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Union Of India, Mini... v. Rai Sahab Seth Shant...
Structured Summary of the Opinion (Desai, C.J.)
Factual and Procedural Background
The decree in a suit or appeal was entered jointly against the applicant-appellant (the Union of India) and an authorised controller. While the Union of India’s application for a certificate under Article 133 of the Constitution was pending, the authorised controller (an opposite party) died. An application for substitution of the deceased opposite party’s legal representatives was filed more than 150 days after his death. An application was also made under Section 5 of the Limitation Act, 1908, seeking to treat the substitution application as within time. The learned Additional Advocate-General contended that Order 22 of the Code of Civil Procedure did not govern substitution in this context and that limitation should be determined under Article 137 of the Limitation Act (1963), whereas Article 120 prescribes a 90-day period for substitution under the Code.
Legal Issues Presented
- Whether an application for a certificate under Article 133 of the Constitution is a "proceeding in a Court of civil jurisdiction" to which the Code of Civil Procedure (and specifically Order 22) applies for the purpose of substitution of legal representatives.
- If Order 22 does not govern substitution in an application for a certificate under Article 133, which provision of the Limitation Act (Article 120, Article 137, or some other provision) prescribes the period of limitation for an application to substitute legal representatives?
- Whether an application for substitution of legal representatives in an application for a certificate can be entertained after the lapse of the period which would otherwise apply (i.e., whether the substitution is barred by limitation or can be treated as an amendment and entertained irrespective of time).
Arguments of the Parties
Applicant / Applicant-Appellant (Union of India)
- The Union made an application for substitution of the deceased opposite party’s legal representatives in the pending application for a certificate under Article 133 and sought relief under Section 5 of the Limitation Act, 1908 to treat the application as within time.
Learned Additional Advocate-General
- Contended that the application for substitution is not governed by Order 22 of the Code of Civil Procedure because Order 22 deals with the death of a plaintiff, defendant, appellant or respondent and the present proceeding involves an applicant and an opposite party.
- Argued that limitation for the substitution application should not be governed by Article 120 (which provides 90 days for applications under the Code) but by Article 137 of the Limitation Act (residuary article providing 3 years), or otherwise that Order 22 is inapplicable so the residuary article should govern.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jowala Singh v. Malkan, AIR 1958 Punj 171 | Applied principle of inclusio unius to hold that Order 22 does not govern death of parties to applications; Article 176 (corresponding to Art. 120) not applicable to such applications. | The Court cited Jowala Singh for the proposition that Order 22 should not be applied to proceedings (like certificate or revision applications) where parties are described as applicants and opposite parties rather than plaintiffs and defendants. |
| Noor Ahmad v. Chattomal, AIR 1934 Sind 36 | Held that prior to grant of leave to appeal there is only an applicant and opposite party, not appellant/respondent, so Article 120 does not apply in terms. | Used to support the view that an application for a certificate (analogous to leave to appeal) is anterior to an appeal and therefore Article 120 / Order 22 do not apply. |
| Commr. of Income-tax v. I.D. Varshani, AIR 1953 All 414 | Earlier held that Arts. 176 and 177 (Limitation Act 1908) referring to plaintiff, defendant, appellant or respondent cannot be said to be applicable to an application under Section 66(1) of the Income-tax Act and that the death of a party in such an application is governed by the residuary article. | The Court noted this decision but explicitly recorded that the contrary view in I.D. Varshani stands overruled by later authority (Bombay Gas Co. v. Gopal Bhiva) and therefore did not follow Varshani on the residuary-article point. |
| Khatijanbai v. Nur Mahomed, AIR 1929 Sind 136 | Held that an application for permission to sue as a pauper cannot be dismissed by applying Rule 4 of Order 22 read with Section 141; an application is not a suit and the penalty in R.4 cannot apply. | Cited to reinforce that Order 22's specific provisions cannot be mechanically applied to non-suit proceedings (applications) such as certificate applications. |
| Manindra Kumar Bose v. Santi Rani Biswas, AIR 1951 Cal 518 | Held that a subsequent application to substitute a different legal representative in place of one already proposed in a substitution application is an amendment of the substitution application (not a fresh substitution application) and that no limitation is prescribed for amendment applications. | The Court relied on this decision to treat substitution in the present context as an amendment which may be made at any stage, supporting the view that limitation should not bar substitution here. |
