BIJENDER SINGH Vs. SMT. PHOOL KAUR

JUDGEMENT

(1.) Vide these applications a prayer has been made for impleading the legal representatives of deceased Appellant Bijender Singh after condoning the delay of 130 days in filing the application. Notice of these applications was given. Reply has been filed on behalf of the Respondent wherein it has been stated that there is no reason to condone the delay in filing the application for bring on record the legal representatives of the Appellant and the same are liable to be dismissed.

(2.) Shri Arun Jain, learned Senior counsel, has argued that there was no necessity of filing this application for condonation of delay in view of the notification dated 21.2.1992 of this Court whereby Sub-rule (2) of Rule (3) of Order 22 of Code of Civil Procedure has been substituted by way of local amendment as applicable to States of Punjab, Haryana and Chandigarh, to the effect that in case the legal representatives of the Appellant are not brought on record within the stipulated period of limitation the appeal shall not abate for the said reason. It has been further argued by the learned Counsel for the Appellant that the aforesaid local amendment has not been affected in any way as no change has been effected in the provisions of Order 22 of the Code of Civil Procedure by Amending Act 22 of 2002 and, therefore, Section 16 of the Amending Act, 2002, will not be applicable with respect to the rule as inserted by local amendment of this Court. The learned Counsel has also brought to the notice of the Court a full Bench decision of this Court in the case of wherein it was held that Sub-rule (3) to Rule (4) of Order 22 of the Code substituted by this Court on March 25, 1975, is not inconsistent with the provisions of the Code as amended by the Amendment Act of 1976 and the said rule does not stand repealed. Mr. Jain has further argued that in any case by virtue of the provisions of Order 22 Rule 9 of the Code of Civil Procedure, Section 5 of the Limitation Act is applicable and the delay in making the application is liable to be condoned.

(3.) On the other hand learned Counsel for the Respondent has argued that in view of Section 157 of the Code of Civil Procedure any local amendment which is inconsistent with the principal Code stood repealed. Since the Local Amendment inserted by way of notification is not consistent with the provision of Order 22 Rule 3(1) which provides limitation for making an application to bring on record the legal representatives of deceased Plaintiff the same stands repealed. Learned Counsel for the Respondent has also relied upon a judgment of the Hon'ble Supreme Court of India in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by L.RS, 2001 AIR(SC) 1273 wherein, while interpreting the scope of Section 41 of the Punjab Courts Act and Section 100 of the Code of Civil Procedure, after 1976 amendment, it has been authoritatively laid down that any local law which is inconsistent with the Code shall stand superseded. In support of his contention, learned Counsel has referred to para 21 of the aforesaid judgment, which reads as under: