# Arun Kumar Kedia Revisionist v. Harvansh Lal Matanheliya

- **Citation:** Civil Revision No. 35 of 2012
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-23
- **Case number:** Civil Revision No. 35 of 2012
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-kedia-revisionist-v-harvansh-lal-matanheliya-46312
- **Pages:** 6

## Headnote

Civil Law- U.P. Provincial Small Causes
Courts Act, 1887-Limitation Act, 1963-SCC
Revision
u/s
25-application
for
substitution-beyond limitation-Article 121
of Act, 1963-not applicable-as it applies to
Appeal or suit-not revision-Article 137 of
Act, 1963 applicable-limitation -3 yearsApplication within time-Revision allowed.
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, Now on the analogy of the ratio laid
down by the Full Bench decision even if the
provisions of Order XXII CPC do not apply to
revisional proceedings such as an SCC
Revision under Section 25 of the Act, 1887,
inspite of Section 17 thereof, an order cannot
be passed against a dead person, therefore,
the legal representatives of a dead party have
to be brought on record. Now, as the revision
at hand is neither a suit nor an appeal, Article
121 of the Schedule to the Act, 1963 would
not apply as the said Article would apply to an
application to have the legal representative of
a deceased plaintiff or appellant or of a
deceased defendant or respondent to be
made a party in a suit or appeal under the
Code of Civil Procedure, 1908 which is not
attracted
herein.
Therefore,
in
these
circumstances on the analogy of the Full
Bench decision in Chandradeo Pandey, as this
revision under Section 25 of the Act, 1887 is
before the High Court, it is Article 137 of the
Act, 1963 which applies and the limitation in
such circumstances for filing the application
for substitution in an SCC revision under
Section 25 of the Act, 1887 would be 3
years.(para 8) (E-9)

Cases cited:

## Text

3-5 All. Arun Kumar Kedia Vs. Harvansh Lal Matanheliya
1247
Ibrahim Amin (supra) and distinguished
the same. Paras 14 & 19 of the aforesaid
judgment are being reproduced herein
below:-

"14. The view in Asger Ibrahim
Amin was disapproved and the court held
that the provisions providing for voluntary
retirement would not apply retrospectively
by implication. In this view, where an
employee has resigned from service, there
arises no question of whether he has in fact
?voluntarily retired? or ?resigned?. The
decision to resign is materially distinct
from
a
decision
to
seek
voluntary
retirement. The decision to resign results in
the legal consequences that flow from a
resignation
under
the
applicable
provisions. These consequences are distinct
from the consequences flowing from
voluntary retirement and the two may not
be substituted for each other based on the
length of an employee's tenure.

19. On the issue of whether the
first respondent has served twenty years,
we are of the opinion that the question is of
no legal consequence to the present
dispute. Even if the first respondent had
served twenty years, under Rule 26 of the
CCS Pension Rules his past service stands
forfeited
upon
resignation.
The
first
respondent is therefore not entitled to
pensionary benefits."

10. Having heard learned counsel for
the parties and perused the relevant
material available on record as well as the
aforesaid dictums of the Hon'ble Apex
Court, I am of the considered opinion that
since the resignation may not be treated at
par with the other mode of dispensing with
the
service
including
the
voluntary
retirement, therefore the petitioner shall not
be entitled to the pensionary benefits.
Further, the petitioner has tendered his
resignation
to
avoid
the
disciplinary
proceedings as instead of submitting his
defence reply to the charge sheet, he
tendered his resignation, therefore the
intent of the resignation is not appreciated.
The reasons so given in the impugned order
are appropriate and correct law of the
Hon'ble Apex Court has been cited while
rejecting the claim of the petitioner vide
impugned order dated 20.9.2019.

11. Accordingly, the writ petition is
devoid of merit, the same is dismissed
being misconceived.

12. No order as to costs.
----------

(2020)03-05ILR A1247
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.04.2020

BEFORE

THE HON'BLE RAJAN ROY, J.

