Lal Chand and ors. Vs. Raghu Nath and ors. - Court Judgment

Excerpt:
- administrative law - government contract: [vijender jain, c.j., rajive bhalla & sury kant, jj] government contract rejection of highest bid challenge as to held, state has no dominus status to dictate unilateral terms and conditions when it enters into contract. its actions must be reasonable, fair and just in consonance with rule of law. as a necessary corollary thereto, state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. the state is free to enter into a contract just like any other individual and the contract shall not change its legal character merely because other party to contract is state. though no citizen possesses a legal right to compel state to enter into a contract, yet latter can neither pick and choose any person arbitrarily for entering into such agreement nor can it discriminate between persons similarly circumstanced. similarly, where breach of contract at hands of state violates fundamental rights of a citizen or its refusal to enter into a contract is contrary to statutory provisions or public duty, judicial review of such state action is inevitable. likewise, if state enters into a contract in consonance with article 299 rights of the parties shall be determined by terms of such contract irrespective of fact that one of the parties to it is a state or a statutory authority. for these precise reasons the equitable doctrine of promissory estoppel has been made applicable against the government, as against any other private individual, even in cases where no valid contract in terms of article 299 was entered into between the parties. hence, if government makes a representation or a promise and an individual alters his position by acting upon such promise, the government may be required to make good that promise and shall not be allowed to fall back upon the formal defect in the contract, though subject to well known limitations like larger public interest. the state, thus, has no dominus status to dictate unilateral terms and conditions when it enters into contract and its actions must be reasonable, fair and just and in consonance with rule of law. as a necessary corollary thereto state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. -- consumer protection act, 1986 [c.a. no. 68/1986]. articles 14 & 300a: government contract noon-acceptance of highest bid held, it does not result in taking away right to property of highest bidder highest bid, per se, unless it is accepted by competent authority, and consequential sale certificate is issued, does not grant the highest bidder right to property of type which is protected under article 300a right to property is limited to confer highest bidder the right to challenge action of appropriate authority in refusing to accept highest or other bids. [air 1984 p&h 282 (fb) explained] articles 14 & 226: government contract rejection of highest bid held, highest bidder has locus standi to maintain writ petition and assail action of state government or its authorities by contending that his bid has been turned down for arbitrary, illegal or perverse reasons however in such matters, heavy onus would like on petitioner bidder to establish his allegations as state action shall always be presumed to be in accordance with law - jain, advocate, then they preferred an application on 6.5.1999 for review of the order dated 13.10.1997, but the said application was dismissed on 23.8.2006. the appeal preferred by them against the order dated 13.10.1997 as well as 23.8.2006 was dismissed by the learned district judge, sonepat on 13.9.2008. 3. as regards the first order dated 13.10.1997, it may be observed that there is no denying a fact that a suit for pre-emption was filed on 16.7.1990 by sohan lal but he died on 8.12.1992. the counsel duly engaged by sohan lal did not apprise the legal representatives of sohan lal for three years and ultimately the application for bringing on record the l. (4) if a decree has been passed against the deceased-defendant a person claiming to be his legal representative may apply for setting aside the decree qua him and if it is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on the record, the court shall set aside the decree upon such terms as to costs or otherwise as it thinks fit. (5) before setting aside the decree under sub-rule (4) the court must be satisfied prima facie that had the legal representative been on the record a different result might have been reached in the suit.a.n. jindal, j.1. this petition has arisen out of the order dated 13.9.2008 passed by the learned district judge, sonepat, whereby, he while holding that the application for impleading the legal representatives of sohan lal suffered from delay, upheld the abatement order passed by the trial court on 13.10.1997 and the application for review of the said order was dismissed on 23.8.2006. appeal against the said order was also dismissed.2. briefly stated, the facts of the case are that the petitioners appellants-plaintiffs filed a suit while pleading that their predecessor-in interest namely sohan lal was a tenant over the piece of land measuring 8 kanals 12 marlas situated in the revenue estate of village kurar ibrahimpur, tehsil ganaur, district sonepat. the respondents no. 6 to 13 i.e. landlords sold the piece of land to the respondents no. 1 to 5 without serving notice upon sohan lal who exercised his right of pre-emption. thus, they challenged the sale deed and filed a civil suit for pre-emption. sohan lal expired during the pendency of the suit i.e. on 8.12.1992. the application for impleading the l.rs was filed by the plaintiffs on 6.3.1995. the said application was dismissed by the civil judge (jr. division), sonepat on 13.10.1997. the plaintiffs further averred that the factum with regard to abatement of the suit was never conveyed to them by their counsel namely ranbir singh, advocate. they came to know about the said order dated 13.10.1997 in the month of march, 1999, through mr. s.p. jain, advocate, then they preferred an application on 6.5.1999 for review of the order dated 13.10.1997, but the said application was dismissed on 23.8.2006. the appeal preferred by them against the order dated 13.10.1997 as well as 23.8.2006 was dismissed by the learned district judge, sonepat on 13.9.2008.3. as regards the first order dated 13.10.1997, it may be observed that there is no denying a fact that a suit for pre-emption was filed on 16.7.1990 by sohan lal but he died on 8.12.1992. the counsel duly engaged by sohan lal did not apprise the legal representatives of sohan lal for three years and ultimately the application for bringing on record the l.rs was moved on 6.3.1995, which was dismissed on 13.10.1997. the crucial controversy involved in the case is whether