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2013 DIGILAW 725 (JK)

Noor Alahi v. Roshan Din

2013-12-13

Madan Lal

body2013
ORDER 1. Petitioners have assailed impugned order dated 29th October, 2011 passed by Additional Deputy Commissioner, Udhampur with powers of Commissioner Agrarian Reforms in case titled Juma @ Jamal Din v. Noor Illahi on the round that impugned order is bad in the eyes of law for the reason that appellant died during the currency of the appeal and the counsel for the appellant had informed the Court about the death of the appellant on 24.12.2009 and sought time for bringing on record the legal heirs of the appellant. But neither the application was moved nor the same was ever allowed by the appellate Court and thus the respondent no. 6 (Additional Deputy Commissioner Udhampur) has allowed the appeal in favour of the dead person when the same stands abated by the death of the appellant, as such the impugned order being nullity in the eyes of the law and contrary to the law laid down by the Supreme Court in case Amba Bhai v. Gopal AIR 2001 SC 2003 , order 22, Rule 9 : "(1) Where a suit abates or is dismissal under this order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal: and if it is proved that he was prevented by any sufficient cause from continuing the suit: the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit". 2. Further argued that Court below seized to have the power to allow the appeal on merits in absence of the appellant, when the appellant died, in view of the order 22 of the Code of Civil Procedure, as such the order of allowing the appeal on merits in absence of the appellant, or legal representatives is nullity in the eyes of law is patently illegal, without jurisdiction and nonest in the eyes of law as the respondents who are legal heirs of Lt. Juma @ Jamal Din have not taken any steps to make the application for bringing on record the legal heirs of appellant, Court below. 3. I have heard and perused the file. Respondent no. Juma @ Jamal Din have not taken any steps to make the application for bringing on record the legal heirs of appellant, Court below. 3. I have heard and perused the file. Respondent no. 1 and 2 despite services have failed to appear/cause their his presence before this Tribunal whereas respondent no.3 to 5 have been deleted from the array of the respondents, as the learned counsel for the petitioners have made a statement at bar that petitioners have not sought any relief from respondents 3 to 5 and same may be deleted from the array of respondent. Mr. Koushal Parihar has put his signatures on the margin of the order sheet. Accordingly the respondent 3 to 5 have been deleted. Record file have been received. From the perusal of the records file reveals that as per order dated 24.12.2009 appellant Juma has expired. Despite this facts, proceedings have been conducted by the Court below and the order came to be passed on 29th October, 2011. Whereas order sheet reveals that file had been posted for final orders on 22nd October, 2011. 4. Perusal of the record of the record file reveals that at Page 20 of the record file, an application for bringing on record the legal heirs of appellant Youssaf has been made on 20.5.2006 for bringing on record ___ of Youssaf namely Noor Illahi and Saif Ali. Arguments advanced by the learned counsel for the petitioners has a force .Admittedly it has been brought to the notice of the Court below that appellant had expired but no steps have been taken to bring on record the legal representatives of the appellants on file . Order dated 24.12.2009 supports the arguments of learned counsel for the petitioners and impugned order has been passed. It is settled law that order passed against a dead person is nullity in the eyes of law. 5. Keeping in view the facts of the case and law of the land, impugned order is set aside and the case is remanded to Additional Deputy Commissioner Udhampur to hear the petitioners and respondents a fresh and pass an appropriate order whether the appeal preferred by the appellants stand abated or required to be decided on merits. Office is directed to send the record file alongwith copy of the order to the concerned quarter. Office is directed to send the record file alongwith copy of the order to the concerned quarter. Learned counsel for the petitioner is directed to cause his appearance before Court below on __________.