| Baldeo Pershad v. Dwarika Pd, (1957 All LJ 316) (AIR 1957 All 334 (KB)) | Observed that an application for a certificate is a step anterior to an appeal and that an appeal comes into existence only when it is granted; thus appellant/respondent only exist once appeal is granted. | Used to emphasize that at the certificate stage there are only applicant and opposite party, reinforcing non-application of Order 22 and Article 120. |
| Thakur Prasad v. Fakirullah, (1895) ILR 17 All 106 | Authority relied on in Jowala Singh to support that Section 141 cannot be used to make Order 22 applicable to a revision application. | Referenced in the Court’s survey of prior authority underpinning the non-application of Order 22 to certain applications. |
| Chakrapani v. Biharilal, AIR 1953 Madh Bha 272 | Took the contrary view (to Jowala Singh) that an application for substitution in a revision should be made within the period prescribed by Art. 176 of the Limitation Act 1908. | The Court expressly dissented from this view, noting that the reasoning did not address the mismatch between Order 22 terminology and applicant/opposite party proceedings. |
| Bombay Gas Co. v. Gopal Bhiva, AIR 1964 SC 752 | Held that Article 137 (or corresponding Article 181 of the 1908 Act) refers to an application made under the Code of Civil Procedure and not to "any other application". | The Court relied on this Supreme Court authority to conclude that Article 137 does not apply to the present application for substitution (which is not an application under the Code) and consequently that the residuary article does not prescribe limitation here. |
Court's Reasoning and Analysis
The Court proceeded by first asking whether Order 22 of the Code of Civil Procedure (which deals with substitution on death, marriage and insolvency of parties in suits and appeals) governs an application for a certificate under Article 133. It acknowledged that Section 141 of the Code requires the procedure in the Code to be followed in proceedings in courts of civil jurisdiction "so far as it can be made applicable." The High Court, when considering whether to grant a certificate under Article 133, is exercising civil jurisdiction because it must decide whether the facts necessary to support a certificate exist; an application for a certificate therefore gives rise to a proceeding in a court of civil jurisdiction.
However, the Court emphasized that the mere fact that the Code can, "as far as it can be made applicable", be applied to such a proceeding does not permit mechanical or forced application of Order 22 where its language does not fit. Order 22 consistently uses the terms "plaintiff" and "defendant" (and, by Rule 11, these are extended to "appellant" and "respondent" in appeals). In a certificate application there are only an "applicant" and an "opposite party." Without express authority to treat "plaintiff" as including "applicant" and "defendant" as including "opposite party", Order 22's provisions cannot be given effect to in these proceedings.
The Court surveyed precedents holding that Order 22 does not apply to deaths occurring in analogous applications — revision under Section 115, applications under Rule O.33 (pauper suits), leave to appeal applications, and applications under Section 66(1) of the Income-tax Act — and found their reasoning persuasive for the certificate context. It noted Baldeo Pershad's observation that a certificate application is a step anterior to an appeal and that appellant/respondent status only arises once an appeal is granted; therefore Article 120 (which refers to plaintiff/appellant/defendant/respondent) does not fit the certificate stage.
The Court further examined whether any other rule or statutory provision prescribes limitation for substitution in a certificate application. It found no rule in the Rules of Court dealing with substitution prior to grant of a certificate; the Supreme Court Rules provisions relied upon (Order XVI Rules 12 and 13) deal with substitution after a certificate has been granted. Consequently, there is no provision in the Code or Rules prescribing limitation for substitution in an application for a certificate.
Regarding residuary limitation (Article 137 of the Limitation Act of 1963), the Court relied on Bombay Gas Co. v. Gopal Bhiva (AIR 1964 SC 752) to hold that Article 137 applies only to applications made under the Code of Civil Procedure and not to "other" applications; therefore Article 137 does not prescribe limitation for the present substitution application. In doing so the Court recorded that the contrary view in I.D. Varshani (that residuary article governed) was overruled by the Supreme Court in Bombay Gas Co.
Given that no period of limitation was prescribed for substitution of a legal representative in a certificate application, the Court concluded there is no ground of limitation to bar such substitution. The Court treated substitution as effectively an amendment to an existing application (supported by Manindra Kumar Bose) and observed that an amendment may be made "at any stage of the proceedings." Therefore the substitution application had to be entertained irrespective of the delay.
The Court also expressly dissented from the approach in Chakrapani v. Biharilal (AIR 1953 Madh Bha 272) which required substitution within a prescriptive period, on the ground that it did not grapple with the mismatch between Order 22's terminology and proceedings where parties are applicants and opposite parties.
