Allahabad High Court
Triloki Saran Pathak And 2 Ors. vs Board Of Revenue And 6 Ors. on 12 October, 2015
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 6
Case :- WRIT - B No. - 32075 of 2015
Petitioner :- Triloki Saran Pathak And 2 Ors.
Respondent :- Board Of Revenue And 6 Ors.
Counsel for Petitioner :- Shakti Dhar Dube,Neeraj Dube
Counsel for Respondent :- C.S.C.,Amitabh Agarwal,M C Singh
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the petitioners and Sri M.C. Singh who has filed a counter affidavit on behalf of respondent no. 7.
The writ petition has been filed challenging the order dated 05.02.2015 passed by the Board of Revenue whereby the revision filed by the petitioner was ordered to abate on the ground that several of the parties thereto had expired but no substitution applications had been filed to bring on record their legal heirs and representatives.
This revision was filed against an order passed in proceedings under Section 41 of the U.P. Land Revenue Act, at the instance of the contesting respondents.
Learned counsel for the petitioners has submitted that an abatement application to abate the revision had been filed on 03.02.2015 and the same was allowed vide order dated 05.02.2015 without providing any opportunity to the petitioners to rebut the same.
Learned counsel for the respondent no. 7 on the other hand submitted that the order dated 05.02.2015 had been passed after hearing the petitioners' counsel and therefore, it cannot be said that no opportunity was granted to the petitioner.
Be that, as it may, the controversy sought to be raised by means of this petition is of purely academic interest.
In view of para 60 of the Revenue Court Manual, the provisions of Order 22 of the Civil Procedure Code apply to proceedings under the U.P. Land Revenue Act, 1901.
It is further clear from a bare reading of Order 22 Rule 3(2) and Order 22 Rule 4 (3) of the Civil Procedure Code that on the death of the plaintiff or defendant, the abatement is automatic, on the expiry of the period of limitation prescribed for filing a substitution application.
Article 120 of the Schedule to the Limitation Act provides that the limitation to bring on record the legal representative of a deceased plaintiff, appellant, defendant or respondent in proceedings under the Civil Procedure Code, as 90 days Article 121 provides that in proceedings to which the Civil Procedure Code applies, the limitation for an application for setting aside abatement is 60 days.
Order 22 Rule 5 applies the provisions of the Limitation Act, 1963 to applications under Order 22 and also empowers the court to condone the delay in filing a substitution application, on an application under Section 5 of the Limitation Act.
It is therefore, clear that there is automatic abatement on the death of a party, once the period of ninety days provided for filing a substitution application expires. This abatement is automatic and comes into effect without the intervention of the court. Further, the Limitation Act provides a limitation of sixty days for setting aside this automatic abatement on the death of a party.
After the expiry of the period of 150 days, from the date of death of a party, which includes the period of ninety days, provided for filing the substitution application and the further period of sixty days for setting aside the automatic abatement, any substitution application must necessarily be accompanied by an application under Section 5 of the Limitation Act for condonation of delay.
While considering an application under Section 5 in case, the court finds the explanation for delay to be sufficient, it sets aside the abatement, allows the substitution application and thereafter proceeds to hear the matter on its merit.
In the aforesaid scenario, I see very little scope of interference by the writ court in the instant matter, even more so, because the petitioner is unable to dispute the fact that several of the parties to the revision were dead and the limitation for filing the substitution application as also for setting aside abatement had already expired.
Under the circumstances, therefore, the proper remedy available to the petitioner is to file a substitution application along with applications for setting aside the abatement as also for condonation of delay in the revision itself, which has been abated by the order impugned.
In case, such an application is filed, it is incumbent for the court concerned to entertain and dispose of the same on its merit after hearing all concerned.
Accordingly and in view of the above this writ petition is disposed of granting liberty to the petitioner, if so advised, to approach the court below, namely the Board of Revenue, in light of the observations made herein above.
Order Date :- 12.10.2015
Pravin
