Puran Singh v. State of Punjab wherein this issue came up for consideration and Hon'ble

the writ petition as abated. 2 WRIA No. 2001460 of 2015

3. During hearing, a question arose as to whether a writ petition abates. In this context, we have perused the decision of Hon'ble the Supreme Court reported in 1996 (2) SCC 205; Puran Singh vs. State of Punjab wherein this issue came up for consideration and Hon'ble the Supreme Court opined that in view of the provisions of Section 141 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC, 1908') the provisions of Order XXII CPC, 1908 would not apply to writ proceedings but it does not mean that a writ petition can continue against a dead person, therefore, the law was crystallized and harmonized by Hon'ble the Supreme Court to the effect that though the provisions of Order XXII of CPC, 1908 did not apply to writ proceedings the consequences of it would be that there would be no automatic abatement of a writ proceedings in terms of the provisions contained in Order XXII of CPC, 1908 but writ proceedings cannot continue against a dead person for the reasons which are quite obvious and have been detailed in the said judgment. It was provided if such an application for substitution of heirs/representatives of the deceased party is filed in writ proceedings within a reasonable time then that can be considered by the Court. The Court, however, put in a caveat that it will be unreasonable on part of the Court implead legal heirs/representatives of the deceased respondent after lapse of several months or years and then to direct them to contest the claim of the petitioner merely on the ground that after the death of the original respondent, the right, title or interest of such respondent has devolved on them. We may in this context refer to relevant extract of aforesaid judgment in the case of Puran Singh (supra) which reads as under:- "11. As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the 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. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of holding as to what shall be reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased 3 WRIA No. 2001460 of 2015 defendant or the 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 circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative. This power has to be exercised on well known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be. At the same time the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final."

4. We have also perused Rule 38-A under the heading Section P- Miscellaneous which is a part of Chapter VIII of the Allahabad High Court Rules 1952 (hereinafter referred to as 'Rules, 1952') which reads as under:- "[38-A :- Adjustment of appeals, petitions and references etc. The provisions contained in Rules 1 to 6 and 9 of Order XXII and in Order XXXII of the Code of Civil Procedure shall, so far as may be and with necessary modifications and adaptations, apply to special appeals, writ petitions under Article 226 of the Constitution and Tax Acts references [and revisions] falling under Chapter IX, XXII and XXVII of these rules.]"

5. This provision was inserted vide notification No.310/VIII-C169 dated

03.08.1964 which was published in the Gazette of Uttar Pradesh Part-2 on

05.12.1964, however, thereafter, CPC, 1908 has been amended and an explanation has been added to Section 141 vide Section 47 of the Act 104 of 1976 which came into force with effect 01.02.1977. By the said amendment, the words 'Proceedings' occurring in Section 141 of CPC, 1908 has been explained to include 'Proceedings' under Order IX of CPC, 1908 but with a further clarification that it does not include any proceedings under Article 226 of the Constitution of India. Apparently, Rule 38-A contained in Chapter VIII of the Rules, 1952 made by this High Court was inserted prior to the said amendment. We in this context may refer to Article 225 of the Constitution of India under which the Rules, 1952 have been framed. The said provision reads as under:- "225. Jurisdiction of existing High Courts 4 WRIA No. 2001460 of 2015 Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution: Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction."

6. The said Rules, 1952 framed by the Allahabad High Court in 1952 as amended from time to time are subject to the provisions of the Constitution of India and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislature by the Constitution of India. The CPC, 1908 though it is a Pre-Independence legislation, any amendment to it subsequently falls within the concurrent list and, therefore, the Union Parliament as also the State Legislature can amend it. In this case the explanation was inserted by an Act of the Central Legislation, which was competent to do so, therefore, the Rule is in conflict with the explanation to Section 141 CPC, 1908. Limitation Act, 1963 does not apply to writ proceedings a preposition which is so well settled that no further elaboration is required. Even if principles contained in Order XXII read with Section 120 and 121 of Limitation Act are applied based on Rule 38-A contained in Chapter VIII of the Rules, 1952, this writ petition stands abated long back as the period of 90 days prescribed from the date of death expired on 11.03.2021 and further period of 90 days' also expired long back but till date no application for substitution or setting aside abatement has been filed by the petitioners- State, although, we do not apply the said provisions or principles contained therein, rather, we rely on explanation to Section 141 CPC, 1908 and the law declared by Hon'ble Supreme Court in Puran Singh (supra).

7. When we consider the issues in the light of the law elucidated by 5 WRIA No. 2001460 of 2015 Hon'ble the Supreme Court, as aforesaid, we find that in this case till date no application for substitution has been filed by the petitioners-State although information about death of the opposite party No.1 was given to them way back in 2021 and in fact they responded to the said information vide letter dated 26.02.2021, in spite of it, they have not bothered to file an application for substitution of legal heirs/representatives of the opposite party No.1.

