However, the issue under controversy is not whether its (CPC)application should be waived, rather whether it applies or not, the Court said.
Single Bench of the Patna High Court has referred to Division Bench, the question whether procedure prescribed in Code of Civil Procedure would apply to the petition under Article 227 of the Constitution of India, whenever matter is against the order passed by Civil Court.
The issue arose while considering Interlocutory Application filed by sons of petitioners (who died about two years ago) in a petition under Article 227 of the Constitution for the purpose of substitution. Their contention was that, writ is a constitutional power inherently possesses by the High Court for efficacious remedy.
They further contended, relying on Harakh Nath Singh V. Lodha Singh reported in 1978 P.L.J.R. 659 (D.B), that, Article 120, 121 of the Limitation Act which governs the event of substitution in terms of Order 22 of the CPC is not applicable to a Petition under Article 227 of the Constitution of India.
Justice Aditya Kumar Trivedi observed “Even as held above procedural law should not be allowed to interfere while dispensing with justice. However, the issue under controversy is not whether its application should be waived, rather whether it applies or not. Once found, then may be waived in individual facts and circumstances of the case, more particularly, when the matter is taken up suo motu. No prayer has been made on behalf of petitioner to condone the delay. At the other end, as enumerated in foregoing paragraph, it happens to be consistent plea that Article 120, 121 of the Limitation Act is not applicable which governs the event of substitution in terms of Order 22 of the CPC, and further having the issue untouched uptil now, as no specific judicial pronouncement of this High Court has been traced, and further, taking into account the case law referred by the learned counsel for the petitioner referred in 1978 PLJR 659 (D.B) as well as considering the nature of controversy to be of great importance, needs authoritative decision and for that the matter in hand is being referred to the Division Bench and for that following questionnaires are formulated.”
Following questions have been referred to Division Bench
Whether Article 120, 121 of the Limitation will be applicable while considering substitution relating to petition under Article 227 of the Constitution?
Read the Judgment here.