JUDGMENT S.N. Srivastava, J.
1. Present petition has been instituted assailing of the order dated 7.3.2005 passed by Division Bench of Board of Revenue whereby Application No. 30 of 1996-97 was allowed and order dated 24.2.1997 of the learned Single Member of Board of Revenue passed in Revision No. 18 of 1989-90 was set aside and the matter was remitted to the trial court for decision afresh of substitution application after affording opportunity of hearing to both the parties.
2. I am constrained to say that this case presents a dismal picture of how ingenuity is exercised to procrastinate the matter for years together by recourse to unmerited technicalities. The instant case furnishes obtrusive instance how hapless widow has been harassed for years together who ultimately left for heavenly abode with forlorn hope of seeing fruits of her labour during her life time. The litigation in the instant case erupted with the institution of suit under Section 229/209 of the U.P.Z.A. & L.R. Act for declaration by Kanha, plaintiff. The ups and downs of the case ray be recapitulated. The suit came to be decreed exparte on 31st Jan 1978 against which Smt. Lilawati arrayed as defendant, preferred an application on 2.6.1978 under Order IX, Rule 13 C.P.C. on the allegations that she was never served any notice and that the exparte decree was liable to be set aside. The said application came to be dismissed for default on 20.6.1979. Another application was filed in the course of the day and upon this application, the order was recalled the same day i.e. 20.6.1979. The plaintiff dragged the order in revision before the Additional Commissioner who made a reference to the Board of Revenue recommending that the revision be allowed and trial court be directed to decide the restoration application in accordance with law. The reference made to the Board of Revenue was accepted on 28.1.1987. During the pendency of Reference before the Board of Revenue, plaintiff Kanha breathed his last leaving behind his only son Niranjan Lal, petitioner of the present petition. On 6.6.1989, the petitioner moved an application stating that as no substitution application was moved within three months, the restoration application of Smt. Lilawati be dismissed as having abated. The application did not find favour and was rejected. Revision preferred against the said order was also dismissed on 18.10.1989. Subsequently, learned Single Member of the Board of Revenue who was seized of the matter, set aside the order passed by the Additional Commissioner vide order dated 24.2.1997 and ordered the suit as having abated for want of substitution. The matter ultimately came to be heard by a Division Bench of the Board of Revenue and the order passed by the Division Bench has been impugned in the instant petition.
3. Learned counsel for the petitioner premised his submission on the ground that the order passed in review application is vitiated as the Division Bench of the Board of Revenue lacked jurisdiction. The learned counsel further canvassed that though the order passed by the learned Single Member rejecting the matter has having abated, was recalled but there is no indicium on record to show whether the revision was disposed of or subsisted. The next submission advanced by the learned counsel has been phrased in the manner that substitution application was not made within the prescribed period of 90 days and hence restoration application was rightly dismissed as having abated by the Board of Revenue but on review the order was wrongly recalled and impugned order is therefore liable to be quashed.
4. The questions that crystallize for consideration in the case are:
1. What is the limitation for seeking substitution in the Restoration Application?
2. If heirs of deceased party have already put in appearance, would the proceedings abate in case formal application or substitution is not moved?
3. Whether the impugned order of Board of Revenue reviewing the order of Learned Single Member of the Board of Revenue is illegal and vitiated in law?
5. In connection with the first question, it has to be seen whether proceeding for substitution in restoration application is a miscellaneous proceeding or not. Section 141 of the C.P.C. deals with miscellaneous proceeding. It being germane to the controversy involved is quoted below.
"141. Miscellaneous proceedings- The procedure provided in this Code in regard to suit shall be followed as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction.
[Explanation.- In this section, the expression "proceedings" includes proceedings under Order IX but does not include any proceeding under Article 226 of the Constitution.]"
6. Explanation to Section 141 clearly envisages that the expression "proceedings" in this section includes proceedings under Order IX but does not include any proceeding under Article 226 of the Constitution. It brooks no dispute that proceeding for substitutions initiated in the case falls within the periphery of miscellaneous proceeding. Now, the question to be considered is in view of the fact that proceeding for substitution has the complexion of miscellaneous proceedings, what would be the period of limitation in respect of such substitution.
7. The question needs to be dealt with considering that restoration application is neither a suit nor appeal but only a miscellaneous proceeding and proceeding for substitutions in Restoration application has to be treated as miscellaneous application and cannot be equated to a proceeding for substitution in a suit. The limitation prescribed for moving substitution in proceeding arising out of a suit is 90 days while in miscellaneous proceeding, residuary clause of Article 137 has to be called in aid. Article 137 being relevant may be abstracted below.
"137. Any other application for which no period of limitation is provided elsewhere in this division- three years- when the right to apply accrues."
8. It would thus be evinced that the provision of this Article has to be called in aid in proceedings for which no period of limitation has been provided elsewhere in the schedule to Act. As stated supra, the proceeding for substitution arising from Restoration application having been held to be treated as misc. proceeding, the period of limitation for such proceeding would come to be governed by residuary clause to Article 137 of the Limitation Act. The period of limitation in Article 137 of the Act being three years, the limitation for moving application for substitution in the proceeding is held to be three years. The question No. 1 is answered accordingly.
