On The Death Of Late Bahar Ali His Legal Heirs Golaya Begum And 4 Ors vs Baleswar Rangpi And 2 Ors

A.S. Bopanna, CJ

Heard Mr. D. Choudhury and Mr. T.Ali, learned counsel for the appellants. Also heard Mr. R. Sarma and Ms. B. Devi, learned counsel for Respondents No.1 and 2.

The appellants are before this Court assailing the order dated 8.9.2017 passed in W.P.(C) No.49 of 2011. Through the said order, the learned Single Judge has set aside the order passed by the Board of Revenue and the matter had been remitted for consideration in the manner as indicated therein.

The instant appeal is filed by the legal representatives of Respondent No.1 in the said writ petition. Among other contentions, the learned counsel for the appellants has sought to contend that the order dated 8.9.2017 passed by the learned Single Judge is not sustainable in the eye of law as the said order is passed against dead person. The Death Certificate at Annexure-J is relied upon to point out that Respondent No.1 in the writ petition Md. Bahar Ali had died during the pendency of the writ petition on 16.12.2016. Though that was the position, the same has not been brought to the notice of the Court. In that view, it is contended that the order passed against a dead person without bringing the legal representatives on record is not sustainable. The contention is that the legal representatives, on learning about the order, has preferred the instant appeal.

Learned counsel for the respondents, however, contends that though the Respondent No.1 before the learned Single Judge was represented by his counsel, the fact of the death of Respondent No.1 was not brought to the notice of the Court and that the learned Single Judge on that basis has considered the merit of the case. Hence, the contention put forth on behalf of the appellant is not justified.

Though such contention is put forth by the learned counsel for the respondents, the fact that Respondent No.1 in the writ petition had died on 16.12.2016 cannot be disputed since the Death Certificate at Annexure-J would indicate that fact. If that be the position, the order dated 8.9.2017 passed against a dead person and, that too, to the detriment of his interest inasmuch as the order passed by the Board of Revenue had been set aside by the learned Single Judge is in a petition which had abated. In such circumstance, the order passed against a dead person would be a nullity in the eye of law.

If that be the position, this Court in this intra-court appeal cannot advert to the rival contentions on merit until the legal representatives are brought on record in the original proceedings and they are heard on merit and a conclusion is reached. Therefore, on the said ground, the order dated 8.9.2017 is set aside. The writ petition in W.P.(C) No.49 of 2011 is restored to file of the learned Single Judge to be listed before the Court which has the roster for the subject. In the said proceedings, the appellants herein shall be permitted to come on record as legal representatives of the deceased Respondent No.1 and on carrying out amendments, they shall be provided an opportunity to put forth all contentions on merit which are left open to be urged before the learned Single Judge.

The appeal is, accordingly, disposed of.