CHANDRADEO PANDEY Vs. SUKHDEO RAI

JUDGEMENT

(1.) THESE two Civil Miscellaneous Applications arise out of Civil Revision No. 1777 of 1968. They came up for disposal before a learned Single Judge of this Court. He has referred these appli cations to a larger Bench because he ielt that there was a conflict of opinion between two Division Bench decisions on the ques tion whether an application in revision would abate if no substitution application was made within ninety days of the date oi death of a deceased party. In the Union of India v. Shanti Swaroop, AIR 1966 All 530, a Division Bench took the view that since there is no period of limitation prescribed for an application for substitution in revi sion, it can be made at any time so long as the application in revision is pending. A contrary view was taken by another Division Bench of Oudh Chief Court in Khuda Bux v. Maha Nand Tewari, AIR 1948 Oudh 84. It was held that i after the admission of a revision application one of the parties dies and an application to bring his legal representatives on record is not presented within a reasonable time (which in the case of such an application is the time mentioned in Order XXII, Civil Procedure Code), the revision application will abate in the sense that the proceeding shall cease unless good cause is shown for the delay. This is how these two applica tions have come up before this Bench.

(2.) THE material facts to bring out the controversy involved in these two applica tions lie in a narrow compass. The appli cants filed a suit in the Court of Munsif, Ghazipur for the issue of a permanent in junction restraining the opposite parties from interfering with their possession over an agricultural plot. The claim was resisted by the opposite parties on grounds inter alia that the Civil Court had no jurisdiction to try the suit. The Munsif framed a prelimi nary issue on the question of jurisdiction and held that the Civil Court had no juris diction. He accordingly ordered the return of the plaint to the applicants for presen tation to the proper Court. The applicants sought to challenge that order by filing a Miscellaneous Appeal, but the appeal failed. The petitioners thereupon filed a revision before this Court which was numbered as Revision No. 1777 of 1968.

(3.) ORDER XXII, Rule 3 (1) provides lor bringing the legal representatives of de ceased plaintiff on the record when the right to sue does not survive to the surviv ing plaintiff or plaintiffs alone, and sub-rule (2) thereof provides the penalty for not bringing the heirs of the deceased plaintiff on record within the period of limitation prescribed. Order XXII, Rule 4, Civil Pro-(Contd. on Col. 2) cedure Code provides for substitution of a deceased defendant where the right to sue does not survive against the surviving de fendant or defendants alone, and sub-rule (3) thereof provides penalty for not bringing the heirs of the deceased defendant on re cord within the time prescribed by law. Ob viously Rules 3 and 4 of Order XXII, Civil Procedure Code relate to substitution of plaintiffs and defendants in a suit. But by virtue of Rule 11 of Order XXII, Rules 3 and 4 are made applicable to the appellants and respondents in appeal as well. Rule 11 reads thus:-