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IN THE HIGH COURT OF BOMBAY
Daga V.C., J.
Parvez Rustom Nekoo .... Petitioners.
Versus
Rustom Ardeshir Nekoo (since deceased by his legal heirs)
Khorshed Gusted Sadri thers .... Respondents.
Civil Application No. 171 of 2002 in Writ Petition No. 2581 of 1991, decided on 16-10-2002.
Advocates appeared :
Y.S. Jahagirdar with P.S. Dani, for petitioner.
C.R. Dalvi with P.K. Hushing, for respondent.
Constitution of India - Articles 226 and 227 - Writ petition under Article 226 - No scope for the provisions of CPC - As regards substitution of heirs, it has to be performed within the given period itself - It is 120 days as per Article 120 of Limitation Act - As for delay Court can condone delay - But in petition under Article 227, provisions have to be complied with. - At the same time, the Apex Court while recognising above legal position held that though it cannot be said that provisions contained in Order XXII of the Code are applicable per se to writ proceedings or writ appeals, it does not mean that the petitioner or appellant in such writ petition or writ appeal can ignore the death of the respondent, if the right to pursue remedy even after death of the respondent survives. The Apex Court ruled that after the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such deceased respondent within a reasonable time. For the purpose of holding as to what would be the reasonable time, the Apex Court further ruled that the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased respondent. However, there is no question of automatic abatement of the writ proceedings, even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and consideration of a particular case for the purpose of condoning delay in filing the application for substitution. At this juncture, it will not be out of place to mention that the Apex Court in the case of Puran Singh (supra) was dealing with the proceedings under Articles 226 and 227 of the Constitution of India, even then the necessity of moving an application for substitution was recognised. But the case in hand is a writ petition filed under Article 227 of the Constitution of India which is well within the sweep of Section 141 of the CPC. Therefore, the provisions of Order XXII of CPC would be very much applicable to the writ petitions filed solely under Article 227 of the Constitution. Alternatively, assuming it to be not applicable for the sake of argument, the same cannot escape the necessity of moving an application for substitution of bringing the legal heirs on record. In view of death of the respondent No. 1, it was obligatory on the part of the petitioner to substitute name of the deceased respondent No. 1 in the petition filed under Article 27 of the Constitution of India. If that be so, it cannot escape the legal consequence of dismissal of the application seeking substitution.
THE FACTS:
The facts giving rise to the present civil application in nutshell are as under:
2. The dispute relates to a shop premises located on the ground floor of house No. 259/260, M.G. Road, Pune. The original plaintiffs Mr., Phiroz Dara Suratia and one Mrs. Dina Dara Suratia claiming to be landlords, filed a suit being Civil Suit No. 5998 of 1981 for recovery of possession and mesne profits against their tenants M/s. Mazda Electric Stores, of which Mr. Rustom Ardeshir Nekoo and Mr. Dara Phiroz Suratia were the partners. These persons were shown as defendant Nos. 1 to 3. The detailed reference to the status of other defendants viz. defendant Nos. 4-Abdul Kadar Mohammed Gaus Chaviwala and defendant No. 5 Fatimabai Hussainbhai Pakitwala is not necessary except that they were also arrayed as parties to the suit. The suit came to be tried by the 3rd Additional Small Causes Court, Pune, who was pleased to decree the suit and directed the defendant Nos. 1, 2 and 3, viz. M/s. Mazda Electric Stores, Mr. Rustom Ardeshir Nekoo and Mr. Dara Phirozshaw Surartia to deliver vacant possession of the suit premises. The suit claim for possession against defendant Nos. 5 and 6 came to be dismissed.
3. Being aggrieved by the aforesaid judgment and decree, 2 appeals came to be filed; one by M/s. Mazda Electric Stores being Civil Appeal No. 666 of 1985, another by original defendant No. 3-Mr. Dara Suratia being Civil Appeal No. 702 of 1985. During the pendency of these two appeals in the District Court, Pune, one Mr. Parvez Nekoo, son of Rustom Nekoo (original defendant No. 2) sought to get himself impleaded as appellant, as a third party, in these two appeals numbered as Civil Appeal No. 666/85 and 702/85. His prayers in both appeals came to be rejected by the District Court, Pune.
4. Being aggrieved by the aforesaid orders of rejection, he preferred revision petition before this Court; being Civil Revision Application No. 678 of 1989, which was heard and allowed by S.M. Daud, J. (as he then was), by an order dated 7th November, 1989. The impleadment of Mr. Parvez Nekoo, the present petitioner, as a party to the appeals, upon his statement agreeing to be bound by the result of two appeals was allowed. Relevant part of the order passed by Daud, J., read as under:
"The petitioner wants to be impleaded as an appellant in the two appeals being Civil Appeal No. 666 of 702 of 1985 pending in the District Court at Pune. He agrees to be bound by the result in the 2 appeals and not claim any right to lead additional evidence etc. etc. Next the suit instituted by him would to some extent depend on the result of the 2 appeals. Until the decision of the 2 appeals, the hearing of that suit being Regular Civil Suit No. 177 of 1989 as also the counter suit i.e. Regular Civil Suit No. 121 of 1989 is stayed. These reliefs will save multiplicity of proceedings ensuring saving of time and costs for all concerned. I, therefore, allow the revision and make the rule absolute as per the above terms. Costs in this Court to abide the result in the appeals." (Emphasis supplied)
The petitioner on the aforesaid terms got himself impleaded in one of the Civil Appeal Bearing No. 666 of 1985 as appellant No. 3, but he failed to get himself impleaded in another appeal bearing Civil Appeal No. 702/85.
5. The then 4th Additional District Judge, Pune, vide order dated 23rd April, 1991, after hearing parties to the appeals, was pleased to dismiss both appeals, and granted time to the appellant i.e. original defendant No. 1 to vacate the suit premises.
6. Being aggrieved by the aforesaid judgment and order, Mr. Parvez Rustom Nekoo, petit
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