Civil Revision No. 35 of 2012

Arun Kumar Kedia ...Revisionist
Versus
Harvansh Lal Matanheliya...Opposite Party

Counsel for the Revisionist:
Shafiq Mirza

Counsel for the Opposite Party:
G. Haider, M.A. Siddiqui, Rajeiu Kumar
Tripathi

Civil Law- U.P. Provincial Small Causes
Courts Act, 1887-Limitation Act, 1963-SCC
Revision
u/s
25-application
for
substitution-beyond limitation-Article 121
of Act, 1963-not applicable-as it applies to
Appeal or suit-not revision-Article 137 of
Act, 1963 applicable-limitation -3 yearsApplication within time-Revision allowed.
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, Now on the analogy of the ratio laid
down by the Full Bench decision even if the
provisions of Order XXII CPC do not apply to
revisional proceedings such as an SCC
Revision under Section 25 of the Act, 1887,
inspite of Section 17 thereof, an order cannot
be passed against a dead person, therefore,
the legal representatives of a dead party have
to be brought on record. Now, as the revision
at hand is neither a suit nor an appeal, Article
121 of the Schedule to the Act, 1963 would
not apply as the said Article would apply to an
application to have the legal representative of
a deceased plaintiff or appellant or of a
deceased defendant or respondent to be
made a party in a suit or appeal under the
Code of Civil Procedure, 1908 which is not
attracted
herein.
Therefore,
in
these
circumstances on the analogy of the Full
Bench decision in Chandradeo Pandey, as this
revision under Section 25 of the Act, 1887 is
before the High Court, it is Article 137 of the
Act, 1963 which applies and the limitation in
such circumstances for filing the application
for substitution in an SCC revision under
Section 25 of the Act, 1887 would be 3
years.(para 8) (E-9)

Cases cited:

1. Mohd. Sadat Ali Khan Vs. The Administrator,
Corporation of City of Lahore, AIR 1949 Lahore
186

2. Ram Datt Singh & anr. Vs. Ajodhia Singh &
ors., AIR 1952 Allahabad 446

3. Khuda Bux Khan vs. Maha Nand Tewari &
anr. AIR 1948 Oudh 84

4. U.O.I., Ministry of Commerce and Industry,
Govt. of India vs. Seth Shanti Sarup & ors., AIR
1966 Allahabad 530

5. Baksho & anr. Vs. Piaro & ors., AIR 1920 Sind
120

6. Surat and others versus Bhragunath Upadhya
& ors., 1989 RD 298

7. Chandradev Pandey & ors.Vs. Sukhdev Rai &
ors., AIR 1972 Allahabad 504
(Delivered by Hon'ble Rajan Roy, J.)

1. In this SCC revision, under Section
25 of the U.P. Provincial Small Causes
Courts Act, 1887 (herein after referred as
Act, 1887), an application for substitution
has been filed by the revisionist to which
an objection has been raised by Shri Rajeev
Kumar Tripathi, learned counsel for the
opposite party that it is beyond the period
of limitation prescribed under Article 121
of the Limitation Act, 1963. On being
confronted
learned
counsel
for
the
revisionist submitted that Article 121 of the
Act, 1963 does not apply to the case at
hand as it is a revision and in view of the
full bench decision of this Court reported in
AIR 1972 Allahabad 504, Chandradev
Pandey and others Vs. Sukhdev Rai and
others, Article 137 of the Act, 1963 is
applicable, according to which, the period
of limitation is 3 years, therefore, the
application for substitution, considering the
date of death, is within the prescribed
period of limitation.

