Article 226 of the Constitution of India and Civil Procedure Code. A Perspective.

When the High Court exercises extraordinary jurisdiction under Art. 226 to the Constitution, it aims at securing a very speedy and efficacious remedy to a person, whose legal or constitutional right has been infringed. If all the elaborate and technical rules laid down in the Civil Procedure Code are to be applied to writ proceedings the very object and purpose is likely to be defeated. In view of the conflicting opinions expressed by the different courts, Parliament by the aforesaid amending Act introduced the explanation saying that in s. 141 of the Code the expression "proceedings" does not include "any proceedings under Art. 226 of the Constitution" and statutorily recognized the views expressed by some of the Courts that writ proceedings under Art. 226 of the Constitution shall not be deemed to be proceedings within the meaning of s. 141 of the Code. After the introduction of the explanation to s. 141 of the Code, it can be said that when s. 141 provides that the procedure prescribed in the Code in regard to suits shall be followed, as far as it can be made applicable "in all proceedings in any Court of civil jurisdiction" it shall not include a proceeding under Art. 226 of the Constitution. In this background, it cannot be held that the provisions contained in Or. 22 of the Code are applicable per se to writ proceedings (If) The procedures prescribed in respect of suit in the Code if are made applicable to the writ proceedings then in many cases it may frustrate the exercise of extraordinary powers by the High Court under Arts. 226 and 227 of the Constitution. Sec. 141 of the Code even in respect of other proceedings contemplates that the procedure provided in the Code in regard to suits shall be followed "as far as it can be made applicable". Rule 32 of Writ Rules of Punjab and Haryana does not specifically make provisions Code applicable to petitions under Art. 226 and 227 of the Constitution. It simple says that in matters for which no provision has been made by those rules, the provisions of the Code shall apply mutatis mutandis insofar as they are not inconsistent with those rules. When the Constitution has vested extraordinary power in the High Court under Arts. 226 and 227 to issue any order, writ or direction and the power of superintendence over all Courts and Tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Arts. 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well-recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious. Conclusion It shall be open to make applicable the procedure provided in the Code to any proceedings in any Court of civil jurisdiction except to proceedings under Art. 226 of the Constitution. If the right of the petitioner to pursue the remedy survives even after the death of the original respondent to the writ petition, then on the same principle even the right to contest that claim survives on the part of the legal representative of the deceased respondent. In such a situation, after the death of the respondent if the right to sue survives against the legal representative of respondent, then the petitioner has to substitute the legal representative of such respondent before the writ petition can proceed and can be heard and disposed of. The petitioner has to take steps for substitution of legal representative within a reasonable time. It need not be impressed that it will be unreasonable on the part of the Court to implead the legal representative 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 the interest of such respondent has devolved on them. 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 a reasonable time, the High Court may take note of the period prescribed under Art. 120 of the Limitation Act for substituting the heirs of the deceased 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. 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 a reasonable time, the High Court may take note of the period prescribed under Art. 120 of the Limitation Act for substituting the heirs of the deceased 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.