IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.887 of 2009 Sukni Devi wife of late Jagannath Singh resident of village- Telthua P. S.- Rafiganj, District Aurangabad. … Petitioner- Appellant Versus 1. The State of Bihar 2. Gupteshwar Singh 3. Bimlesh Singh Both sons of late Bhola Singh both residents of village- Telthua P. O. Pogar P.S.- Rafiganj, District Aurangabad. 4. Shanti Devi d/o late Bhola Singh w/o Ramchandra Singh 5. Kanti Devi d/o late Bhola Singh w/o Ambika Singh Both residents of village- Barachaita, P.S. Muffasil District- Gaya 6. Gyanti Devi d/o late Bhola Singh w/o Ravindra Singh @ Bam Singh Resident of village + P. O+ P.S. Judawanpur, District- Vaishali 7. Joint Director, Chakhandi Gaya 8. Deputy Director, Chakbandi (State Planning), Gaya 9. The Consolidation Officer, Rafiganj, Gaya. … Respondents. ----------- For the appellant : Mrs. Susmita Mishra, Adv. For the State : Mr. Manu Shankar Mishra, G.P. X : Mr. Suresh Mishra, AC to G.P. X For the respondents : Mr. Surendra Kumar Singh, Sr. Adv. : Mr. Praveen Prakash, Adv. 3. 25-01-2010 . I.A. No. 4154 of 2009 Heard counsel for the parties. The delay of 10 days in filing this appeal, for the reasons mentioned in the application is hereby condoned. I. A. No. 4154 of 2009 is accordingly allowed. 2 L. P. A. No. 887 of 2009 Having condoned the delay in filing of the appeal, with the consent of counsel for the parties, we have also heard them on merits of the appeal. By the impugned order the learned single Judge has refused to restore the writ application, CWJC No. 5739 of 1988 which was dismissed by an order dated 29.1.2007 for default. Counsel for the appellant submits that the said writ application, CWJC No. 5739 of 1988 was filed on 14.8.1988 and was admitted on 8.9.1988 for final hearing and was dismissed after 19 years at the stage of final hearing only on account of non-appearance of counsel for the appellant writ petitioner on 29.1.2007. Counsel further submits that in the restoration application which was filed on 17.5.2007 it was clearly stated by the appellant that the earlier counsel engaged by her in the year 1988 for conducting the case, namely, Mr. Kedar Nath Lal had communicated to the appellant to make an alternative arrangement on account of his illness owing due to loss of his eye sight he was no longer in a position to conduct hearing of the case. The appellant thus had taken a plea that on receipt of the said letter of her counsel she had also made an alternative 3 arrangement but then from an enquiry made by the newly engaged counsel it had transpired that the writ petition had been already been dismissed for default and thus steps were taken for filing of restoration petition in question which was filed on 29.5.2007 wherein with all other parties even the Respondent no. 5 was as opposite party no. 5. It however appears that the respondent no. 5 to the writ application had died on 19.11.1996 but was not substituted in the pending writ application and consequently after the dismissal of the writ application for default when the petitioner had filed the restoration application, the impleadment of a dead person i.e. respondent no. 5 in MJC No. 1205 of 2007 was sought to be explained by the appellant in a separate substitution petition I.A. No. 1592 of 2009 filed on 6.3.2009 by taking a plea that she could actually acquire knowledge of the death of the Respondent no. 5 when steps were taken for service of notice of respondent no. 5 in the restoration application, MJC No. 1205 of 2007 and that it was by office notes dated 14.1.2009 of this Court that the fact with regard to death of respondent no. 5 was brought to the notice of counsel for the appellant appearing in restoration application, MJC No. 1205 of 2007 on 2.2.2009 when this Court 4 had granted six weeks time for filing of the substitution petition. Thus in the application for substitution filed on 6.3.2009 vide I. A. No. 1592 of 2009 for substitution of respondent no. 5 of C.W.J.C. No. 5739 of 1988 for deleting his name and substituting his known legal heirs i.e. respondent no. 2 to 6 of this appeal the appellant claimed the date of knowledge of the death of Respondent no. 5 sometime in March 2009 through her counsel. The substituted heirs on issue of notice in the restoration application had appeared to oppose such prayer and had taken a plea that respondent no. 5 had actually died on 29.8.1993 and not on 16.11.1996 and as such the substitution petition filed after such a long delay should not be allowed specially when the appellant writ petitioner and respondent no. 5 were not only related but were resident of the same village. The learned Single Judge had accepted such submissions of Respondent no. 2 to 6 and had proceeded to reject the substitution petition, I. A. No. 1592 of 2009 as also dismiss M.J.C. No. 1205 of 2007 only on the ground of belated prayer for