, I am of the view that it cannot be applied to revisions. And unless that could have been done, learned counsel for the respondent could not hope to succeed.
Nor is the contention advanced by learned counsel for the respondent that section 141 of the Code of Civil Procedure applies to petitions for revision possessed, in my opinion, of any force. That section applies the procedure provided in the Code in regard to suits (the omission of the word "appeal" is significant) to all proceedings in any Court of Civil Jurisdiction. In my view, the section is so drafted as to enable a Court to apply the procedure in regard to suits to such proceedings as are in pari materia with suits and thus original in character. A revision is very much unlike a suit although it may share many common features with an appeal. The procedure provided for suits would be mostly inapt and inappropriate to proceedings in revision. Had the Legislature intended to lay down any particular procedure as regards revisions I would have expected to find it somewhere in the proximity of O. XLVI (Reference) or O. XLVII (Review) or in O. XLI, which relates to appeals. The view that I have formed as to the construction of section 141 derives support to some extent at least from the observations of their Lordships of the Privy Council in Thakur Prasad v. Fagir Ullah (I L R 17 All. 106 at p. 111) where they observed.:‑
"The proceedings spoken of in section 647 (of the old Code which was replaced by section 141 of the Code in 1908 and which if any thing was more general than the present section) include original matters in the nature of suits such as proceedings in probates, guardianships and so forth and do not include executions".
I am fully aware that their Lordships were in that case called upon to decided whether section 647 applied to executions‑but in holding that it did not, their Lordships were called upon to construe the section and indicated what it was in their view intended to be applicable to and their observations can, therefore, be legitimately relied upon.
To extend the procedure provided for suits to revisions would in the absence of any reference to an appeal or to an Appellate Court in section 141, (and the omission was deliberate as the procedure for, appeals is provided in O. XLI of the Code) put such a strain on its' language as it cannot stand and which is in my view not permissible.
In support of his contention that section 141 was intended to be applicable to revisions, learned counsel for the respondent had cited a number of decisions to which reference has been made earlier in this judgment. But most of these have no application to the point under con sideration. It is true that a passing reference was made in Mary Gold v. Berl Goldenberg (I L R 16 Bom. 550) to section 647 of the old Code of Civil Procedure which was, as pointed out before more generally ex pressed than section 141 of the Code which is now in force but the point which the learned judges of the Bombay High Court were invited to decide in that case was whether the orders passed in revisions would be executable in the same way by the trial Court as the orders passed by a High Court in its appellate jurisdiction. Section 141 of the new Code has been at least now expressly declared to be inapplicable to execution proceedings and whether that was so or not, an executable order passed by the High Court on its revisional side had to be executed, at the risk of its otherwise being a dead letter, in the same manner as a decree passed on an appeal and that would have been so whether section 647 of the old Code had been on the statute book or not. The Code of Civil Procedure was not exhaustive when no specific provisions existed in the Code in regard to a particular matter i.e., execution of decrees passed in revisions and the Court was not only entitled but bound to act according to the well‑known principles of justice, equity and good conscience and to invent a procedure when none was specified.
Similarly a reference was made to section 647 of the old Code by a Division Bench of the Punjab Chief Court in Jiwani v. Bhagal Singh (97 P R 1907) when it was called upon to decide whether an application for setting aside an order dismissing a revision petition for default could be ordered to be restored by them. It must, however, be pointed out that the learned judges did not base their conclusion entirely on that section (section 647) for they observed at p. 457 that "the power to dismiss for default in proceedings which in their nature so much approximate to appellate proceedings, naturally connotes the power to restore after default, when the default is satisfactorily explained." It may be observed that in both of these cases the learned judges were trying to find some authority for passing an order which should have been in their opinion passed by them ex debito justiae or to prevent an injustice and not trying to extend the penal provisions of a section which was not in terms applic able. They were thus trying to arm themselves possibly by analogy‑to administer justice and not to perpetuate injustice by the application of some technical rule or provision to cases where it was not expressly declared to be applicable as learned counsel for the respondent is asking us to do.
