Article 227; Syed Mohammad Abbas Vs. Bibi Sajda Khatoon [Patna High Court, 22-07-2016]

Constitution of India – Article 227 – Proper identification of petition – Whether procedures prescribed under Code of Civil Procedure would apply to the petition under Article 227 of the Constitution of India, whenever matter is against the order passed by Civil Court? – Whether Article 120, 121 of the Limitation will be applicable while considering substitution relating to petition under Article 227 of the Constitution? – question referred to the Division Bench.

# Article 227 of the Constitution


IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI

22-07-2016

Civil Writ Jurisdiction Case No.12179 of 2012

1. Syed Mohammad Abbas S/O Syed Aley Imam Resident Of Village Rampur Bariya Tola Allehpur, P.O. Rampur Bariya, P.S. Kesarya, District East Champran.

2. Aklima Khatoon W/O Md. Sattar D/O Late Syed Aley Imam Resident Of Village Rampur Bariya Tola Allehpur, P.O. Rampur Bariya, P.S. Kesarya, District East Champran.

3. Motahra Khatoon W/O Late Syed Md. Taiyab Resident Of Village Rampur Bariya Tola Allehpur, P.O. Rampur Bariya, P.S. Kesarya, District East Champran.

…. …. Petitioner/s Versus

1. Bibi Sajda Khatoon W/O Late Syed Abdul Majeed & D/O Late Syed Aley Imam Resident Of Village Darwa, P.S. Harsiddhi, P.O. Harsiddhi, District East Champaran.

Appearance : For the Petitioner/s : Mr. Raghwanand, Advocate For the Respondent/s : Mr. Waliur Rahman, Amicus Curiae

ORDER

A poignant question arose during course of hearing over I.A. No.9101/2014 relating to applicability of Article 120, 121 of the Limitation Act, while considering prayer of substitution concerning a petition preferred under Article 227 of the Constitution.

2. I.A. No. 9101/2014 has been filed on 09.12.2014 on account of death of petitioner no.1, Syed Mohammad Abbas on 06.03.2014 as well as death of petitioner no.2, Aklima Khatoon on 05.07.2014(wrongly mentioned as 05.07.2013) leaving behind the petitioners, Ejaz Ahmad, Imteyaz Ahmad, sons of petitioner no.1, as only legal heirs.

3. It has been submitted on behalf of the petitioner that a petition under Article 227 of the Constitution of India is a “writ petition” wherein no limitation is found prescribed for the purpose of substitution and in likewise manner, it has also been submitted that no question of abatement does survive. Further, elaborating his submission, the learned counsel for the petitioner submitted that writ is a constitutional power inherently possesses by the High Court for efficacious remedy. That happens to be the reason behind that no procedure has been prescribed for entertaining a writ. The High Court on its own or in an alternative, on the prayer made by an individual could exercise the power of superintendence in order to adjudicate upon the propriety of the order passed by the Civil Courts. If such inherent power is allowed to be circumvented by the law of procedure, then in that event, its purpose will be frustrated.

4. It has also been submitted that the aforesaid theme has elaborately been considered in AIR 1996 SC 1092 wherein it has been held that no such provision could be allowed to intervene during exercise of writ jurisdiction, however, a rule of caution has been given that it should not be kept pending for infinite period.

For that purpose, it has been held that Court could stick to the time so prescribed for the purpose of substitution in terms of Order 22 CPC read with Article 120 of the Limitation Act, but during consideration, delay if any, should not be viewed adverse in terms thereof. However, with regard to abatement it has been completely ruled out. Learned counsel for the petitioner also referred 1978 PLJR 659 wherein while dealing with revisional power, the period of Limitation for substitution has completely been brushed aside.

Consequent thereupon, it has been submitted that I.A. No.9101/2014 be allowed.

5. The importance of Article 227 of the Constitution of India now-a-days has been highlighted on account of some sort of stringent clause having been inserted in Section 115 of the CPC barricading the power of revision. Though usually, when there happens to be a petition under the heading of writ, it connotes in casual way Article 226 as well as 227 of the Constitution of India.

However, the Hon’ble Apex Court had distinguished that Article 226 was not at all available whenever there happens to be order of the Civil Courts under challenge and so, it has been segregated and then, Article 227 of the Constitution of India has alone been found enforceable, as remedial provision. Apart from this, the Hon’ble Apex Court had an occasion to perceive ambit and scope of Article 226 as well as article 227 of the Constitution of India, and held that both two are independent to each other, commanding two distinct sphare.