Holding and Implications
HOLDING: The Court held that there is no period of limitation prescribed for an application for substitution of the legal representatives of a deceased opposite party to an application for a certificate under Article 133, and consequently the substitution application filed in the present matter is in order. The substitution is to be treated as an amendment and may be allowed irrespective of the elapsed time.
Direct Consequence / Order: The application is allowed. The Court ordered that the name of opposite party No. 3 be struck out from the application in S.C. Appeal No. 99 of 1963 and be substituted by the names of Raghubir Prasad, etc., as given in the application (paragraph 12). The numbering of opposite parties 4 to 18 was to be appropriately corrected, and the Standing Counsel was permitted to make necessary corrections in the application.
Implications Noted by the Court: The Court observed that the absence of a limitation period for substitution in certificate applications may represent a lacuna in the Rules of Court, but on the facts before it the application could not be said to be barred by time. The Court relied on Supreme Court authority (Bombay Gas Co. v. Gopal Bhiva) to refuse to apply the residuary article to non-Code applications and thus declined to follow the contrary reasoning in I.D. Varshani.
No broader declaratory rule beyond the case-specific holding was announced beyond the court's legal conclusions that (i) Order 22 cannot be mechanically applied to certificate applications because of terminology mismatch, (ii) Article 120 does not apply at the certificate stage, and (iii) Article 137 (residuary) does not apply to non-Code applications per the Supreme Court authority cited.
Disposition
The application for substitution of the legal representatives of the deceased opposite party was allowed and the record was to be amended accordingly. The formal order concludes: "Application allowed."
Judgement
DESAI, C. J. : The decree was passed jointly against the applicant-appellant (The Union of India) and the authorized controller. During the pendency of the application by the Union of India for a certificate under Art. 133 of the Constitution the authorised controller, who was an opposite party along with the plaintiff, died. This application for the substitution of his legal representatives in the application for a certificate has been made more than 150 days of his death. There is an application under S. 5 of the Limitation Act of 1908 for treating the application as within time. The learned Additional Advocate-General, however, contends that the application for substitution is not governed by O. 22 of the C.P.C. and the limitation in this case is governed not by Art. 120 but by Art. 137 of the Limitation Act of 1963. Article 120 provides a period of 90 days limitation for an application "under the Code of Civil Procedure to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent, made a party" and the period commences on "the date of death of the plaintiff, appellant, defendant or respondent as the case may be" Article 137, which is a residuary Article, provides 3 years period of limitation commencing on the date on which the right to apply accrues for "any other application for which no period of limitation is provided elsewhere in this Division".
2. The first question is whether O. 22 governs an application for a certificate under Art. 133 of the Constitution. Order 22 applies in a suit and in an appeal; it is not made applicable expressly to any other proceeding such as an application for a certificate under Art. 133. By S. 141 of the C.P.C. the procedure provided in the Code in regard to suits is to be followed, "as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction". A High Court is a Court of civil jurisdiction but the question is whether when it issues a certificate under Art. 133 it acts as a Court of civil jurisdiction and an application for a certificate is a proceeding in such a Court. This Court certainly acted as a Court of civil jurisdiction when it disposed of the appeal in the suit brought against the applicant and the authorised controller. Under Art. 133 an appeal lies from the decree passed by it to the Supreme Court provided a certain certificate is granted by it. Article 133 does not lay down any procedure for obtaining a certificate referred to in it; it does not even require an application for a certificate to be made by a party to the decree wishing to appeal from it. Before issuing a certificate this Court has certainly to decide whether the facts to be certified exist or not; it can issue a certificate only if they exist and must refuse it if they do not. It may be said that deciding whether they exist or not is exercising civil jurisdiction and. therefore, the Court can be said to act in exercise of civil jurisdiction when deciding whether to giant, or not to grant, the certificate. There has to be a proceeding before it; unless there is a proceeding it cannot adjudge the claim for a certificate. Its deciding whether the facts exist or not is itself a proceeding. Therefore, when the application was made for certificate there came into existence a proceeding in a Court of civil jurisdiction and the Civil Procedure Code applies to it. But it applies as it stands; it is not to be modified or altered in any manner. It is O. 22 that applies to the proceeding, i.e., its provisions apply but they can be given effect to only if the facts of the application come within the scope of their language. It deals with the death, marriage and insolvency of a plaintiff or a defendant or an appellant or a respondent. An appeal under the Code of Civil Procedure is a proceeding in a Court of Civil jurisdiction and is governed by O. 22. But in an appeal there is no longer any plaintiff or defendant, there are instead an appellant and a respondent and that is why express provision has been made in R. 11 (of O. 22) providing that the word plaintiff includes an appellant and the word defendant, a respondent. Without that provision, though O. 22 applies in an appeal, its provisions could not be given effect to because they refer to plaintiffs and defendants and not to appellants and respondents. Similarly, without a provision that "plaintiff" includes an applicant and "defendant", an opposite party, even though O. 22 may apply to an application for a certificate it is not possible to give effect to its provisions because in such a proceeding there are only an applicant and an opposite party and not a plaintiff and a defendant. Without the required authority one cannot give effect to the provisions of the Order as if "plaintiff" included "applicant" and "defendant", "opposite party". In such a proceeding the Court is concerned with the death of an applicant or an opposite party and O. 22 does not deal with the death of an applicant or an opposite party; so even if it applies, the facts do not come within the scope of its provisions and they cannot be given effect to.