substitution of Respondent no. 5 in the restoration application. Mrs. Susmita Mishra, learned counsel for the appellant 5 has submitted that strictly speaking the provisions of Code of Civil Procedure as with regard to abatement of a suit in terms of order 22 of the Code of Civil Procedure can not be made applicable in a proceeding arising out of Article 226 of the Constitution of India and that the learned Single Judge ought to have taken into account that the appellant writ petitioner, a rustic widow aged about 70 years hailing from rural area, was not aware of the requirement of law regarding substitution and infact had come to know of the death of Respondent no. 5 only sometime in March 2009 through her counsel. In this context, she has placed reliance on the judgment of Apex Court in the case of Ram Sumiran and Ors vs. D.D.C. and others, reported in AIR 1985 SC 606. Counsel for the private respondents 2 to 6 being the heirs and legal representative of respondent no. 5, on the other hand, while supporting the impugned order of the learned Single Judge has submitted that even if the appellant was a widow, as it was she who had filed a writ petition in this Court and as such it was her duty to get the substitution of respondent no. 5 made in time in the writ petition and since that was not done during the pendency of writ petition, any application filed for substitution of 6 heirs of respondent no. 5 in the restoration application, MJC No. 1205 of 2007 could not have cured such fatal defects. In the opinion of this Court, the prayer of the appellant in MJC No. 1205 of 2007 was limited to restore CWJC No. 5739 of 1988 which as stated above was listed for hearing after almost 19 years of its being admitted in the year 1988. At that point of time, when the case got dismissed for default due to ailment of counsel for the petitioner namely Sri Kedar Nath Lal, Advocate, who was said to be suffering from an incurable eye disease, the appellant could not be blamed for her such ill luck. There is also nothing conclusive on record to prove that the appellant was aware of the death of Respondent no. 5 of the writ petition in the year 1993 or 1996 and thus her plea, that she had acquired knowledge of the death of Respondent no. 5 during the pendency of the restoration application in March 2009 when she came come to know about the death of respondent no. 5 of writ petition only through her new counsel on the basis of the office notes of this Court in the restoration application, could not have been altogether disbelieved. However this aspect though clearly stated in the substitution petition, as with regard to acquiring knowledge of death of respondent no. 5 by the appellant through 7 her counsel on or after 2.2.2009 only when the notices were sent in the restoration matter and had returned back with the service report of the death of the Respondent no. 5, has not at all been considered by the learned Single Judge in the impugned order. Similarly no finding has been recorded even in respect of the illness and inability of the counsel for the appellant due to which the writ application had been dismissed for default. In that view of the matter, the delay in seeking substitution of Respondent no. 5 in the restoration application by itself could not have been held to be fatal as the appellant had clearly stated in such substitution petition that she came to know of such death of Respondent no. 5 only through communication sent by her counsel after 2.2.2009 regarding office notes dated 14.1.2009 of this Court reporting death of respondent no. 5. Thus the knowledge of the appellant as with regard to death of respondent no. 5, as asserted in the connected I. A. No. 1592 of 2009 being at best 2.2.2009 or thereafter when the said office notes dated 14.1.2009 was placed under the heading for orders for taking steps for substitution and the substitution petition was filed on 6.3.2009 i.e. well within 6 weeks as allowed by this Court in the order dated 2.2.2009 by itself had satisfactorily 8 explained the delay in filing of substitution petition in the restoration application. The plea of heirs of respondent no. 5, that respondent no. 5 and the petitioner-appellant were closely related and resident of the same village could hardly be of any avail inasmuch as they in their counter affidavit filed in substitution petition have neither stated as to the place of death of respondent no. 5 nor have given any evidence to show that the appellant had such knowledge of the death of Respondent no. 5. Moreover it has to be taken into account that the appellant is a rustic old widow aged about 70 years who can barely put her thumb impression as is clear from her vakalatnama filed in the writ petition on 27.7.1988. Added to it, this has to be also kept in mind that the respondent no. 5 Bhola Singh had already appeared in this Court in CWJC No. 