6. In

# Shalini Shyam Shetty v. Rajendra Shankar Patil as reported in (2010)8 SCC 329

wherein distinction in between Article 226 and 227 of the constitution has been laid down after considering previous judicial pronouncements and further observed as follows:-

49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court’s jurisdiction under Article 227of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article

227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority’.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court’s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of

# L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261

and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court’s power under Article

227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court’s jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.

66. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court’s power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

67. As a result of frequent interference by Hon’ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either underArticle 226 or 227, Hon’ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly.

7. Again in Radhey Shyam v. Chhabi Nath with

# Jagdish Prasad v. Iqbal Kaur as reported in AIR 2015 SC 3269

the aforesaid issue has been subject to reconsideration before three judges Bench and after thoroughly examining all the previous judicial pronouncements, it has been concluded under para-25

25. Accordingly, we answer the question referred as follows :

“(i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution;

(ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226.

Contrary view in Surya Dev Rai is overruled.”

8. The aforesaid view has again been reiterated in

# Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat as reported in AIR 2015 SC 3623

wherein it has been held:-

16. The aforesaid authoritative pronouncement makes it clear as day that an order passed by a civil court can only be assailed under Article 227 of the Constitution of India and the parameters of challenge have been clearly laid down by this Court in series of decisions which have been referred to by a three- Judge Bench in Radhey Shyam (supra), which is a binding precedent. Needless to emphasise that once it is exclusively assailable under Article 227 of the Constitution of India, no intra-court appeal is maintainable.

25. From the aforesaid pronouncements, it is graphically clear that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. Barring the civil court, from which order as held by the three- Judge Bench in Radhey Shyam (supra) that a writ petition can lie only under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both. The Division Bench would also be required to scrutinize whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated, one of the conclusions recorded by the High Court in the impugned judgment pertains to demand and payment of court fees. We do not intend to comment on the same as that would depend upon the rules framed by the High Court.

36. In view of the aforesaid analysis, we proceed to summarise our conclusions as follows:-

(A) Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The Court fee payable on a petition to make it underArticle 226 or Article 227 or both, would depend upon the rules framed by the High Court.

(B) The order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable.

(C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party.

(D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal.

9. Thus, from the aforesaid the analogy, it is evident that there happens to be distinct parameters prescribed for Article 226 and 227 of the Constitution of India whereupon both the two have got different identity commanding distinct sphere and in likewise manner, though usually taken up but are independent to each other in majority of the event. However, it is made clear whenever an order passed by the civil court is brought under challenge, it is article 227 of the Constitution which comes into play.

10. Proceeding ahead, when the power of superintendence in terms of Article 227 of the Constitution of India is taken up, it is apparent that the Court on its own, that means to say, could exercise its power suo motu as well as could also entertain a petition on that very score at the end of an aggrieved. The same has properly been dealt with in the case of

# Jasbir Singh v. State of Punjab as reported in (2006) 8 SCC 294

10. The power of superintendence over all the subordinate courts and tribunals is given to the High Court under Article 227 of the Constitution. So also, under Article 235 of the Constitution, the High Courts exercise control over all the district courts and courts subordinate thereto on all matters relating to posting, promotion and grant of leave to officers belonging to the judicial service of the State. The power of superintendence conferred on the High Court under Article 227over all the courts and tribunals throughout the territory of the State is both of administrative and judicial nature and it could be exercised suo motu also. However, such power of superintendence does not imply that the High Courts can influence the subordinate judiciary to pass any order or judgment in a particular manner. The extraordinary power under Article 227can only be used by the High Courts to ensure that the subordinate courts function within the limits of their authority. The High Court cannot interfere with the judicial functions of asubordinate Judge. Speaking on the power of superintendence of the High Court under Article 227 in

# Waryam Singh vs. Amarnath, AIR 1954 SC 215

at page 217, Justice S.R. Das observed :-

“The material part of Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by the Article also to Tribunals…. Further, the preponderance of judicial opinion in India was thatSection 107 which was similar in terms to Section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. In this connection it has to be remembered that Section 107 of the Government of India Act, 1915 was reproduced in the Government of India Act, 1935 as Section 224. Section 224 of the 1935 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior court which was not otherwise subject to appeal or revision. The idea presumably was to nullify the effect of the decisions of the different High Courts referred to above. Section 224 of the 1935 Act has been reproduced with certain modifications in Article 227 of the Constitution. It is significant to note that sub-section (2) to Section 224 of the 1935 Act has been omitted from Article 227. This significant omission has been regarded by all High Courts in India before whom this question has arisen as having restored to the High Court the power of judicial superintendence it had underSection 15 of the High Courts Act, 1861 and Section 107 of the Government of India Act, 1915….

