NARENDRA KUMAR Vs. SURENDRA KUMAR JAIN

JUDGEMENT

(1.) THESE two applications can be disposed of together for they relate to the same controversy. Plaintiff -applicant No. 3(Sri. Parmanand died on May 30, 1979. An application to bring on record his heirs and legal representatives was made on August 11, 1981 on which date notice was directed to issue to the opposite parties. The opposite parties had, in the meanwhile, made an application on September 30, 1981 saying that no application having been made for bringing on record the heirs of deceased Parmanand, the revision should be abated and disposed of with an order to that effect.

(2.) SRI . R.K. Jain who appears for the opposite parties, has urged that the revision being one Under Section 25 of the Provincial Small Cause Courts Act, an application to bring on record the heirs of deceased Parmanand should have been made within 90 days of the death of Parmanand in accordance with the provisions of Order XXII Code of Civil Procedure which will apply to the proceedings Under Section 25 on account of Section 17 of the Provincial Small Cause Courts Act. It was urged that, inasmuch as, Section 17 made the provisions of Code of Civil Procedure applicable to suits before a Court of Small Causes as well as to "all proceedings arising out of such suits," the reference to the applicability of Rules 3 and 4 of Order XXII Code of Civil Procedure to appeals in Rule 11 of that order should be read as including their application to a revision Under Section 25 of the Provincial Small Cause Courts Act for there is no provision for an appeal against a decree passed in a suit under that Act. He has also urged that Order 50 Code of Civil Procedure expressly excludes some parts of the Schedule from their applicability to proceedings under the Provincial Small Cause Courts Act but it does not exclude Order 22 Code of Civil Procedure This, according to Sri. Jain, was another indication of the fact that reference to an appeal in Rule 11 of Order 22 Code of Civil Procedure was to be so read as to include a revision Under Section 25 of the Small Cause Courts Act therein.

(3.) THE submission made by Sri. R.K. Agrawal, who has appeared in support of the plea for permission to substitute the legal heirs of late Parmanand, is that on the analogy of the reasoning which commended itself to a Full Bench of this Court in Chandradeo Pandey v. Sukhdeo Rai, 1972 AWR 533 the period of limitation for applying for substituting the heirs of the deceased party in a revision Under Section 25 of the Provincial Small Cause Courts Act should also be held to be three years under the residuary provision of Article 137 of the Schedule to the Limitation Act, 1963. In that case, the Full Bench, speaking through R.B. Misra, J. ruled that the provisions of Rules 3 and 4 of Order 22 Code of Civil Procedure not being applicable to applications in revision Under Section 115 Code of Civil Procedure there was no question of abatement of the proceedings in the event of the failure to substitute the heirs of a deceased party and further that the period of three years provided for under the residuary Article 137 should be treated to be a reasonable period of time for bringing on record the heirs of the deceased party. Though, the judgment of the Full Bench was rendered in respect of the question of limitation for bringing on record the heirs of the deceased party in a civil revision Under Section 115 Code of Civil Procedure, I see on principles, no difference between a case in which the revisional jurisdiction is exercised Under Section 25 of the Provincial Small Cause Courts Act and that in which it is invoked Under Section 115 Code of Civil Procedure. The basic principle laid down by the Full Bench is that where the provisions of Rules 3 and 4 of Order 22 Code of Civil Procedure are not applicable, it is reasonable to hold that substitution may be sought within a period of three years Under Article 137 of the Schedule to Limitation Act, 1963. This principle is a salutary one and there is no reason why it should not be held applicable to proceedings Under Section 25 of the Provincial Small Cause Courts Act.