SHANKER DE BHATTACHARYYA Vs. JYOTIVMOYEE DEVI

JUDGEMENT

(1.) The matter arises out of an application filed on behalf of the plaintiff/petitioner for substitution of the heirs of the deceased OP Nos. 1 and 2 after setting aside abatement on condonation of delay. Though not specifically mentioned in the cause title the instant application is to be treated as an application under Order 22, Rule 9 C.P.C. read with Section 5 of the Limitation Act. It is alleged that during the pendency of this revisional application the OP/defendant No. 1 died intestate on 8/07/1994 leaving behind her daughters OP No. 1(a) and 1(b) as her heirs and legal representatives and that the OP/defendant No. 2 also died intestate on 7-11-1995 leaving the OPs 2 (a) to 2(c) as his legal heirs and representatives. All the proposed heirs are stated to be major, sui juris and suffering from no legal disability. The petitioner's case is that although prayer for substitution of the heirs of the aforesaid deceased defendant/OP Nos. 1 and 2 was made in the Trial Court in connection with the Title Suit No. 15 of 1991, he had no idea or legal knowledge that he had to take steps for substitution in the instant revisional application also. It is the further case of the petitioner that as his youngest brother was suffering from paralysis from 19/08/199 4/11/1995 he could not take appropriate steps for substitution in connection with the present matter till he contacted his lawyer in High Court on 24-1-1996. On being advised by his lawyer he filed the instant application on 29-1-1996 and filed the same in the Court of N. K. Bhattacharjee, J. on 1-2-1996. The application has been seriously contested on behalf of the heirs of the deceased OP Nos. 1 and 2 who have filed affidavit-in-opposition separately. The petitioner has filed supplimentary affidavit and affidavit-in-reply. At the time of hearing it has been, however, contended by Mr. Bhattacharjee the learned Counsel for the petitioner that the provisions of Order 22 and Rules thereunder regarding substitution are not applicable to a civil revisional application under Section 115, C.P.C. by virtue of Section 141, C.P.C. Mr. Bhattacharjee has further contended that even if it is held that the provisions of Order 22 and the Rules thereunder are applicable to a revisional application the period of limitation for substitution or for setting aside abatement will not be governed by Articles 120 and 121 of the Indian Limitation Act but, will be governed by the provisions of residuary Article 137 of the Limitation Act.

(2.) Mr. Bhattacharjee in support of his contention that provision of Order 22 of the Civil Procedure Code are not applicable to a revisional application under Section 115 of the Civil Procedure Code as referred to a Single Bench decision of this High Court reported in 1976 (1) CLJ 492 Md. Israil, petitioner v. S. M. Amirul Islam, Opposite Parties. The relevant part of the above reported case may be quoted below :-

(3.) Mr. Banerjee the learned Counsel appearing for the OP 1 (a) and 1 (b) has argued a lot to bring home his point that provisions of Order 22, C.P.C. are applicable to a revisional application in terms of Section 141 read with Section 117 of the Civil Procedure Code and in support of his contention he has referred to a decision of the Rajasthan High Court reported in AIR 1973 Raj 219, Mahendra Singh v. Sohan Baj and also to a decision of the Supreme Court reported in AIR 1964 SC 497 : (1963 All LJ 1068), Major S. S. Khanna v. Brig. F.J. Dillon but in my opinion, this aspect of the matter does not require further elaboration in view of the position of law as settled in the Bench case reported in AIR 1977 Cal 241 which I have already discussed. Under the circumstances I must hold that the provisions of Order 22 are applicable to a revisional application under Section 115 of the Civil Procedure Code.