HEMRAJ Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner Hemraj under Article 226 of the Constitution of India for issuance of an appropriate writ, direction or order, prohibiting the respondents from recovering the amount of annuity deposit in the sum of Rs. 1,885/-in relation to the assessment year 1964-65 and also for quashing any certificate issued by the Income-tax Officer in that behalf. The petition was filed on 8-1-1976. The petition came up before the then Acting Chief Justice and Hon'ble M. L. Jain J. on 27th of January 1976, on which date the Court ordered to issue notice to show cause as to why this writ petition be not admitted. On 18-8-1977 the matter again came in the Court. On that date, the learned counsel for the petitioner informed the Court that the petitioner has died and he asked for granting time to bring the legal representatives of the deceased petitioner on the record. On 3-12-1977 an application was filed by Mr. B. L. Purohit on behalf of the legal representatives. THIS application was filed under Section 151 C. P. C. In this application it was stated that the petitioner Hemraj had died on 9-8-1977 at Jodhpur and so he prayed for substituting them in the place of the petitioner. THIS application came before Hon'ble Sen J., the then Acting Chief Justice and Justice R. L. Gupta on 26th of Jan., 1978. Shri S. K. Mal Lodha learned counsel for the Tax Recovery Officer on that date raised an objection that the application for substitution of the legal representatives being barred by time, no order of substitution can be made. The case was purely on admission stage and the Court ordered the substitution of the legal representatives, subject to objection, if any, at the time of the arguments, for admission of the petition. The substitution of the legal representatives was thus provisionally allowed. The matter ultimately came up for admission on 3-4-1978 before us. On that date Mr. Lodha reiterated his preliminary objection that the application for substitution of legal representatives on record having not been made within 90 days as provided by Article 120 of the Indian Limitation Act read with Rule 4 of Order XXII C. P. C., the petition has abated.

(2.) WE have heard the learned counsel for the parties. Mr. Lodha has contended that the provisions of Order XXII, Rule 3 and Rule 4 of the C. P. C. and Article 120 of the Indian Limitation Act apply to these proceedings and application having been made more than 90 days after the death of the petitioner, the writ petition has abated. On the other hand, Mr. B. L. Purohit, learned counsel for the legal representatives, has contended that the jurisdiction, which the High Court exercises under Article 226 of the Constitution, is a special type of jurisdiction and not of ordinary type of jurisdiction exercised by a court of civil jurisdiction within the meaning of Section 141 of the C. P. C. and that consequently the provisions of Order XXII C. P. C. has no application. He further submitted that the delay in filing the application was not at all inordinate and Court should allow the substitution of the legal representative and there is no valid justification for treating the writ petition as having abated.