2. The Provincial Small Causes
Courts Act, 1887 is a pre-constitution Act
which continues to be in force. The
revision at hand has been filed under
Section 25 of the said Act, 1887. Section
17 of the Act deals with application of the
Code of Civil Procedure to the Court of
small causes and in all proceedings arising
out of the suits before it, which would
include a revision under Section 25.
According to Sub-section 1 of Section 17,
the procedure prescribed in the Code of
Civil Procedure, 1908 shall save in so far as
is otherwise provided by that Code or by
this Act be the procedure followed in a
Court of small causes in all suits cognizible
by it and in all proceedings arising out of
such suits. The proviso to the said Subsection is not relevant. A Reference may be
3-5 All. Arun Kumar Kedia Vs. Harvansh Lal Matanheliya
1249
made in this regard to Section 7 of the
Code of Civil Procedure, 1908 which reads
as under:-

"7.
Provincial
Small
Cause
Courts.- The following provisions shall not
extend to Courts constituted under the
Provincial Small Cause Courts Act, 1887
(9 of 1887). [or under the Berar small
Cause Courts Law, 1905], or to Courts
exercising the jurisdiction of a Court of
Small Causes [under the said Act or Law],
[or to Courts in [any part of India to which
the said Act does not extend] exercising a
corresponding jurisdiction] that is to say, -

(a) so much of the body of the
Code as relates to-

(i)
suits
excepted
from
the
cognizance of a Court of Small Causes;

(ii) the execution of decrees in
such suits;

(iii) the execution of decrees
against immovable property; and

(b) the following sections, that is
to say,-

Section 9,

Sections 91 and 92,

Sections 94 and 95 [so far as they
authorise or relate to-

(i) orders for the attachment of
immovable property,

(ii) injunctions,

(iii) the appointment of a receiver
of immovable property, or

(iv)
the
interlocutory
orders
referred to in clause (e) of Section 94], and
Sections 96 to 112 and 115."

3. Thus Section 7 prescribes the
provisions of CPC which do not extend to
the Courts constituted under the Act, 1887.
The said provision does not mention Order
XXII CPC which relates to substitution of
legal representatives in the case of death of
plaintiff, defendant etc. Now reference may
be made to Order 50 CPC which reads as
under in its application in the State of
U.P.:-

"1.
Provincial
Small
Cause
Courts.-
The
provisions
hereinafter
specified shall not extend to Courts
constituted under the Provincial Small
Cause Courts Act, 1887 )9 of 1887), [or
under the Berar Small Cause Courts Law,
1905]
or
to
Courts
exercising
the
jurisdiction of a Court of Small Causes
[under the said Act or Law], or to Courts
exercising the jurisdiction of a Court of
Small causes in [under the said Act or
Law], [or to Courts in [any part of India to
which the said Act does not extend]
exercising a corresponding jurisdiction]
that is to say-

(a) so much of this schedule as
relates to-

(i)
suits
excepted
from
the
cognizance of a Court of Small Causes or
the execution of decrees in such suits;

(ii) the execution of decrees
against immovable property or the interest
of a partner in partnership property;

(iii) the settlement of issues; and

(b) the following rules and
orders:-

Order II, Rule 1 (frame of suit);

Order X, Rule 3 (record of
examination of parties);

Order XV, except so much of Rule
4 as provides for the pronouncement at
once of judgment and Rule 5;

Order XVIII, Rules 5 to 12
(evidence);

Orders XLI to XLV (appeals);

Orders XLVII, Rules 2, 3, 5, 6, 7
(review);

Order LI."

4. A reading of the aforesaid
provision shows that it mentions the
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of CPC which shall not extend
to the Courts under the Act, 1887 and it
does not include Order XXII CPC as
referred herein above. However, the case at
hand is a revision and not a suit nor an
appeal and it has been the consistent view
that Order XXII Rule 2 to 10(a) applies to
suits and by virtue of Rule 11 thereof to
appeals but these provisions do not apply to
a revision under Section 115 CPC as the
word revision has not been used therein and
it is distinct from a suit or appeal under the
CPC. A reference may be made in this
regard to the Full Bench decision reported
in Mohd. Sadat Ali Khan Vs. The
Administrator, Corporation of City of
Lahore, AIR 1949 Lahore 186; as also
other decisions reported in Ram Datt Singh
and another Vs. Ajodhia Singh and others,
AIR 1952 Allahabad 446; Khuda Bux
Khan vs. Maha Nand Tewari and Anr., AIR
1948 Oudh 84; The Union of India,
Ministry of Commerce and Industry,
Government of India vs. Seth Shanti Sarup
and others, AIR 1966 Allahabad 530;
Baksho and another Vs. Piaro and others,
AIR 1920 Sind 120; and another Full
Bench decision in the case of Chandradeo
Pandey (supra). In fact, the Full Bench in
Chandradeo Pandey, after coming to the
conclusion that the provisions of Order
XXII do not apply to revisions also
considered the question whether any period
of limitation has been prescribed in the
Code of Civil Procedure for an application
to bring the heirs of a deceased party on
record in a revision application? After
considering the relevant provisions, Full
Bench opined that Article 137 of the
Schedule contained in the Act, 1963 was
applicable to such applications in revisional
proceedings under Section 115 CPC which
prescribed a limitation of 3 years from the
date the right to apply accrues. Having held
as above the Full Bench also expressed its
opinion about the desirability of requisite
amendment in the Rules of the Code on the
administrative side so as to prescribe a
uniform period of limitation of 90 days for
bringing heirs of a deceased party on record
even in revision applications.