3. The proceeding commencing on an application for a certificate under Art. 133 is similar to a proceeding commencing on an application for revision under S. 115 of the C.P.C. or an application under O. 22 for substitution of the legal representatives of a deceased defendant in a pending suit, or an application for leave to appeal to the Supreme Court or a reference under S. 66(1) of the Indian Income-tax Act or an application under O. 33 for permission to sue as a pauper. It has been held that O. 22 does not apply to the death of a party in these proceedings; see Jowala Singh v. Malkan, AIR 1958 Punj 171, Noor Ahmad v. Chattomal, AIR 1934 Sind 36, Commr. of Income-tax v. I.D. Varshani, AIR 1953 All 414, Khatijanbai v. Nur Mahomed, AIR 1929 Sind 136 and Manindra Kumar Bose v. Santi Rani Biswas, AIR 1951 Cal 518. In the case of Jowala Singh, AIR 1958 Punj 171, Tek Chand, J. applied the principle of inclusio unius to hold that O. 22 does not govern the death of parties to applications and that Art. 176 (corresponding to Art. 120 of the New Act) is not applicable. He disagreed with Chakrapani v. Biharilal, AIR 1953 Madh Bha 272 and held that S. 141 cannot be availed of to make O. 22 applicable to a revision application under S. 115, C.P.C. and relied upon Thakur Prasad v. Fakirullah, (1895) ILR 17 All 106. In Khatijanbai, AIR 1929 Sind 136, Rupchand, A.J.C., held that an application for permission to sue as a pauper cannot be dismissed by applying Rule 4 of O. 22 read with S. 141; he observed that even if O. 22 applies to such an application the penalty provided by R. 4 cannot apply as an application is not a suit. In Noor Ahmads case, AIR 1934 Sind 36, Aston and Rupchand, A. J. Cs. stated that prior to an application for leave to appeal to the Privy Council being granted there is no appellant or respondent and there is only an applicant and an opposite party and that Art. 120 does not apply in terms. The learned Assistant Judicial Commissioners approved of the decision in Khatijanbai, AIR 1929 Sind 136. In the case of I.D. Varshani, AIR 1953 All 414 Malik, C.J. and Bhargava, J. said that Arts. 176 and 177 of the Limitation Act of 1908 referring to a plaintiff, defendant, appellant or respondent cannot be said to be applicable to an application under S. 66(1) of the Income-tax Act and that the death of a party in such an application is governed by the residuary article. The reasons given in these cases for holding that O. 22 does not apply to the death of a party in these proceedings justify the decision that it does not apply to the death of a party in an application for a certificate. It is to be noted that at the stage of an application for a certificate there is no appellant and respondent; it was pointed out in Baldeo Pershad v. Dwarika Pd. 1957 All LJ 316 : ((S) AIR 1957 All 334 (KB)), that an application for a certificate is only a .step anterior to an appeal and that an appeal comes into existence only when it is granted. There is appellant and respondent only when there is an appeal; prior to the coming into existence of an appeal there are no appellant and respondent and consequently death of a party to such an application is not within the scope of O. 22 which deals with death of a plaintiff, defendant appellant or respondent only.