This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in

# Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, AIR 1951 Cal 193 (SB)

to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors”.

11. This view expressed was later followed by this Court in

# Trimbak Gangadhar Telang v.. Ramchandra Ganesh Bhide, AIR 1977 SC 1222

by Justice Jaswant Singh, at page 1225 :-

“It is also well established that it is only when an order of the Tribunal is violative of the fundamental basic principles of justice and fair play or a patent or flagrant error in the procedure of law has crept or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution.”

12. In

# Mohd. Yunus Vs. Mohd. Mustaqim AIR 1984 SC 38

this Court held :-

“7. The supervisory jurisdiction conferred on the High Court’s under Article 227 of the Constitution is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority,” and not to correct an error apparent on the face of the record, much less an error of law…. In exercising its supervisory powers under Article 227, the High Court does not act as an appellate court or Tribunal. It will not review or reweigh the evidence upon which the inferior court or tribunal purports to be based or to correct any errors of law in the decision.”

13. This Court also made almost similar observations in

# State v. Navjot Sandhu (2003) 6 SCC 641

14. So, even while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions. It is the members of the subordinate judiciary who directly interact with the parties in the course of proceedings of the case and therefore, it is no less important that their independence should be protected effectively to the satisfaction of the litigants. The independence of the judiciary has been considered as a part of the basic structure of the Constitution and such independence is postulated not only from the Executive, but also from all other sources of pressure. In

# S.P. Gupta v. Union of India 1981 (Supp.) SCC 87

speaking on the independence of the judiciary, a Bench of seven Judges observed as under at page 223: (SCC para 27) :-

“The concept of independence of judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity…. But it is necessary to remind ourselves that the concept of independence of judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely, fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong.”

That means to say, while exercising power under Article 227 of the constitution, the High Court is to direct the subordinate courts to act within bounds of procedural law. That being so, when a direction is needed at the end of High Court, when approached by a party, then in that event, whether High Court itself deflects from adopting procedural law, is the moot question which needs proper appreciation.

11. Before coming to embark upon the submissions made on behalf of petitioner, it looks necessary to refer the definition of plaintiff, appellant, petitioner and applicant. In Code of Civil Procedure, Section 2 contains definition wherein none of these have been defined and explained.Under Limitation Act, as is evident, Section 2 deals with the relevant definitions in the following way:-

2. In this Act, unless the context otherwise requires,-

(a) “applicant” includes–

(i) a petitioner;

(ii) any person from or through whom an applicant derives his right to apply;

(iii) any person whose estate is represented by the applicant as executor, administrator or other representative;

(b) “application” includes a petition;

(c) ……….

(d) “………

(e) “defendant” includes–

(i) any person from or through whom a defendant derives his liability to be sued;

(ii) any person whose estate is represented by the defendant as executor, administrator or other representative;

(f) ………

(i) “plaintiff” includes–

(i) any person from or through whom a plaintiff derives his right to sue

(ii) any person whose estate is represented by the plaintiff as executor, administrator or other representative;

(l) “suit” does not include an appeal or an application;

12. Now Article 120 of Limitation Act is to be taken up which is as follows:-

120. Under the Ninety days. The date of death code of Civil of the plaintiff, Procedure, 1908, appellant, to have the legal defendant or representative of a respondent as the deceased plaintiff case may be. or appellant or of a deceased defendant or respondent, made a party.

13. In likewise manner, Article 121 of the Act is to be incorporated which reads as follows:-

121. Under the Sixty days The date of same Code for an abatement. order to set aside an abatement.

14. At the present juncture, Section 3 of the Limitation Act is also to be taken note of, which reads as follows:-

# LIMITATION OF SUITS, APPEALS AND APPLICATION

3. (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

(2) For the purposes of this Act,–

(a) a suit is instituted,–

(i) in an ordinary case, when the plaint is presented to the proper officer;

(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and

(iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator;

(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted–

(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;

(ii) in the case of a counter claim, on the date on which the counter claim is made in Court;

(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court.

15. After having comparative study of definition as provided under section 2 inconsonance with Article 120 of the Act, it is evident that in Section 2 there happens to be non presence of appellant/respondent. Furthermore, Article 120 or 121 did not deal with petitioner or O.P. In likewise manner it also did not say regarding presence of applicant.

