Since the subject matter of these applications are interwoven, with the consent of the learned counsels appearing for the parties, the Court proceeds to decide all of them by a common order which follows as under.
Instant writ petition has arisen out of the orders passed by the Revenue Courts wherein the auction sale dated 26.05.1993 has been challenged. It so happened that late Shyam Sunder, husband of the deceased-sole petitioner, Smt. Siya Dulari had taken some loan from bank for purchase of tractor. Since he committed default in repaying the loan, landed property in question was proceeded against and coercive steps were taken under the relevant provisions of U.P. Zamindari Abolition & Land Reforms Act (hereinafter referred to as ''U.P.Z.A. & L.R. Act') and the Rules framed thereunder. The coercive measures adopted ultimately resulted in auction of the land belonging to late Shyam Sunder on 26.05.1993. Late Shyam Sunder and Smt. Siya Dulari both filed an application on 15.6.1993 to set aside the auction sale dated 26.5.1993 under Rule 285-I of the Rules framed under U.P. Z. A. & L. R. Act. The said sale objection was allowed by the Additional Commissioner by means of the order dated 6.11.1997. Against the order dated 6.11.1997 whereby the auction sale was set aside, Sri Ummed Singh Jain-respondent no.5 preferred a revision petition before the Board of Revenue which was allowed by means of the order dated 14.11.2000. Remanding the matter, revisional court directed the Additional Commissioner to decide the sale objection afresh on merits. After remand, the sale objection preferred by Smt. Siya Dulari was rejected by the Additional Commissioner by means of order dated 28.10.2003. Against the order dated 28.10.2003, an application appears to have been preferred by the deceased-petitioner Smt. Siya Dulari for setting aside the order dated 28.10.2003, however, the said application was also rejected by the Additional Commissioner (Judicial), Lucknow Division, Lucknow by means of order dated 3.11.2004.
There are the aforesaid two orders of the Additional Commissioner, namely, orders dated 28.10.2003 and 3.11.2004 against which the instant writ petition has been preferred. The writ petition was listed on 06.07.2012, however, it was dismissed for non-prosecution.
Now, Smt. Arti Mishra and Smt. Palthi Devi have moved an application for their substitution in place of the deceased-petitioner Smt. Siya Dulari and have also moved applications for condonation of delay in moving the application for substitution and for setting aside abatement of the writ petition. The said applications have been preferred by the aforesaid two applicants with the assertion therein that they are the natural legal heirs of the deceased-petitioner, Smt. Siya Dulari, who died on 29.08.2011. Another application has been preferred by the applicants for recalling the order dated 06.07.2012 and restoring the writ petition on its original number.
Objection in the form of a counter affidavit has been filed by opposite party no.5, primarily on the ground that since late Smt. Siya Dulari during her life time had executed a sale deed on 3.11.1998 in favour of one Smt. Baby, daughter of Sri Sushil Kumar, as such right to sue does not survive to the applicants and hence the application moved by the applicants seeking substitution of their names in place of deceased-petitioner is erroneous, misconceived and is liable to be rejected.
I have heard Sri R. D. Shahi, learned counsel appearing for the applicants and Sri J. P. Mathur, learned counsel appearing for opposite party no.5.
At the outset, Sri J. P. Mathur, learned counsel appearing for opposite party no.5 has categorically submitted that he does not have any objection so far as the application for recall of the order dated 06.07.2012 is concerned. However, he stated that since after execution of sale deed on 3.11.1998 in favour of Smt. Baby, daughter of Sri Sushil Kumar, by the deceased-petitioner- Smt. Siya Dulari right to sue to the applicants does not survive and hence at their behest the proceedings of the instant writ petition can not be permitted to be continued. He further submitted that in absence of right to sue in favour of the applicants, the application made on behalf of the applicants should be rejected and writ petition should be treated to have abated.
