RAM KISHORE RASTOGI Vs. APPELLATE OFFICER JAISALMER HOUSE

JUDGEMENT

(1.) This is an application under Order XXII Rule 4(3) and Section 151 of the Code of Civil Procedure in which the prayer of the applicants who are respondents 3 to 5 in a petiton under Articles 226 and 227 of the Consitution (being Civil Writ Petition No. 292-D of 1960) is that the said writ petition has abated on account of the failure of the petitioner to bring on record the legal representatives of Dr. Mohammed Azim Ahmed Siddiquee who was respondent No. 2 in the petition and died at Lucknow on 7th June, 1968 leaving behind five sons, a widow and three daughters as his heirs.

(2.) The petitioner denied in his written reply all previous knowledge of the death of Dr. Siddiquee and about his having left any heirs, but submitted that the he had no objection to the alleged heirs being substituted in place of the deceased. He admitted that no application for substitution of the legal representatives was made by him within the period of ninety days. His defence however was that the provisions of Order XXII Rule 4 did not apply to petitions under Article 226 of the Constitution.

(3.) In the course of his arguments before me, Mr. D.R. Prem, learned counsel for the petitioner, did not dispute the fact that Dr. Siddiquee died on 7th June 1968. He also did not dispute that the deceased had left behind the persons named in the respondents' application as his legal heirs. His argument however was that the law of abatement did not apply to petitions under Article 226 of the Constitution. It was urged that in a petition for grant of a writ of certiorari the inferior Court or Tribunal whose order was challenged as illegal or void, was the only necessary party because certiorari goes to record and is not concerned with the parties other than the inferior Court or Tribunal. The death of a respondent who was not a necessa party had therefore no effect on the petitioner's right to continue the proceedings against the other parties who were already on record without the legal representatives of the deceased respondent being substituted in his place.