8. Considering the lapse of more than 4 and half years from the date of information referred hereinabove and also considering the fact that even today there is no such application for substitution. We do not see as to how we can allow these proceedings to continue any further. We, accordingly, dismiss this writ petition for non substitution of the legal heirs/representatives of the opposite party No.1. (Manjive Shukla, J.) (Rajan Roy, J.) Order Date :- 20.8.2025 -Piyush- PIYUSH YADAV High Court of Judicature at Allahabad, Lucknow Bench

the writ petition as abated. 2 WRIA No. 2001460 of 2015

3. During hearing, a question arose as to whether a writ petition abates. In this context, we have perused the decision of Hon'ble the Supreme Court reported in 1996 (2) SCC 205; Puran Singh vs. State of Punjab wherein this issue came up for consideration and Hon'ble the Supreme Court opined that in view of the provisions of Section 141 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC, 1908') the provisions of Order XXII CPC, 1908 would not apply to writ proceedings but it does not mean that a writ petition can continue against a dead person, therefore, the law was crystallized and harmonized by Hon'ble the Supreme Court to the effect that though the provisions of Order XXII of CPC, 1908 did not apply to writ proceedings the consequences of it would be that there would be no automatic abatement of a writ proceedings in terms of the provisions contained in Order XXII of CPC, 1908 but writ proceedings cannot continue against a dead person for the reasons which are quite obvious and have been detailed in the said judgment. It was provided if such an application for substitution of heirs/representatives of the deceased party is filed in writ proceedings within a reasonable time then that can be considered by the Court. The Court, however, put in a caveat that it will be unreasonable on part of the Court implead legal heirs/representatives of the deceased respondent after lapse of several months or years and then to direct them to contest the claim of the petitioner merely on the ground that after the death of the original respondent, the right, title or interest of such respondent has devolved on them. We may in this context refer to relevant extract of aforesaid judgment in the case of Puran Singh (supra) which reads as under:- "11. As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the 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. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of holding as to what shall be reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased 3 WRIA No. 2001460 of 2015 defendant or the 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 circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative. This power has to be exercised on well known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be. At the same time the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final."

4. We have also perused Rule 38-A under the heading Section P- Miscellaneous which is a part of Chapter VIII of the Allahabad High Court Rules 1952 (hereinafter referred to as 'Rules, 1952') which reads as under:- "[38-A :- Adjustment of appeals, petitions and references etc. The provisions contained in Rules 1 to 6 and 9 of Order XXII and in Order XXXII of the Code of Civil Procedure shall, so far as may be and with necessary modifications and adaptations, apply to special appeals, writ petitions under Article 226 of the Constitution and Tax Acts references [and revisions] falling under Chapter IX, XXII and XXVII of these rules.]"

5. This provision was inserted vide notification No.310/VIII-C169 dated

03.08.1964 which was published in the Gazette of Uttar Pradesh Part-2 on

05.12.1964, however, thereafter, CPC, 1908 has been amended and an explanation has been added to Section 141 vide Section 47 of the Act 104 of 1976 which came into force with effect 01.02.1977. By the said amendment, the words 'Proceedings' occurring in Section 141 of CPC, 1908 has been explained to include 'Proceedings' under Order IX of CPC, 1908 but with a further clarification that it does not include any proceedings under Article 226 of the Constitution of India. Apparently, Rule 38-A contained in Chapter VIII of the Rules, 1952 made by this High Court was inserted prior to the said amendment. We in this context may refer to Article 225 of the Constitution of India under which the Rules, 1952 have been framed. The said provision reads as under:- "225. Jurisdiction of existing High Courts 4 WRIA No. 2001460 of 2015 Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution: Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction."

6. The said Rules, 1952 framed by the Allahabad High Court in 1952 as amended from time to time are subject to the provisions of the Constitution of India and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislature by the Constitution of India. The CPC, 1908 though it is a Pre-Independence legislation, any amendment to it subsequently falls within the concurrent list and, therefore, the Union Parliament as also the State Legislature can amend it. In this case the explanation was inserted by an Act of the Central Legislation, which was competent to do so, therefore, the Rule is in conflict with the explanation to Section 141 CPC, 1908. Limitation Act, 1963 does not apply to writ proceedings a preposition which is so well settled that no further elaboration is required. Even if principles contained in Order XXII read with Section 120 and 121 of Limitation Act are applied based on Rule 38-A contained in Chapter VIII of the Rules, 1952, this writ petition stands abated long back as the period of 90 days prescribed from the date of death expired on 11.03.2021 and further period of 90 days' also expired long back but till date no application for substitution or setting aside abatement has been filed by the petitioners- State, although, we do not apply the said provisions or principles contained therein, rather, we rely on explanation to Section 141 CPC, 1908 and the law declared by Hon'ble Supreme Court in Puran Singh (supra).

7. When we consider the issues in the light of the law elucidated by 5 WRIA No. 2001460 of 2015 Hon'ble the Supreme Court, as aforesaid, we find that in this case till date no application for substitution has been filed by the petitioners-State although information about death of the opposite party No.1 was given to them way back in 2021 and in fact they responded to the said information vide letter dated 26.02.2021, in spite of it, they have not bothered to file an application for substitution of legal heirs/representatives of the opposite party No.1.

8. Considering the lapse of more than 4 and half years from the date of information referred hereinabove and also considering the fact that even today there is no such application for substitution. We do not see as to how we can allow these proceedings to continue any further. We, accordingly, dismiss this writ petition for non substitution of the legal heirs/representatives of the opposite party No.1. (Manjive Shukla, J.) (Rajan Roy, J.) Order Date :- 20.8.2025 -Piyush- PIYUSH YADAV High Court of Judicature at Allahabad, Lucknow Bench