9. Descending to the next question i.e. question No. 2, I would like to have a peep into the facts of the case. In the instant case, plaintiff deceased died on 24.1.1989 and petitioner sought abatement of restoration application by means of application-dated 6.6.1989. The purpose of moving substitution application is to allow suit or proceeding to go on provided the cause of faction survives. As stated supra, petitioner who is the only surviving heir of deceased Kanha preferred application on 6.6.1989 seeking abatement of the Restoration application on the ground that the respondents had not moved any application for substitution. What would be the implication of this application on the proceeding has to be scrutinized in the perspective of the case. This court cannot gloss over that once the petitioner had moved application attended with a Vakalatnama in the proceeding, and the trial court entertained the said application and also the petitioner was heard through his counsel, he would be deemed to have entered appearance. In view of the fact that the said application was entertained by the trial court and the petitioner was heard through his counsel and necessary sequelae thereof would be that the petitioner shall be deemed to be a party for all purposes. It is of little consequence in the above perspective that formal application to delete name of Kanha has not been made. This being the position in law, the restoration application cannot be jettisoned as having abated and the Division Bench of the Board of Revenue rightly came to the conclusion bearing in mind the aforesaid legal position that the order passed by the learned Single Member of the; Board of Revenue was not sustainable. Even otherwise, the learned counsel for the petitioner has not drawn attention to any infirmity warranting interference. Hence, the second question is also answered accordingly.
10. As regards third question, I have glanced through the orders passed by Learned Single Member in juxtaposition with the order passed by the Division Bench of the Board of Revenue. From the perusal of the order, it would transpire that the Division Bench of the Board of Revenue recalled the order of the learned Single member attended with the direction to the respondent to move formal substitution application for impleadment/substitution of the plaintiff in the perspective of what has been held in its decision by the Division Bench of the Board of Revenue. It does not appear to be the integument of the order to protract final disposal but the underlying object seems to be to do justice between the parties and therefore, the Division Bench of the Board of Revenue was within its competence to relegate the matter to the trial court for decision on merits.
11. In the facts and circumstances of the case, I cannot resist to observe that the matter has suffered protraction on account of dilly dallying by the petitioner inasmuch as it transpires that all conceivable technicalities have been harness into service to prolong disposal of the case ostensibly with the avowed object of depriving Smt. Lilawati, hapless and widowed lacy of her legal rights and as a result, she could not reap the fruit of her legal rights during her life span and breathed her last. The petitioner, it is obvious from the factual matrix, employed every conceivable device and side-winds to prolong the disposal.
12. The Apex Court in Nooruddin v. Dr. K.L. Anand, (1995) 1 SCC 242 has observed as under:
"...Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."
13. Similarly, in Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors., AIR 1997 SC 1236 the Supreme Court gave vent to following observation.
"The power under Article 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point...the interest of justice and public interest coalesce...."
14. In T. Arvandanandam v. T. Satyapal and Anr. AIR 1977 SC 2421 the Supreme Court professed that "the Court should remind itself Section 35 A of the Code of Civil procedure and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives. In such a case, the lawyer also owns a duty not to present such a case". The Apex Court further observed-
"We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the court a case, which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. Remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady action....A judge who succumbs to exparte pressure in unmerited cases helps devalue the judicial process...."
15. In Dr. Buddhi Kota Subbarao v. K. Parasaran and Ors., AIR 1996 SC 2687, the Apex Court held as under:
"No litigant has a right to unlimited drought on the court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
16. Similar view has been echoed by the Supreme Court in Tamil Nadu Electricity Board and Anr v. N. Raju Reddiar and Anr., AIR 1997 SC 1005 Sabia Khan and Ors. v. State of U.P. and Ors., (1999) 1 SCC 271 Abdul Rahman v. Prasoni Bai and Anr, 2003 AIR SCW 14 and K.K. Modi v. K.N. Modi and Ors., (1998) 3 SCC 573
17. In the instant case, it is significant to notice that it took 26 years for the restoration application to be decided at the stage of Board of Revenue and still dissatisfied, the petitioner has invoked the jurisdiction of this Court. A look back into the facts is quite revealing. It was predecessor of the petitioner who obtained exparte decree in the year 1978 and thereafter, the progress of original proceeding of the suit was stymied by the petitioner by repeated recourse to various dilatory means which are too obvious to be taken note of. In the circumstances, I am of the view that it is a fit case in which the harassment meted out to the respondent should be repaired to some extent by awarding exemplary cost. In the circumstances, I and inclined to quantify cost at Rs. 15000/- further directing that the same shall be recoverable as arrears of land revenue. It is ordered accordingly. The cost so realized shall be paid to the respondents.
18. As a result of foregoing discussion, the petition fails and is dismissed with costs as aforesaid.