4. There is no other law dealing with death of a party which might apply to the death of a party to an application for a certificate. The Rules of Court do not contain any rule regarding death of a party to an application for a certificate. Rule 19 of Chap. XXIII of Rules of Court lays down that substitution of legal representatives in case of death is governed by Rr. 12 and 13 of O. XVI of Supreme Court Rules, but Rr. 12 and 13 of O. XVI of Supreme Court Rules deal with death of a party after a certificate has been granted. The Supreme Court Rules do not deal with the procedure to be followed before a certificate is granted. The result is that there is no rule which requires an application to be made for substitution of the legal representatives of a deceased party in an application for a certificate.
5. Article 120 of the Limitation Act prescribes the period of limitation for an application for substitution of the legal representatives of a deceased party when it is made under the Code of Civil Procedure and the deceased party is a plaintiff, defendant, appellant or respondent. The Article has no application if the deceased cannot be described as a plaintiff, defendant, appellant or respondent or the application for substitution is not governed by any provision of the Code of Civil Procedure. We have found that there is no provision in the Code of Civil Procedure prescribing an application for substitution of the legal representatives of a deceased party to an application for a certificate. Further, a deceased party to such an application cannot be described as a plaintiff or defendant or as an appellant or respondent. The result is that the application made in the instant case is not governed by the period of limitation prescribed by Art. 120. One might have thought that in that event the residuary Art. 137 would apply, but it has been held in Bombay Gas Co. v. Gopal Bhiva, AIR 1964 SC 752, that Art. 137 (or the corresponding Art. 181 in the Limitation Act of 1908) refers to an application made under the Code of Civil Procedure and (not ?) to any other application. The contrary view taken in I.D. Varshani, AIR 1953 All 414 (supra) stands overruled. Article 120 deals with an application made under the Code of Civil Procedure for the substitution of the legal representatives of a deceased plaintiff, defendant, appellant or respondent; if an application for substitution of the legal representatives of a deceased party, who cannot be described as a plaintiff, defendant, appellant or respondent, was governed by a provision of the Code of Civil Procedure, the limitation for it would be governed by Art. 137 but we have found that it is not governed by any provision of the Code of Civil Procedure and, therefore, Art. 137 does not prescribe the period of limitation for it. The result is that there is no period of limitation prescribed for an application for substitution of the legal representatives of a deceased party to an application for a certificate. This may be a lacuna in the Rules of Court but the fact remains that the instant application cannot be said to be barred by time.
6. When an application is made there must be parties to it; there must be a person to make the application and there must be a person against whom it is made. So every application must have an applicant and an opposite party. When after an application has been made one party or the other dies the legal representatives must be brought on the record. As there is no period of limitation for an application for substitution an application for substitution can be made at any time so long as the application is pending No application can be decided on merits if the applicant or the opposite party is dead and must be dismissed on the ground that one party or the other does not exist. But if an application for substitution of the deceased partys legal representatives is made it must be entertained regardless of the question of limitation and if the substitution is done the defect in the application disappears and it can be proceeded on merits. The substitution is nothing but an amendment of the application; in the case of Manindra Kumar Bose, AIR 1951 Cal 518, there was an application under O. 22 for substitution of X as a legal representative of a deceased defendant of the pending suit, X himself died during the pendency of the application and Sen and K.C. Chunder, JJ., held that an application for substituting another legal representative of the deceased defendant in place of X was an application for amendment of the substitution application and not another substitution application. No period of limitation is prescribed for an amendment application. Order 6, R. 17 itself uses the words at any stage of the proceedings".
7. In AIR 1953 Madh Bha 272, Abdul Hakim Khan, J., observed that if a party to a revision application dies an application for substitution should be made within the period of limitation prescribed by Art. 176 of the Limitation Act of 1908 because such an application is a civil proceeding within the meaning of S. 141, C.P.C. The learned Judge, did not at all discuss how O. 22 dealing with a plaintiff, defendant, appellant or respondent can be given effect to in a proceeding in which there are only an applicant and an opposite party and we respectfully dissent from the view taken.
8. In the result we agree with the learned Additional Advocate-General that there is no period of limitation prescribed for an application for substitution of the legal representatives of a deceased opposite-party to an application for a certificate under Art. 133. This application is, therefore, in order. It is merely an amendment application.
9. It is not disputed that the deceased opposite partys legal representatives are those mentioned in the application.
10. The application is allowed. Strike out the name of opposite party No. 3 from application in S. C. Appeal No. 99 of 1963 and substitute in its place the names of Raghubir Prasad, etc., given in Para. 12 of this application. The numbers of the opposite parties 4 to 18 shall be appropriately corrected. The Standing Counsel is permitted to make the necessary corrections in the application.
Application allowed.
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