Constitutional Law; 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.

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

O R D E R

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.

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