Subject matter of substitution of legal heirs of the parties to a suit or a proceeding has been dealt with in Order 22 of the Code of Civil Procedure (hereinafter referred to as the Code). Though the provisions of Code of Civil Procedure are not applicable strictly to the writ proceedings, however, broad principles laid down in the Code are guiding factor for the Court to proceed in a case. Order 22 Rule 3 gives a procedure in case of death of one of several plaintiffs or of sole plaintiff. According to the said provision, where a sole plaintiff in a suit dies and the right to sue survives, the Court on an application made in that behalf shall cause the legal representative of the deceased-plaintiff to be made a party and shall proceed with the case. Sub Rule 2 of Rule 3 further provides that if no application for substitution is made within time prescribed by law, the suit shall abate so far as the deceased-plaintiff is concerned. However, Order 22 Rule 9 provides that under certain circumstances, if the legal representative of the deceased-petitioner moves an application to set aside the abatement, the Court may set aside abatement upon such terms as to costs or otherwise as it thinks fit. It is these provisions of 22 and Rule 9 which have been invoked by the learned counsel appearing for the applicants, Sri R. D. Shahi. He submitted that since in the application moved seeking setting aside abatement of the writ petition, sufficient cause has been shown which prevented the applicants to move the application earlier, as such abatement of the writ petition be set aside and applicants be substituted in place of the deceased-petitioner and further that since sufficient reasons have been given in the application seeking recall of the order dated 6.07.2012, as such, the said order be recalled and writ petition be restored to its original number and be heard and decided on merits.
The Court may observe that provisions of Order 22 of the Code have not been devised by the legislature to penalize; rather they contain Rules of Procedure and substantial rights of the parties should not be defeated by adopting pedantic approach by observing the provisions strictly as to the procedural aspect of law. It is further noteworthy that the purpose of substitution is not to determine the respective claims on merit between the parties rather the very object of substitution is to allow a person to continue the litigation by representing the deceased party/person.
It has been held by Hon'ble Apex Court in the case of Krishna Singh vs. Mathura Ahir and others, AIR 1980 SC 707 that " the general rule is that all rights of action and all demands whatsoever, existing in favour of or against a person at the time of his death survive to or against his legal representative."
Two phrases occurring in Order 22 Rule 3 are relevant to be noted for deciding the objections raised on behalf of opposite party no.5 and these are; (1) "right to sue survives" and (2) "legal representative". The word "legal representative" has been defined in Section 2 (11) of the Code of Civil Procedure. The definition of legal representative given in the Code is as under:-
(11) "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;"
It is noticeable that "legal representative" in the Code of Civil Procedure has been defined to mean a person who represents the estate of the deceased person and includes any person who intermeddles with the estate of the deceased. Thus, two sets of persons would constitute a "legal representative", namely, (1) those who can represent the estate of a deceased person in law and; (2) who intermeddle with the estate of the deceased. The first set of persons to constitute a "legal representative" of the deceased person will be his natural legal heirs and the second set of persons to constitute "legal representative" of the deceased person will be the persons who intermeddle with his estate. In this view, so far as the natural legal heirs are concerned, there is no doubt that they constitute "legal representative". In addition to the natural heirs, as per the definition of the word "legal representative" occurring in Section 2 (11) of the Code of Civil Procedure, the persons who intermeddle in the estate of the deceased, meaning thereby the persons on whom the right in the estate of the deceased is assigned by way of some legal mode, will also constitute "legal representative". Applying the meaning given to the word "legal representative" in Section 2 (11) of the Code of Civil Procedure to the facts of the instant case, what would emerge is that the applicants, who are the natural legal heirs of the deceased-petitioner-Smt. Siya Dulari, are her "legal representative". Since the rights in property in question have been assigned to Smt. Baby, daughter of Sri Sushil Kumar by the deceased petitioner through sale-deed dated 03.11.1998, as such, Smt. Baby, daughter of Sri Sushil Kumar would also be a "legal representative".
However, the question which now falls for consideration of the Court is as to whether in absence of any application for substituting Smt. Baby, daughter of Sri Sushil Kumar by way of her impleadment as petitioner in place of the deceased-petitioner-Smt. Siya Dulari, the application moved by her daughters i.e. the applicants can be maintained and as to whether the applicants can be ordered to be substituted in place of the deceased-petitioner to be able to continue the proceedings of the writ petition.
It is noticeable that for bringing the "legal representative" of the deceased parties on record in case of their death, two separate sets of provisions can be found in order 22 of the Code of Civil Procedure. In case of death of plaintiff (read petitioner in the instant case), if the application is moved by the natural legal heirs of the deceased-petitioner, the provisions of Order 22 Rule 3 would be applicable; whereas in case of substitution of the successor-in-interest of the deceased-petitioner i.e. substitution of a person to whom any interest is assigned, created or devolved, the provisions of Order 22 Rule 10 will be attracted.
