JUDGMENT S.U. Khan, J.
1. This writ petition was allowed on 19.2.1985
2. Initially trial court had decreed the suit of petitioners for eviction and recovery of arrears of rent, which was filed against respondents 2 to 7, holding that petitioners were landlords and respondents 2 to 7 were tenants. A revision was filed by Lalloo, respondent No. 2 against the said judgment and decree which was allowed by District Judge, Allahabad on 21.4.1980 (Civil Revision No. 159 of 1979 Lalloo v. Kamla Prasad). This writ petition was directed against the aforesaid judgment and order of the Revisional Court. Through judgment and order dated 19.2.1985 passed in this writ petition, judgment and order passed by the Revisional court was substantially reversed and it was held that there was relationship of landlord and tenant in between the parties. However, the matter was remanded to the revisional court to decide only the question of default.
3. Thereafter this application was filed on 16.9.1985 without serving copy of the same upon learned Counsel for petitioner. In the application it was stated that Lalloo, respondent No. 2 had died on 24.5.1983 but no substitution application was filed hence proceedings before revisional court in pursuance of judgment and order dated 19.2.1985 allowing the, writ petition and remanding the matter deserved to be stayed. On this application on 9.10.1985 an order was passed issuing notice and staying further proceedings in pursuance of judgment and order dated 19.2.1985. The application was stated to be on behalf of "Lalloo (now deceased) and after him Ramesh and others" and was accompanied by affidavit of Ramesh son of Lalloo. Names of legal representatives of Lalloo were not mentioned in the application and the affidavit.
4. In the writ petition counter affidavit was filed by Bhola Nath, to respondent No. 6 and in paragraph 1 of the said counter affidavit it was stated that he was doing Pairvi on behalf of other contesting respondents, including respondent No. 2 i.e. Lalloo, who died afterward. All the contesting respondents were joint tenants. In case of joint tenancy every joint tenant can represent the other joint tenant (vide Harish Tandon v. A.D.M. A.I.R. 1995 S.C. 676 and A.C. Juker v. K.P. Mantri A.I.R. 2001 S.C. 2251). In view of this even after the death of Lalloo, his interest was sufficiently represented by respondents 3 to 7. In view of this it cannot be said that death of respondent No. 2 and non-impleadment of his heirs during pendency of writ petition rendered the judgment dated 19.2.1985 to be null and void. In any case, in the application dated 16.9.1985 there is no prayer for setting aside the judgment of this Court dated 19.2.1985. The only prayer is for staying the proceedings of revision before the Revisional Court in pursuance of judgment and order dated 19.2.1985. In my opinion, therefore, judgment and order dated 19.2.1985 cannot be set-aside only on the ground that respondent No. 2, one of the 7 joint tenants had died and his heirs had not been substituted.
5. In this case there is one more aspect, which requires consideration. Through judgment and order dated 19.2.1985 matter was remanded to the revisional court. Within three months of the said date no substitution application to being on record legal representatives of Lalloo who was the only revisionist was filed hence on the basis of argument raised in this application revision itself shall be deemed to have abated.
6. Through the amendment of 1976 Order XXII Rule 4(4) has been added in the C.P.C. By virtue of the said Rule even if legal representatives of such deceased defendant who had not filed written statement or after filing written statement had failed to appear and contest the suit are not brought on record, judgment may be pronounced against such defendant notwithstanding his death and shall have the same force and effect as if it has been pronounced before death took place. Even though the said Rule was not applicable to the situation prevailing in this writ petition at the time of death of Lalloo however, the principle behind the said rule indicates that in certain circumstances inspite of death of one of several defendants/respondents and non-impleadment of his legal representatives, judgment may be perfectly valid.
7. By the same amendment of 1976 it has been provided under Section 141 C.P.C. that procedure provided therein in regard to suits shall be followed as far as it can be made applicable in all proceedings in any court of Civil jurisdiction but not to the proceedings under Article 226 of the Constitution of India. Interpreting the said provision Supreme Court in Pooran Singh v. State of Punjab A.I.R. 1996 Page 1092 held that provisions of Order XXII C.P.C. are not applicable to writ proceedings and even though it is incumbent on the part of the petitioner to substitute legal heirs of respondent within reasonable time however, concept of automatic abatement is not applicable to writ proceedings.
8. By virtue of aforesaid authorities of the Supreme Court of Harish Tandon and A.C. Juker (Supra) even if Lalloo had not been impleaded in the suit, the suit would have been fully competent. At the time of hearing of the writ petition interest of legal representatives of Lalloo was fully safeguarded and the matter was thoroughly argued on behalf of the tenants. There is absolutely no allegation that the tenants/surviving respondents in the writ petition at the time of hearing of writ petition colluded with the landlords and either acted against the interest of legal heirs of Lalloo or ignored their interest.
9. Procedural law cannot be interpreted and applied in such manner that it becomes Master instead of servant. The Supreme Court in Sushil Kumar Sen v. State of Bihar has held that procedure should be handmaid not the mistress. The Supreme Court in Kailash v. Nankoo 2005 (1) A.R.C. 861 (also and after discussing several authorities including that of Sushil Kumar (Supra) held that substantive justice cannot be given a gobye merely because of procedure. In the said authority Supreme Court also referred to Ghanshyam Dass v. Dominion of India particularly the following sentence:
Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.
10. Procedural requirements cannot be interpreted and applied in such manner that it results in throwing the justice into dustbin and make he law look like an ass (The underlined portion is an adaptation of a sentence by Charls Dickness in Pickwick paper).
11. In this case rent of house in dispute consisting of eighth rooms is only Rs. 15 per month and tenants admit that for the last 45 years they have not paid any rent. They cannot be permitted to go scot-tree merely on the basis that in ignorance of death of one of the seven tenants substitution application was not filed by landlord-petitioners. By virtue of Order XXII Rule (10)-A C.P.C. it was essential for learned Counsel for Lalloo to intimate the court about Lalloo's death which was not done. The writ petition was thoroughly argued on behalf of tenants.
12. In view of the above I do not consider it appropriate to set aside the judgment of the writ petition dated 19.2.1985 passed in this writ petition (even if the said prayer is deemed to be included in this application). The application is therefore dismissed.
13. Revisional court is directed to decide the revision expeditiously in pursuance of the judgment dated 19.2.1985. Within two months from today substitution applications in the revision to bring on record legal representatives of deceased parties may be filed. If within two months such applications are filed, the same shall be treated to be within time.
14. During pendency of revision eviction of the tenants shall remain stayed on the condition that they deposit rent before revisional court for immediate payment to the landlords at the rate of Rs. 2,000/- per month with effect from March 2006 onwards by 7th of each succeeding month. This direction is being issued in view of the judgment of Supreme court reported in Atma Ram Properties v. Federal Motors .