5. As regards the reliance placed by
Shri Tripathi upon the decision of the
Supreme Court in Shankar Ramchandra
Abhyankar's (supra) case, in the said case
the Supreme Court observed that when the
aid of the High Court is invoked on the
revisional side it is done because it is a
superior Court and it can interfere for the
purpose of rectifying the error of the Court
below. Section 115 of the Code of Civil
Procedure circumscribes the limits of that
jurisdiction but the jurisdiction which is
being exercised is a part of the general
appellate jurisdiction of the High Court as a
superior Court and it is only one of the
modes of exercising power conferred by
the statute; basically and fundamentally it
is the appellate jurisdiction of the High
Court which is being invoked and exercised
in a wider and larger sense. It did so in the
context as to whether the judgment of this
Subordinate Court would merge in an order
passed by the High Court on the revisional
side and therefore it went on to hold that it
did not therefore consider that the principle
of merger of order of inferior Courts in
those of superior Courts would be affected
or would become inapplicable by making a
distinction between a petition for revision
and an appeal. The question being
considered by the Supreme Court was as to
whether after the revision under Section
115 CPC against the order of the
subordinate Court had been dismissed a
writ petition challenging the said order of
the subordinate Court should have been
entertained. It went on to opine that even if
the order of the appellate Court had not
3-5 All. Arun Kumar Kedia Vs. Harvansh Lal Matanheliya
1251
merged in the order of the single Judge
passed in exercise of revisional powers
under Section 115 it was of the view that a
writ petition ought not to have been
entertained by the High Court when the
respondent had already chosen the remedy
under Section 115 of the Code of Civil
Procedure. The context in which the said
observations have been made was very
different than the context which presents
itself before this Court in this case and
which was present before the Full Bench in
the case of Chandradeo Pandey. Although
the term appeal has not been defined in the
Code of Civil Procedure there can be no
doubt on a reading of Order XXII CPC that
the words suit and appeal have been
specifically and categorically used therein
and the provisions of Rule 2 to 10(a) of
Order XXII have been specifically made
applicable to appeals vide Rule 11 which is
obviously a reference to the appeals
prescribed under the Code of Civil
Procedure. The appeals under the Code of
Civil Procedure are prescribed under
different Sections and Orders viz-a-viz
revisions.

6. A Single Judge Bench of this Court
had
the
occasion
to
consider
the
applicability of Order XXII CPC to
proceedings other than suits and appeals in
the case of Surat and others versus
Bhragunath Upadhya and others, 1989 RD
298 and it opined as under:-

"Order XXII admittedly by the
use of the language was made applicable to
the suits or original proceedings but by
virtue of Order XXII, Rule 11 it was made
applicable to appeals. It is significant while
under rule 11 the provisions of Order XXII
has been made applicable to the appeals it
was not made applicable either to revision
or other miscellaneous proceedings. If
Order
XXII
was
applicable
to
all
proceedings referred to in section 141 apart
from suit or original proceeding there was
no need to include appeals by making such
provision. This further clarifies that Order
XXII since being procedure providing and
refer to substantive right like abatement has
not
been
made
applicable
to
other
proceedings."