5739 of 1988 by filing vakalatnama on 2.3.1989 and Sri Surendra Kumar Singh, Sri Kamala Prasad and Sri Anil Kumar Mishra were his advocates and thus if respondent no. 5 Bhola Singh had died during the pendency of the writ application, it was also the duty of their counsel to inform this court while the writ petition being CWJC No. 5739 of 1988 had remained pending before its being 9 dismissed for default on 29.1.2007. The heirs of respondent no. 5 therefore, if they take a plea of enforcing the provision of Order 22, Rule 4 of the Code of Civil Procedure for abatement of the writ petition they will also have to keep in mind the duty which had been cast upon their advocate to communicate to the court the death of respondent no. 5 in terms of O. 22, Rule 10(a) of the Code of Civil Procedure. Admittedly, no such information regarding the death of respondent no. 5 was ever given by the counsel in the pending writ petition and as such it cannot be said with a sense of certainty and conviction that the appellant had the definite knowledge of the death of respondent no. 5 on any earlier point of time and had still failed to take steps for substituting him either in the writ petition or in the resultant restoration application. In any event, the abatement of a writ petition on the ground of non-substitution of the contesting respondent dying during the pendency of writ petition cannot be made applicable ipso facto in terms of the provision of Code of Civil Procedure inasmuch as Section 141 of the Code of Civil Procedure itself makes it clear that the provisions of Code of Civil Procedure will not be applicable to any proceeding under Article 226 of the 10 Constitution of India and in fact this aspect has also been clarified by the Legislature itself by inserting an explanation in Section 141 by Code of Civil Procedure (Amendment Act) 1976. This court would also find that under similar circumstances the Apex Court in the case of Ram Sumiran (supra) in a proceeding arising out of Article 226 of the Constitution of India had allowed substitution after six years wherein it was held that:- “…… But merely because no application was made by the appellants for bringing the legal representatives of the deceased respondent no. 5 on record we do not think that in the circumstances of the present case that would be a valid ground for refusing to grant the application of the appellants for setting aside the abatement and bringing the legal representatives of the deceased respondent no. 5 on record because the appellants are admittedly from the rural area and in a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time……” In the considered opinion of this court, the aforementioned observations made by the Apex Court in the case of Ram Sumiran (supra) would also apply with full force in the present 11 case. Thus the ends of justice infact could been better subserved if the application for bringing the legal representative of the deceased respondent no. 5 had been allowed inasmuch as the reasons which were spelt out for the application seeking restoration of the writ application were not only bona fide but had also contained cogent grounds showing circumstances beyond control of appellant writ petitioner, an old lady aged about 70 years. As a matter of fact, after filing of the writ application and its being admitted in the year 1988 itself there was hardly any occasion for the appellant writ petitioner to keep track of further development of the case. This Court can also not ignore the plea of the appellant that she is a rustic old widow aged about 70 years and was residing at a far off place in village Telthua in the district of Aurangabad. This court is also of the view that an admitted writ petition kept pending for almost two decades after its being admitted cannot be thrown away on mere technicalities specially when the substantive rights of the appellant arising out consolidation proceeding affecting title of her land was to be adjudicated on merits in the writ application on a number of pleas including that of violation of principles of natural justice inasmuch as there is a specific complain of the 12 appellant writ petitioner that the impugned order in the writ application was passed by the Joint Director Consolidation even without issuing notice and/or affording any opportunity of hearing to her. Thus in the opinion of this court, the prayer made in I.A. No. 1592 of 2002 and MJC No. 1205 of 2007 are fit to be allowed and accordingly we direct for substitution of the heirs of Respondent no. 5 by the persons named in paragraph no. 6 of I. A. No. 1592 of 2009 i.e. respondent no. 2 to 6 of this appeal as also for restoration of CWJC No. 5739 of 1988 to its original file. With the aforesaid observations and directions this appeal is allowed and the impugned order is set aside. (Dipak Misra, CJ.) (Mihir Kumar Jha, J.) Kanchan