A bare reading of Rule 3 and Rule 10 of Order 22 of the Code makes a clear distinction between these two provisions. In case of substitution of a person to whom some right is assigned or created or upon whom any such right in respect of the property in suit during pendency of a suit devolves upon, continuance of the suit may be allowed only by leave of the Court. The Court, at this juncture, observes that transfer of a suit property during pendency of the suit does not take away plaintiffs right to sue. In case the natural legal heirs are not brought on record in place of the deceased-petitioner, the proceedings of the case would abate automatically. However, if there is an assignment or devolution of interest to some other person during pendency of the suit, the suit may still be continued with the permission of the Court at the behest of a person upon whom such interest has devolved during pendency of the proceedings. In such a situation, the person seeking continuance of the suit even after the death of the plaintiff has to merely seek leave or permission of the Court for its continuance. He need not apply for setting aside abatement. In this regard, paragraphs 6, 7 and 25 of the judgment of the Apex Court reported in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University and others, AIR 2001 SC 2552 may be referred to.
It has been held by the Apex Court in the aforesaid case of Dhurandhar Prasad Singh (supra) that Order 22 Rule 10 provides for cases of devolution of interest during pendency of a suit and the provision is based on the principle that trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit is devolved upon another during its pendency. Relevant excerpts occurring in para 6 of the aforesaid judgment in the case of Dhurandhar Prasad Singh (supra) is quoted below:-
"Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit other than those referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of suit is devolved upon another during its pendency but such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. But, if no such a step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interest in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom interest had devolved. The legislature while enacting Rules 3, 4 and 10 has made clear cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the grounds postulated therein. In cases covered by Rule 10, the legislature has not prescribed any such procedure in the event of failure to apply for leave of the Court to continue the proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that the legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record."
Applying the aforesaid principle of law laid down in the case of Dhurandhar Prasad Singh (supra) what emerges in the instant case is that even though the deceased-petitioner had assigned her right in favour of Smt. Baby, daughter of Sri Sushil Kumar through sale-deed dated 03.11.1998 during pendency of the proceedings before the courts below but right to sue in her natural legal heirs i.e. the applicants does survive. The effect of non-impleadment of Smt. Baby, daughter of Sri Sushil Kumar is only that she will be bound by the result of the instant writ petition. It has clearly been held in the case of Dhurandhar Prasad Singh (supra) that though the subject matter of a suit devolves upon another during its pendency but such a suit may be continued with the leave of the Court by or against a person upon whom such interest has devolved and further that in case, leave of the Court by or against the person upon whom interest in the subject matter of the proceedings had evolved has not been sought, the suit may be continued with the original parity. In the instant case, since the petitioner has died, the proceedings of the instant writ petition would be allowed to continue by her natural legal heirs as no application has been moved by Smt. Baby seeking leave of the Court to continue the proceedings of the writ petition; with the result only that whatever may be the fate of the writ petition, Smt. Baby, daughter of Sri Sushil Kumar would be bound by the same.
In the light of the discussion made above and keeping in view the principle of law laid down by the Apex Court in the case of Dhurandhar Prasad Singh (supra), the Court holds that the application moved by Smt. Arti Mishra and Smt. Palthi Devi seeking their substitution in place of the deceased-petitioner Smt. Siya Dulari is maintainable for the reason that right to sue to them survives. The Court finds that the reasons shown in the application seeking condonation of delay in moving the substitution application and in the application seeking setting aside abatement are sufficient. Accordingly, the abatement of the writ petition is set aside. Delay in moving the substitution application is condoned. Application for substitution moved by the applicants Smt. Arti Mishra and Smt. Palthi Devi is allowed.
Let necessary amendments in the array of petitioner be incorporated by learned counsel for the petitioner within a week.
So far as the application for recalling the order dated 06.07.2012 is concerned, the Court finds the reasons shown in the said application to be sufficient to recall the said order. Accordingly, the order dated 06.07.2012 is hereby recalled. The writ petition is restored to its original number.
Let this case be listed before the appropriate Bench.
Order Date :- 07.09.2012 Akhilesh/-