Great emphasis was laid by learned counsel on the Calcutta decision in Anandamoyi Dasi v. Rudra Mahanti (21 I C 407)‑to which an eminent judge like Sir. Ashutosh Mukerjee was a party and where a Rule issued in a revision at the instance of a counsel whose client had died before the application was actually moved in Court was discharged on the ground that the principle contained in O. XXII r. 3 was applicable to revisions as well. This was emphasised on account of certain observations made by one of us in a Full Bench decision reported in Ajudhia Pershad Ram Pershad v. Sham Sunder (A I R 1947 Lah. 13). It is sufficient, however, to point out that the learned judges of the Calcutta High Court had really held in that case that the Rule could not be issued at the instance of a person who was dead at the time when an application was made on his behalf and that the Rule thus issued was therefore plainly a nullity. It was, therefore, unnecessary for them to rely on or refer to the principle contained in rule 3 of Order 22 of the Code of Civil Procedure for they were not called upon to decide whether the revision filed in that case had abated and that is why I take it a reference was made to the principle on which Order XXII rule 3 was based and not to that rule itself. In any case, the learned judges did not decide and there was no scope for the decision that revisions were liable to abatement in the same way as suits or appeals were.
The decision in Basant Lal v. Chiranji (I L R 56 All. 390) is of no help to the respondent as in that case the proceedings were sent by a Revenue Court under section 271 of the Agra Tenancy Act, 1926, for the decision of a specific issue which could not be determined by the Revenue Court itself under that Act. It is obvious that when dealing with that issue the Civil Court was exercising its original jurisdiction in the. same manner as it would have exercised it in respect of a suit where the same issue had been raised and to such proceeding section 141 would have been even according to my interpretation applicable.
It would be convenient at this stage to refer to Maha Ram v. Harbans A I R 1941 All. 101, (F B) where the provisions of Schedule 2, Civil Procedure Code, were held applicable to proceedings under section 271 of the Agra Tenancy Act. It is true that in doing so the learned judges had referred to section 141 of the Code but this did not show that they were prepared to extend its operation to revision petitions. The remarks made by me in regard to the determination by a Court of an issue in the exercise of its original jurisdiction are equally applicable to this case.
As for the Full Bench decision of this Court reported as Ajudhia Pershad Ram Pershad v. Sham Sunder (A I R 1947 Lah. 13) the question whether Order XXII could be held to apply to revisions was left expressly undecided by two of the three learned judges who had declined to express any opinion on that question. It must, however be conceded that the third learned judge was inclined to take the view that if an application was not made for bringing the legal representatives of the deceased respondent on the record, a petition for revision would be liable to dismissal "for failure to prosecute". But that is not the point which this Bench has been constituted to consider. It is worthy of note, however, that in spite of a reference to the Calcutta decision in Anandamoyi Dasi's case (21 I C 407), the learned judge was not inclined to apply the terms of or the principle on which O. XXII, r. 3 was based but was basing his opinion on an entirely different and well known principle with which we are not, at least for the present, concerned.
That brings me to the last and the only relevant Madras case cited by learned counsel for the respondent, where a learned Single judge of that Court had held that Order 28 rules 3 and 4 were applicable to pro ceedings under section 115 and that an order passed by the High Court on a petition under section 115 in ignorance of the fact of death of the petitioner more than ninety days previously was one made without jurisdiction and was a nullity. It must, however, lie remembered that the petitioner had in that case died on the 7th January 1934 while the High Court had passed the order on the 10th May 1934. It seems, therefore, that no serious objection could be taken to the decision holding the order passed by the High Court either in favour or against a dead man to be nullity. But in coming to that decision the learned judge held that the petition had abated on the 7th April 1934, i.e., ninety days after petitioner's death since his legal representatives had not applied to be brought on the record within that period. In doing so reliance was placed by him on Order XXII, r. 3 of the Code of Civil Procedure and on Article 176 of the Indian Limitation Act. I have already quoted them in extenso and shown that they are not in terms applicable to revisions. It was, first of all, argued before the learned Judge that it was unnecessary to bring the legal representatives of the party on the record as the matter was entirely between the High Court and the trial Court. And although no serious exception could have been taken, as I would show later, to the argument that usually the questions arising in revisions are really between the High Court and the subordinate Court particularly if the records of a case have been sent for by the High Court suo motu as they could be under section 115 of the Civil Procedure Code, yet the contention that the High Court could pass an order against a dead man or even in his favour without bringing his legal representatives on the record was surely unsound for obvious reasons.