16. In its continuity, it has also to be seen whether any kind of nomenclature has been prescribed to particular nature of litigation. As stated above, CPC has not defined, though presence of plaintiff, defendant, appellant/respondent are there at relevant places. In likewise manner,General Clauses Act is also silent on that very score. The High Court Rules governing the procedure of civil court as well as High Court on its own, did not properly identify the same. Therefore, nature of petition is not to be identified in accordance with the nomenclature of the party.

17. At the present juncture, Section 141 of the CPC is also to be taken note of which reads as follows:-

141. Miscellaneous proceedings.– 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.

[Explanation.– In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.]

18. That means to say, the procedure so prescribed under CPC is not at all found applicable with regard to writ petition under the banner of Article 226 of the Constitution of India. Legislature was very much conscious with regard to applicability of procedure prescribed under CPC relating to proceeding in any subordinate court of civil jurisdiction and as it is evident, scope of Article 227 of the Constitution has been confined relating to proceeding of the subordinate court coming out of civil/criminal jurisdiction, hence, procedure of CPC has not been made inapplicable relating to the petition filed under Article 227 of the constitution. Had there been apart fromArticle 226 of the Constitution, it should also have Article 227 along with Article 226 of the Constitution.

19. In

# United India Insurance Company Limited v. Orient Treasures (P) Ltd reported in (2016) 3 SCC 49

it has been held as follows:-

” 39. It is a settled rule of interpretation that when the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences. In other words, when a language is plain and unambiguous and admits of only one meaning, no question of construction of a statue arises, for the Act speaks for itself. Equally well-settled rule of interpretation is that whenever the NOTE is appended to the main Section, it is explanatory in nature to the main Section and explains the true meaning of the main Section and has to be read in the context of main Section (See – G.P.Singh -Principle of Statutory Interpretation 13th Edition page 50 and 172). This analogy, in our considered opinion, equally applies while interpreting the words used in any contract.”

20. Therefore, it is found that exclusion of Article 226 in terms of Section 141 of the CPC makes the petition purported to be under Article 226 of the Constitution immune from performance of obligation as prescribed under CPC, while all other kinds of proceeding is to be proceeded in terms thereof, unless and until having their own procedure ousting the jurisdiction of Civil Court in terms of Section 4 of the CPC. As, Article 227 of the Constitution is confined only with regard to proceeding relating to Civil Court or Tribunal, and further, the Court exercising such jurisdiction is to see propriety of the order, having within the ambit of law, thus, applicability of CPC is found applicable whenever it relates with an order passed by the Civil Court. Because of the fact that Article 120 as well as 121 of the Limitation Act is applicable to civil proceeding consequent thereupon, it should also be found applicable to the application filed under Article 227 of the Constitution.

21. Learned counsel for the petitioner has referred AIR 1996 SC 1092 in order to substantiate his plea that like Article 226, Article 227 of the Constitution has also been excluded from aforesaid procedural obligation and so, application of Article 120, 121 of the Limitation Act should not be made applicable. After going through the facts of the case, it is evident that a petition was filed under Article 226 of the Constitution of India whereunder question of substitution arose and while dealing with the same, though the matter in controversy was not relating to Article 227 of the Constitution but the same has also been inumbrate over Article 227 of the Constitution. However, while considering the question of substitution, it has been held that ambit and scope ofArticle 226, 227 of the Constitution could not be barricaded by a procedure, however, the Court has to formulate it own procedure and to facilitate the same, the Court can take recourse of Order XXII of the CPC. For better appreciation para-10 thereof is quoted hereinbelow:-

10. 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 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 heris 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 prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent. However, there is no question 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 purpose of condoning the delay in filing the application for substitution of the legal representative. This power has to be exercised as 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 substitute the legal representative and proceed with the hearing of the writ petition or the writ appeals, as the case may be. 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 the petitioner or the appellant has become final.

22. However, while observing so, neither there was argument before the Hon’ble Court regarding distinct character of Article 226 as well as Article 227 of the Constitution, nor the Apex Court had occasion to scrutinize the relevant judicial pronouncement on that score.

23. Learned counsel for the petitioner also referred 1978 PLJR 659 wherein the question of substitution relating to Civil Revision was involved. During consideration of prayer mainly, nomenclature of party arrayed at the time of filing of petition was specifically considered and in the aforesaid background, it has been observed that as there happens to be absence of aforesaid heading under Article 120 of the Limitation Act, therefore, is found non applicable.

