PANDIT KANHIYALAL Vs. MANGAL SINGH

JUDGEMENT

(1.) A revision application was filed by Kanhiyalal in Ijlas Khas, Dholpur State, against the decision of the then Dholpur High Court, dated the 14th December 1942 in its revisional jurisdiction. The High Court refused to interfere in the judgment and decree of the Civil Judge, Dholpur, by which an injunction was granted in favour of the plaintiff for removal of a latrine. After the merger of the Dholpur State into Matsya Union and after the integration of the Matsya Union in the Rajasthan State this revision application came on the file of this court by virtue of the Raj asthan Appeals and Petitions (Discontinuance) Ordinance, No. XL of 1949, as amended by Ordinance XII of 1950 ). The petitioner has now filed an application on the 19th of November 1951 stating that Mangalsingh who was the plaintiff in the suit had died on the 4th of December 1950. He has prayed that the sons of Mangal Singh may be brought on the record of this case. a rule was issued to the opposite party to show cause why the names of the heirs of Mangal Singh be not substituted in its place. An application has been moved on behalf of the heirs of Mangal Singh opposing the petition on the ground that it has been made with delay. Mr. Madan Gopal Kamthan, who has appeared on behalf of the opposite party, has contended that as Order 22, Civil Procedure Code also applies to revision applications, the petition for substitution of the names of the heirs of Mangal Singh should be deemed to be barred by limitation. He has put his reliance on the judgments of -- Anandamoyi Dasi v. Rudra Mahanti', 21 IC 407 and -- 'bhajjulal and Ors. v. Bechey Singh and Ors. ', AIR 1950 All 665. The Calcutta High Court in -- 'anandamoyi Dasi v. Rudra Mahanti', has held that Order 22 applies to cases in revision also. The Allahabad High Court on the contrary has decided in -- 'bhajjulal and Ors. v. Bechey Singh and Ors. ', that even though Order 22 is not applicable to a case in revision, yet a litigant is expected to prosecute his case with due diligence and if he does not take steps for substitution of the names of the legal representatives of a deceased party within reasonable time he should be deemed to have failed to prosecute his case with due diligence and the proceedings should be considered to have abated on this ground. The learned counsel on the opposite side has argued that Order 22, Civil P. C. has no application to cases in revision and that as there is no time fixed for the filing of such applications, it is open to a party to move the court at his convenience. He has relied on -- 'mohd. Saadat Ali Khan v. Administrator, Corporation of City of Lahore', AIR 1949 Lah 186 and -- 'manikam & Ors. v. MR. RM. Ramanathan Chettiar & Ors. ', AIR 1949 Mad 435. According to him as Order 22 has no application to such cases a revision application should not be dismissed on the ground of abatement.-- 'mohd. Saadat Ali Khan v. Administrator, Corporation of City of Lahore', (3), is a Full Bench case and in the judgment it has been observed as follows: " Order 22, Rule 3, Civil P. C. is not applicable to revisions. It cannot be read in conjunction with Section 141 as Section 141 is so drafted as to enable a court to apply the procedure in regard to suits to such prpceedings as are in 'pari materia' with suits and thus original in character. A revision is very much unlike a suit. The procedure provided for the suits would be mostly inapt and inappropriate to proceedings in revision. Further, Article 176, Limitation Act, cannot be made applicable it a revision. Hence where a party going in revision dies pending the revision petition and an application is made by his legal representatives to be brought on record after the expiry of the period of 90 days the petition for revision cannot be dismissed on the ground of abatement. "

(2.) IN -- 'manik and Ors. v. MR. RM. Ramanathan Chettiar and Ors. ', (4), the following observations have been made: " There can be no question of abatement but for the combined application of the provisions of Order 22 Rules 3 and 4 and the material articles of the Limitation Act. As neither Order 22, Civil P. C. nor the Limitation Act applies to Civil Revision petitions there can be no question of abatement of such petitions. "