there was any limitation in filing application for impleading the legal representatives.4. learned counsel for the petitioners has contended that after the amendment was made by the high court in order 22 rules 3 & 4 of cpc, there is no limitation for impleading the l.rs. and the only condition precedent for impleading them was the pendency of the suit.5. having considered this contention, i find merit in the same. though, the law of limitation is a central act, yet, the high courts by virtue of section 122 of cpc were not divested with the powers to make rules regulating their own procedure and the procedure of the civil courts subject to the superintendence and may by such rules annul, alter or add to all or any of the rules in the first schedule. section 122 of cpc lays down as follows:high court not being the court of a judicial commissioner, may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the civil courts subject to their superintendence and may by such rules annul, alter or add to all or any of the rules in the first schedule.6. now it would be appropriate to reproduce the punjab amendment made in order 22 rule 4 cpc, which reads as under:high court amendment - [punjab, haryana and chandigarh] - in rule 4, sub rule (3) shall be substituted as follows:(3) where within the time limited by law no application is made under sub-rule (1) the suit shall not abate as against the deceased-defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.(ii) in rule 4, the following shall be inserted as sub-rule (4), (5) and (6), namely:(4) if a decree has been passed against the deceased-defendant a person claiming to be his legal representative may apply for setting aside the decree qua him and if it is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on the record, the court shall set aside the decree upon such terms as to costs or otherwise as it thinks fit.(5) before setting aside the decree under sub-rule (4) the court must be satisfied prima facie that had the legal representative been on the record a different result might have been reached in the suit.(6) the provisions of section 5 of the limitation act, 1963 shall apply to applications under sub-rule 4.7. as per the amendment, where one of two or more plaintiffs dies and right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application in that behalf, shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit. the amendment further speaks that even if no application is filed within time, then the suit shall not abate against the deceased plaintiff and the judgment could be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place, and the contract between deceased and the pleader in that event shall continue to subsist.8. while adverting again to section 122 of cpc, it transpires that high court could make such rules, regulations regulating its own procedure and the procedure of the civil court from time to time. so much so, it has the power to annul, alter or add to all or any of the rules in the first schedule. prior to the amendment, it was obligatory on the part of the lrs. to make an application within 90 days and in case such application is not filed then the suit was liable to be dismissed as abated. as such, in order to over come this difficulty, high court regulated its own procedure and amended rule 3 and 4 for the benefit of the litigant public and for protection of suits so that such suits may not abate on the ground of limitation. this aspect of the matter was considered by this court in case saraswati and ors. v. hazari lal and ors. 1989 p.l.j. 670, wherein it was observed as under:it is no more disputed that there was no limitation for bringing on record the legal representatives of the deceased defendant in view of the amendment of this court in order 22, rule 4, cpc, vide punjab government gazette, 11.4.1975, part ii, wherein it has been provided that if within the time limited by law, no application is made under sub-rule (1) the suit shall not abate as against the deceased-defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as it if had been pronounced before the death took place. that being so, the question of abatement does not arise and the legal representatives were entitled to be brought on the record at any time.9. again this point came up for consideration before this court in case narata singh v. sawaya singh (deceased) 1992 p.l.j. 302, wherein, while relying upon saraswati and ors.' case (supra), it was observed as under:7. in view of the amendment made by this court in order 22 rule 4 of the code of civil procedure and the law laid down in saraswati's case (supra) this revision petition succeeds, the impugned orders are set aside and the application for bringing the legal representatives of the deceased defendant is allowed. there would be no order as to costs.10. in the instant case, admittedly, the suit was pending and it has been pleaded that the petitioners did not come to know that the case was pending and they moved the application on 6.3.1995 which was dismissed on 13.10.1997. however, in view of the amended rules, they moved the application for review in which the civil judge has also admitted that there is no limitation for bringing on record the lrs of the deceased, but he dismissed the application for review on the ground of delay and laches as review application was filed after one year and seven months of the dismissal of the earlier application. the records reveal that the petitioners never went silent and they continued making efforts to be impleaded as respondents as soon as they came to know about the pendency of the suit. while holding that the petitioners were not at fault in moving the applications and thus moved the same as soon as they came to know about the pendency of the suit, however, again the review application was filed in the year 1999 and the court took seven years to decide the said application. the meritorious claims cannot be thrown away unheard. the trial court appears to have been moved for the reasons that the application for filing review continued prolonging and so the adjudication of the suit shall also be delayed. but the application should not be dismissed on account of delay only. this delay being duly explained could be condoned.11. the aforesaid aspects of the case were not taken into consideration by the trial court. when the trial court itself admits that the earlier order passed by it was not valid because there is no limitation in moving the application for impleading the l.rs, therefore, the court could have taken these aspects also into consideration.12. for the foregoing reasons, i accept the petition and set aside the impugned order. the petitioners are directed to appear before the trial court and the trial court is directed to proceed in accordance with law.