Narain Singh (Deceased) vs D.K. Dass And Anr.
1999 Latest Caselaw 1133 Del

JUDGMENT

Devinder Gupta, J.

1. ADMIT.

2. We have heard learned counsel for the parties and gone through the impugned order.

3. Learned Single Judge by the impugned order has dismissed an Application moved by I he appellants seeking their impleadment as petitioners in place, of the original petitioner, who was their lather, who expired on 5.4.1985. It was alleged that they were not aware of pendency of the petition and as such application could not be filed-earlier. Learned Single Judge while dismissing their applications though duly noticed the decision of Supreme Court cited at the Bar by learned counsel for the appellants in Sital Prasad Saxena (Dead) by L. Rs. v. Union of India & Others, 1985(1) SCR 660 to the effect that provisions of Limitation Act are not applicable to the proceedings under Article 226 of the Constitution of India, yet proceeded to dismiss the said application on the ground that the appellants admittedly are the sons of the deceased; they were major on the dale when the petitioner died in 1985 and had moved the same after 13 years, therefore, there was no ground to condone the delay'.

4. Admittedly procedure prescribed in the Code of Civil Procedure in regard to suits by virtue of the explanation, which was inserted by the Code of Civil Procedure (Amendment) Act, 1976, is not applicable to the proceedings under Article 226, of the Constitution of India. As such, there is no question of applicability of technical rule of abatement of a petition on the death of petitioner and as provisions of. Limitation Act are not applicable, there is also no question of applying for condensation of delay. The

object in excluding writ petitions filed under Article 226 of the Constitution of India from the preview of Section 141 of the Code in view of the explanation inserted thereto is not to encumber with formal procedure of civil suits, but to adhere to the quick and inexpensive remedy provided by the framers of the Constitution. The jurisdiction of High Court under Article 226 of the Constitution is a special and extraordinary jurisdiction and when Section 141 excludes the applicability of the Code of Civil Procedure, the proceedings under Article 226 of the Constitution would as a natural corollary result in non-application of the technical rules contained in Order 22 of the Code. As such, the reasonings of learned Single Judge while dismissing the application are not sustainable in law. In the writ petition, rule was issued on 4.12.1980. On 15.1.1981 operation of the impugned order passed by the Finance Commissioner on 16.6.1980 was stayed till decision of the writ petition. Status quo was directed to be maintained as regards possession. The writ petition thereafter remained pending and did not come up for hearing. As such, there was no question of abatement of proceedings. Before writ petition could come up for final hearing, application for substitution was made by the appellants, who claim substitution in place of the deceased, being sons and entitled to continue with the proceedings since right to sue survive to them to continue the proceedings.

5. Consequently, we allow the appeal and set aside the impugned order dated 12.4.1999. Resullantly, CM 2906/98 stands allowed. The appellants are permitted to be substituted in place of the deceased petitioner. The writ petition is ordered to be restored to its origin all number with the orders passed on 4.2.1980 in CW 1721/80 and on 15.1.1981 in CM 2694/80.

6. In view of the fact that stay is operating, let the writ petition be posted before learned Single Judge for directions to appoint a date for hearing the same expeditiously. List before learned Single Judge on 14.01.2000.