JOWALA SINGH PREM SINGH Vs. MALKAN NASIRPUR

JUDGEMENT

(1.) THIS civil revision presented by the defendants-petitioners arises out of the following facts:

(2.) THE plaintiffs, who are the proprietors in village Nasirpur, instituted a suit on 22-2-1951, for a declaration that the defendants, who are their occupancy tenants, should not be declared owners of the land in view of the provisions of the pepsu Abolition of Occupancy Tenures and Settlement of Land Disputes Ordinance, 2006 Bk. , and for injunction that the plaintiffs should not be prohibited from enjoying their right of easement on the land. This suit was dismissed by the Subordinate Judge. Sultanpur, on 27-11-1951, on the ground that the civil Courts had no jurisdiction. The plaintiffs then presented an appeal to the Dis trict Judge, Kapurthala, who agreed with the findings of the trial Court and dismissed the appeal. a revision petition was then presented to the pepsu High Court, which on the merger of Pepsu and Punjab was disposed of by this Court on 15-2-1957. It was held that the civil Courts had Jurisdiction, the revision was accepted and the case remanded to the trial Court for disposal according to law. Isher Singh, one of the defendants. had died in 1955 but this fact was not brought to the notice of this court when the revision petition was argued. On remand, it was contended before the trial Court that there had been an abatement of the revision petition, as the limitation had long expired, and the deceased having died almost two years ago. On the other side, it was argued that there could be no abatement of a revision, as order 22, Civil Procedure Code, did not apply to revisions and Rule 11 of Order 22 extended its applicability to appeals only. The trial Court followed Mohd. Saddat All khan v. Administrator, Corporation of City of Lahore, AIR 1949 Lah 186 (FB) (A); and Maniebam v. Ramanathan Chettiar, AIR 1949 Mad 435 (B), upholding the view, that there is no question of abatement in case of a revision. The trial Court was also of the view that the application for setting aside abatement lies only in the Court in which, the proceedings were pending at the time the abatement took place, and this should have been done in the High Court during the pendency of the revision and not in the trial Court. He has also held that, in fact, there was no question of abatement. He allowed Amur Singh, son of deceased Ishar Singh, to be added a defendant as representing his deceased father. He then proceeded to frame the issues; and evidence in this case has not been recorded so far. Against the above order, the defendants have submitted this petition of revision.

(3.) S. Kuldip Singh, the learned counsel for the petitioners, maintains that the provisions of Order 22, Civil Procedure Code, apply to revisions as well as to appeals. He has drawn my attention to Ajudhia Pershad v. Sham Sunder. AIR 1947 Lah 13 (FB) (C ). In that case, Cornelius J. , was of the view that the principle of abatement was applicable not only to suits and appeals but also to proceedings in revision. Din Mohammad J. , thought that this question was debatable and he declined to express any opinion, especially as it was not necessary for it,s disposal. The third jowala Singh Prem Singh and Ors. vs. Malkan Nasirpur and Ors. (25. 11. 1957 - PHHC) Page 3 of 4 gh Prem Singh and Ors. vs. Malkan Nasirpur and Ors. (25. 11. 1957 - PHHC) Page 3 of 4 judge, Ram Lall J. , agreed with Din Mohammad J. This authority is, therefore, of no assistance to the petitioner. Moreover, in AIR 1949 Lah 186 (FB) (A), a view contrary to that upheld by Cornelius J. , in Ajudhia Pershad's case. AIR 1947 Lah 13 (FB) (C), was expressed by the Full Bench. It was held that Order 22, Rule 3 of the Code of Civil Procedure was not applicable to revisions find those provisions could not be read in conjunction with Section 141, Civil Procedure Code, because Section 141 was so drafted as to enable a court to apply to the procedure in regard to suits to such proceedings as were in pari materia with suits, and thus original in character. It was held that a revision was very much unlike a suit. It was also observed that Article 176, Limitation Act, could not be stretched in order to apply to a revision. Therefore, where death took place of a party pending the revision petition, and no application was made by the legal representatives of the deceased, to be brought on record, after the expiry of the period of ninety days, the petition for revision could not be dis missed on the ground of abatement. The case law was reviewed and Cornelius J. , who was also a member of the Full bench, agreed with Abdur Rahman, Acting C. J.