THE UNION OF INDIA, MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA Vs. SETH SHANTI SARUP AND OTHERS

JUDGEMENT

(1.) THE decree was passed jointly against the applicant-appellant (The Union of India) and the authorized controller. During the pendency of the application by the Union of India for a certificate under Art. 133 of the Constitution the authorised controller, who was an opposite party along with the plaintiff, died. This application for the substitution of his legal representatives in the application for a certificate has been made more than 150 days of his death. There is an application under S. 5 of the Limitation Act of 1908 for treating the application as within time. The learned Additional Advocate-General, however, contends that the application for substitution is not governed by O. 22 of the C.P.C. and the limitation in this case is governed not by Art. 120 but by Art. 137 of the Limitation Act of 1963. Article 120 provides a period of 90 days limitation for an application "under the Code of Civil Procedure to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent, made a party" and the period commences on "the date of death of the plaintiff, appellant, defendant or respondent as the case may be" Article 137, which is a residuary Article, provides 3 years period of limitation commencing on the date on which the right to apply accrues for "any other application for which no period of limitation is provided elsewhere in this Division".

(2.) THE first question is whether O. 22 governs an application for a certificate under Art. 133 of the Constitution. Order 22 applies in a suit and in an appeal; it is not made applicable expressly to any other proceeding such as an application for a certificate under Art. 133. By S. 141 of the C.P.C. the procedure provided in the Code in regard to suits is to be followed, "as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction". A High Court is a Court of civil jurisdiction but the question is whether when it issues a certificate under Art. 133 it acts as a Court of civil jurisdiction and an application for a certificate is a proceeding in such a Court. This Court certainly acted as a Court of civil jurisdiction when it disposed of the appeal in the suit brought against the applicant and the authorised controller. Under Art. 133 an appeal lies from the decree passed by it to the Supreme Court provided a certain certificate is granted by it. Article 133 does not lay down any procedure for obtaining a certificate referred to in it; it does not even require an application for a certificate to be made by a party to the decree wishing to appeal from it. Before issuing a certificate this Court has certainly to decide whether the facts to be certified exist or not; it can issue a certificate only if they exist and must refuse it if they do not. It may be said that deciding whether they exist or not is exercising civil jurisdiction and. therefore, the Court can be said to act in exercise of civil jurisdiction when deciding whether to giant, or not to grant, the certificate. There has to be a proceeding before it; unless there is a proceeding it cannot adjudge the claim for a certificate. Its deciding whether the facts exist or not is itself a proceeding. Therefore, when the application was made for certificate there came into existence a proceeding in a Court of civil jurisdiction and the Civil Procedure Code applies to it. But it applies as it stands; it is not to be modified or altered in any manner. It is O. 22 that applies to the proceeding, i.e., its provisions apply but they can be given effect to only if the facts of the application come within the scope of their language. It deals with the death, marriage and insolvency of a plaintiff or a defendant or an appellant or a respondent. An appeal under the Code of Civil Procedure is a proceeding in a Court of Civil jurisdiction and is governed by O. 22. But in an appeal there is no longer any plaintiff or defendant, there are instead an appellant and a respondent and that is why express provision has been made in R. 11 (of O. 22) providing that the word plaintiff includes an appellant and the word defendant, a respondent. Without that provision, though O. 22 applies in an appeal, its provisions could not be given effect to because they refer to plaintiffs and defendants and not to appellants and respondents. Similarly, without a provision that "plaintiff" includes an applicant and "defendant", an opposite party, even though O. 22 may apply to an application for a certificate it is not possible to give effect to its provisions because in such a proceeding there are only an applicant and an opposite party and not a plaintiff and a defendant. Without the required authority one cannot give effect to the provisions of the Order as if "plaintiff" included "applicant" and "defendant", "opposite party". In such a proceeding the Court is concerned with the death of an applicant or an opposite party and O. 22 does not deal with the death of an applicant or an opposite party; so even if it applies, the facts do not come within the scope of its provisions and they cannot be given effect to.

(3.) THERE is no other law dealing with death of a party which might apply to the death of a party to an application for a certificate. The Rules of Court do not contain any rule regarding death of a party to an application for a certificate. Rule 19 of Chap. XXIII of Rules of Court lays down that substitution of legal representatives in case of death is governed by Rr. 12 and 13 of O. XVI of Supreme Court Rules, but Rr. 12 and 13 of O. XVI of Supreme Court Rules deal with death of a party after a certificate has been granted. The Supreme Court Rules do not deal with the procedure to be followed before a certificate is granted. The result is that there is no rule which requires an application to be made for substitution of the legal representatives of a deceased party in an application for a certificate.