The other contention raised by learned counsel for the respondent before Stodart J. that O. XXII did not apply to proceedings under section 115 and there could therefore be no abatent in the case of a petition filed under that section was, however, repelled on the short ground that if O XXII did not apply, the natural consequence would be that on the death of a party the application abated at once. But I failed to appreciate why the second possible alternative that it would not abate at all did not occur to the learned Judge as a probable answer. To this observation and I say so with great difference to Stodart J. I take exception. I have already given my reasons for my view earlier in this judgment and it is unnecessary to restate them here: But in view of the fact that the decision was in that case a nullity, it was hardly necessary for the learned judge to go into that matter. The observations must, therefore, be regarded to be in the nature of an obiter: I might, however, add that a reference by Stodart J. and I say so again with great deference‑to any practice prevailing in the Madras Court was not correct. I had the privilege of sitting in that Court for a number of years and was never made aware of any such practice. Be that as it may, a question like this could not depend on practice but on a correct interpretation of law as found in the Statute Books of the country.
This brings me to the third reason why in my opinion the provisions of O. XXII cannot be held attracted to revision proceedings. The High Courts have the powers to deal with revisions under section 115 of the Code of Civil Procedure which reads as hereunder :‑
"115. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such sub ordinate Court appears‑
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularilty, the High Court may make such order in the case as it thinks fit".
These powers are limited and can only be exercised in the three cases mentioned therein and that only ex debito justiae. If the High Court decides to act under section 115 suo mote; can it legitimately contend that it would have no power left to do so only because a party to the case had died either before or even after the date on which it was decided to take action under this section I do not think so. If the High Court finds injustice to have been done, should it be allowed to remain per petuated simply because one of the parties to the case had happened to die before or after the order calling for the record of the case had been passed by the High Court By whom, moreover, is an application to bring the deceased's legal representatives on the record to be made Surly not by the Court. It could have ordered them to be brought on the record but to that order Article 176 of the Limitation Act is not applicable. It only applies to applications. This was a simple case. But: what about petitions for revision which have been filed by private individuals They have no legal right to be heard in support of such applications although as a matter of prudence they usually are‑and if the Legislature had merely intended private individuals of parties to a case to draw the attention of the High Court as the words of section 115, Civil Procedure Code, seem to me to indicate, it could not be prevented from making the legal representatives of a deceased petitioner or respondent consequent either on one death or on a series of deaths as parties to the proceedings in revision. For to hold that it had no such power would be tantamount to holding that it cannot do justice even in the limited number of cases referred to in section 115 and even when it is clearly of the view that it should interfere in order to do complete justice between the parties or their legal representatives as the case may be within the terms of that section.
Learned Counsel for the petitioner has drawn our attention to Bakhsho v. Piaro (A I R 1920 Sind 120) and to Naoomal Tourmal v. Tarachand Sobhraj (A I R 1933 Sind 200) and with them I find myself respectfully in agreement.
I would for the above reasons hold that O. XXII, rule 3, Civil Procedure Code, is not applicable to revisions and a petition for revision could not, therefore, be dismissed on the ground of abatement. Whether, the legal representatives of Nawab Saadat. Ali Khan should in the present case be brought on the record in the circumstances or not is left to be decided by the Division Bench. As the‑ point was not free from difficulty, there will be no order as to the costs of this reference. It will be placed before the Division Bench for hearing on Tuesday, 6th July, 1948.
---‑ I agree entirely, and have nothing of my own to add.
.--‑ I concur.
‑In view of the decision of the Full Bench, the application for revision to this Court must be held not to have abated. Since no limitation is provided by the Indian Limitation Act for bringing the legal representatives of the deceased on the record, the application for bringing them as petitioners in place of Nawab Saadat Ali Khan is allowed and they may now be brought on the record.
The case would now go back to the Court of Small Causes at Lahore for being disposed of on the other issues‑in accordance' with law. Parties are directed to appear before the Court of Small Causes at Lahore on the 26th July, 1948.
A. H. Reference answered.
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