Case Note & Summary
The appeal arose from a writ petition filed by Sham Singh, father of the appellants, challenging an order dated 15th October 1965 passed by the Additional Director, Consolidation of Holdings, which had modified the allotment of land under a consolidation scheme in village Longowal, District Sangrur, Punjab. The consolidation proceedings were initiated under Section 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. Objections to the scheme were rejected by the Consolidation Officer; however, the Settlement Officer accepted Sham Singh's appeal while rejecting the appeals of Bir Singh and others. Bir Singh's further appeals before the Assistant Director were rejected, but revision applications by Bir Singh and Wazir Singh were allowed by the Additional Director, who ordered changes in land allotment. Sham Singh filed Civil Writ No. 931 of 1966 to quash that order. During pendency, Sham Singh died and the appellants were substituted. On 14th March 1975, the counsel for Bir Singh (respondent no. 2) informed the High Court that Bir Singh had died on 9th December 1971 and no application for bringing his legal representatives had been made. The learned single judge dismissed the writ petition as not maintainable due to absence of necessary parties. The Letters Patent Appeal was also dismissed, relying on the Punjab and Haryana High Court's five-judge bench decision in Teja Singh v. Union Territory of Chandigarh, which held that Order 22 CPC applied to proceedings under Article 226 in view of the High Court's Writ Rules. The appellants contended before the Supreme Court that Articles 226 and 227 vested extraordinary power in the High Court, and that procedure cannot be regulated by CPC; power must be exercised for ends of justice, and technical procedural rules should not circumscribe it. The court analyzed the nature of writ jurisdiction, the principle of abatement under Order 22 CPC, and the effect of the 1976 amendment to Section 141 CPC, which added an explanation excluding proceedings under Article 226 from the expression 'proceedings'. The court observed that even before the amendment, in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, the Supreme Court had held that the words 'as far as it can be made applicable' in Section 141 required consideration of the nature of proceedings and relief sought, and that a writ petition is essentially different from a suit. The court further noted that the Constitution Bench in State of U.P. v. Vijay Anand described the jurisdiction under Article 226 as extraordinary original jurisdiction. After the 1976 amendment, the explanation to Section 141 statutorily recognized that writ proceedings under Article 226 are not proceedings within the meaning of Section 141, so the procedure prescribed in the Code, including Order 22, cannot be applied per se to writ petitions. The court concluded that the High Court erred in dismissing the writ petition on the ground of abatement due to non-substitution of deceased respondent, as Order 22 CPC was not applicable per se to writ proceedings. The final operative direction was not included in the provided judgment text.
Headnote
A) Civil Procedure - Applicability of CPC to Writ Proceedings - Order 22 CPC not applicable per se to Article 226 writ petitions - Code of Civil Procedure, 1908, Order 22; Section 141 - The court examined whether procedural rules like abatement apply to writ petitions. It held that writ jurisdiction is extraordinary and aims at quick and inexpensive remedy; technical CPC rules should not be automatically applied. Held that Order 22 CPC is not applicable per se to writ proceedings (Pages 3-5). B) Constitutional Law - Writ Jurisdiction under Articles 226 and 227 - Extraordinary original jurisdiction - Constitution of India, Articles 226, 227 - The court reiterated that High Court's power under Article 226 is extraordinary original jurisdiction, not ordinary civil jurisdiction, and aims at securing speedy and efficacious remedy; procedural technicalities should not defeat justice (Pages 4-5). C) Civil Procedure - Section 141 Explanation - Effect of 1976 Amendment excluding Article 226 proceedings - Code of Civil Procedure, 1908, Section 141 Explanation (as inserted by Civil Procedure Code (Amendment) Act, 1976) - The court noted that the explanation expressly excludes Article 226 proceedings from the expression 'proceedings' in Section 141, thereby statutorily recognizing that provisions of CPC do not automatically apply to writ petitions (Pages 3-4). D) Abatement and Right to Sue - Survival of Cause of Action - Maxim action personalis moritur cum persona and exceptions - Code of Civil Procedure, 1908, Order 22 Rules 1, 4, 9; Limitation Act, 1963, Article 120 - The court discussed that personal actions die with person, but where right to sue survives, legal representatives can be brought on record; however, these CPC abatement rules are not per se applicable to writ proceedings; High Court erred in dismissing writ petition solely on non-substitution (Pages 2-4).
Issue of Consideration
Whether the provisions of Order 22 of the Code of Civil Procedure, 1908, particularly relating to abatement, are applicable to writ proceedings under Articles 226 and 227 of the Constitution of India, and whether the High Court was justified in dismissing the writ petition for non-substitution of legal representatives of a deceased respondent.
Final Decision
The Supreme Court held that the provisions contained in Order 22 of the Code of Civil Procedure, 1908 are not applicable per se to writ proceedings under Article 226 of the Constitution of India, particularly after the introduction of the Explanation to Section 141 CPC by the Civil Procedure Code (Amendment) Act, 1976, which expressly excludes proceedings under Article 226 from the expression 'proceedings'. Consequently, the High Court erred in dismissing the writ petition on the ground of abatement due to non-substitution of legal representatives of the deceased respondent. The final operative direction was not included in the provided judgment text.
Law Points
- Order 22 CPC not applicable per se to writ proceedings
- Section 141 Explanation excludes Article 226 proceedings
- writ jurisdiction aims at speedy remedy
- abatement rules cannot be mechanically applied
- right to sue survives in non-personal actions
