Bashir (Since Dead) and Others vs State of U.P. and Others

Ran Vijai Singh, J.—Heard Sri P.S. Chauhan, learned counsel for the petitioners, learned Standing Counsel and Sri Rajesh Yadav, learned counsel for the Gaon Sabha. Learned counsel for the respondents state that under the facts and circumstances of this case, he does not propose to file counter-affidavit and the writ petition may be decided on its own merit in accordance with law.

This writ petition has been filed for issuing a writ of certiorari quashing the order dated 27.11.2010 passed by the Sub-Divisional Officer, Rampur Maniharan District Saharanpur in Case No. 08/2010 (State v. Ajmer and others) in a proceeding u/s 176A of U.P. Zamindari Abolition and Land Reforms Act, 1950 by which the name of the petitioners'' father has been expunged from the revenue record. Although, there is laches of more than three years but under the facts and circumstances of the case, that is liable to be ignored and the writ petition is being taken up for final disposal.

While assailing the impugned order, learned counsel for the petitioners contends that the order impugned has been passed against a dead person. In the submission of learned counsel for the petitioners, the petitioners'' father, against whom proceeding was initiated, has already expired in January, 2010 and the order has been passed in November, 2010. It is settled that the order against the dead person is nullity and void ab initio. The view taken by me finds support from the following authorities on the point.

The Apex Court in the case of Lilavati Bai Vs. The State of Bombay, , has held that the order passed against the dead person is a complete nullity.

In Amba Bai and Others Vs. Gopal and Others, , the Apex Court has held as under:

As the judgment in the Second Appeal was passed without the knowledge that the appellant had died, the same being a judgment passed against the dead person is a nullity.

In T. Gnanavel Vs. T.S. Kanagaraj and Another, , the Apex Court has taken the same view by observing as under:

For the reasons aforesaid, we are of the opinion that the High Court had rightly intercepted the provision of Order XXII, Rule 4(4) of the C.P.C. and accordingly held that the decree passed by the Trial Court on 20th of December, 2002, in O.S. No. 3946 of 1999 was a nullity in the eye of law as the defendant had died during the pendency of the suit for specific performance of the contract for sale and no exemption was sought at the instance of the plaintiff/appellant to bring on record the heirs and legal representatives of the defendant before the judgment was pronounced.

This Court also in the case of Subhash Chandra and Another Vs. D.D.C. and Others, has held that order passed against the dead person is a nullity. Taking note of the fact that the petitioners'' father, against whom the proceeding was initiated, has already died, when the impugned order was passed. The impugned order dated 27.11.2010 is hereby quashed. The writ petition succeeds and is allowed. However this order will not preclude the respondents to pass fresh order in accordance with law.