7. As regards the reliance placed by
Shri Tripathi upon a Single Judge Bench
decision of the Guwahati High Court
reported in (2016) 6 Gauhati Law Reports
774, with respect, when there is a Full
Bench decision of this Court, the ratio of
which applies to the case at hand, propriety
demands that I should follow it, therefore,
the said decision of the Guwahati High
Court does not help the Counsel for the
opposite party especially in view of the
reasons given herein above regarding the
inapplicability of the decision in Shankar
Ramchandra Abhyankar's case to the issue
involved herein.

8. Now on the analogy of the ratio
laid down by the Full Bench decision even
if the provisions of Order XXII CPC do not
apply to revisional proceedings such as an
SCC Revision under Section 25 of the Act,
1887, inspite of Section 17 thereof, an
order cannot be passed against a dead
person, therefore, the legal representatives
of a dead party have to be brought on
record. Now, as the revision at hand is
neither a suit nor an appeal, Article 121 of
the Schedule to the Act, 1963 would not
apply as the said Article would apply to an
application to have the legal representative
of a deceased plaintiff or appellant or of a
deceased defendant or respondent to be
made a party in a suit or appeal under the
Code of Civil Procedure, 1908 which is not
attracted
herein.
Therefore,
in
these
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances on the analogy of the Full
Bench decision in Chandradeo Pandey, as
this revision under Section 25 of the Act,
1887 is before the High Court, it is Article
137 of the Act, 1963 which applies and the
limitation in such circumstances for filing
the application for substitution in an SCC
revision under Section 25 of the Act, 1887
would be 3 years. It being so, the
application of the revisionist is within time.
As no objections have been filed to the
application for substitution on any other
ground nor any other objection has been
raised during argument therefore the same
is allowed. Let necessary substitution be
carried out. List immediately after regular
work is resumed in the Courts.
----------
(2020)03-05ILR A1252
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Crl. Misc. Anticipatory Bail Application No. 597 of
2020

Shahaab Ali (Minor) & Anr. ...Applicants
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Sri Vinay Kumar Upadhyay, Sri Pramod
Bhardwaj

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law- Indian Penal Code,1860Sections 420,467,468, 471, 120B,504, 506
&
Code
of
Criminal
Procedure,1973Section
438-application-rejectionchallenge to- maintainability of section
438 at the behest of a minor-once a first
information is registered with regard to a
child in conflict with law, the provisions of
Section 438 stand impliedly excluded-the
2015 Act dealing with arrest and detention
must prevail over any other law-section
438 can be applied at pre recordal of
information stage-when the information
recorded u/s 10 of the 2015 Act, section
438 cannot be applied.(Para 3 to 43)

In the present case, a first information report
has already come to be lodged against the two
applicants.the police cannot apprehend the
applicants and procedure prescribed by section
10 and 12 will have to be followed.(Para 42)

The application is dismissed. (E-6)

List of Cases Cited:-

1. Gopakumar Vs. St. Of Kerala (2012) SCC
Online Ker 27614

2. Preetam Pathak Vs. St. Of Chh. (2014) SCC
Online Chh 125

3. Mr. X S/O Baby V.M. Vs. St. Of Ker,Bail
Application No. 3320 of 2018

4. Vishwa Mitter Vs. O.P. Poddar, AIR (1984) SC 5

5. Sudhir Sharma Vs. St. Of Chh. (2017) SCC
Online Chh 1554

6. Birbal Munda & Ors Vs. St. Of Jhar.(2019)
SCC Online Jhar 1794

7. K. Vignesh Vs. St.( 2017) SCC Online Mad
28442

8. Satendra Sharma Vs. St. Of M.P.,MCRC No.
4183 of 2014

9. Kapil Durgawani Vs. St. Of M.P. (2010) 4
MPJR 155

10. Sandeep Singh Tomar Vs. St. Of M.P.,MCRC
No. 9816 of 2013

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard learned counsel for the
applicants, Sri Vikas Sahai learned A.G.A.
for the State and perused the record.