24. The High Court Rules, though, by a recent amendment has identified both two petitions under Article 226 as well as Article 227 of the Constitution separable to each other and further, distinguishable to each other and for that, a petition under Article 227 of the Constitution has been identified as Civil Miscellaneous petition and not as a writ commonly used conjointly along with Article 226 of the Constitution.

25. Apart from this, it has also to be taken note of that against an order passed under Article 226of the Constitution, Letters Patent Appeal is permissible while order under Article 227 of the Constitution goes out of purview of Letters Patent Appeal.

26. In

# Andhara Pradesh v. Pratap Karan as reported in (2016) 2 SCC 82

It has been held as follows:-

39. A five Judges Constitution Bench of this Court in the case of

# Sardar Amarjit Singh Kalra vs. Pramod Gupta, AIR 2003 SC 2588

was considering the question as to the effect of death of some of the appellants during the pendency of appeal. In that case, during the pendency of appeal, some of the appellants died on different dates and there was no attempt to take any step within time for bringing to the Court the legal representatives of the deceased appellants. The respondents, therefore, filed application praying for dismissal of those appeals as having been abated. It appears that during the pendency of appeal in the High Court, some of the appellants were said to have died, the plea of partial abatement of the appeals qua only those deceased appellants were not accepted by the High Court on the view that decree was joint based on common right and interest, the appeal was rejected in toto. On these facts, the Constitution Bench after discussing all earlier decisions held as under:-

“26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice.”

* * *

31. But, in our view also, as to what those circumstances are to be, cannot be exhaustively enumerated and no hard-and-fast rule for invariable application can be devised. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. Consequently, having regard to the nature of the proceedings under the Act and the purpose of reference proceedings and the appeal therefrom, the courts should adopt a liberal approach in the matter of condonation of the delay as well as the considerations which should weigh in adjudging the nature of the decree i.e. whether it is joint and inseverable or joint and severable or separable. The fact that the Reference Court has chosen to pass a decree jointly in the matters before us is and should be no ground by itself to construe the decree to be joint and inseparable. At times, as in the cases on hand, the court for its convenience might have combined the claims for joint consideration on account of similar nature of the issues in all such cases and for that reason the parties should not be penalized, for no fault of theirs. Actus curiae neminem gravabit (an act of court shall prejudice no one) is the maxim of law, which comes into play in such situations. A number of people, more for the sake of convenience, may be counselled to join together to ventilate, all their separate but similar nature of claims and this also should not result in the claims of all such others being rejected merely because one or the other of such claims by one or more of the parties abated on account of death and consequent omission to bring on record the legal heirs of the deceased party. At times, one or the other parties on either side in a litigation involving several claims or more than one, pertaining to their individual rights may settle among themselves the dispute to the extent their share or proportion of rights is concerned and may drop out of contest, bringing even the proceedings to a conclusion so far as they are concerned.

If all such moves are allowed to boomerang adversely on the rights of the remaining parties even to contest and have their claims adjudicated on merits, it would be a travesty of administration of justice itself.

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27. Even as held above procedural law should not be allowed to interfere while dispensing with justice. However, the issue under controversy is not whether its application should be waived, rather whether it applies or not. Once found, then may be waived in individual facts and circumstances of the case, more particularly, when the matter is taken up suo motu. No prayer has been made on behalf of petitioner to condone the delay. At the other end, as enumerated in foregoing paragraph, it happens to be consistent plea that Article 120, 121 of the Limitation Act is not applicable which governs the event of substitution in terms of Order 22 of the CPC, and further having the issue untouched uptil now, as no specific judicial pronouncement of this High Court has been traced, and further, taking into account the case law referred by the learned counsel for the petitioner referred in 1978 PLJR 659 (D.B) as well as considering the nature of controversy to be of great importance, needs authoritative decision and for that the matter in hand is being referred to the Division Bench and for that following questionnaires are formulated:-

A. Proper identification of petition under Article 227 of the Constitution of India.

B. Whether procedures prescribed under Code of Civil Procedure would apply to the petition under Article 227 of the Constitution of India, whenever matter is against the order passed by Civil Court?

C. Whether Article 120, 121 of the Limitation will be applicable while considering substitution relating to petition under Article 227 of the Constitution?

28. Accordingly, office is directed to place the records before Hon’ble the Chief Justice for proper adjudication of the issue by constituting Division Bench.

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