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2015 DIGILAW 1391 (RAJ)

Sal Khan v. State of Rajasthan

2015-07-24

GOVIND MATHUR, JAISHREE THAKUR

body2015
Hon'ble MATHUR, J.—To question order dated 24.9.2013 this appeal is preferred. 2. In brief, facts of the case are that Shri Sal Khan S/o. Adrim Khan preferred a revenue suit before the court of learned Assistant Collector cum Pargana Adhikari, Barmer for declaration of khatedari rights relating to the land situated in Khasra No.1978, 1989, 1981, 2001, 2083 and 2010 village Ranasar, Tehsil Shiv, District Barmer measuring 277 Bighas. The suit was dismissed by the judgment dated 30.5.1978. Being aggrieved, plaintiff Sal Khan preferred an appeal before the Revenue Appellate Authority, that came to be accepted under a judgment dated 29.12.1980. The learned Revenue Appellate Authority accepted the suit and issued a decree of declaration and injunction. The Tehsildar, Shiv and the State of Rajasthan questioned correctness of the judgment dated 29.12.1980 passed by the Revenue Appellate Authority by way of filing an appeal before the Board of Revenue. The Board of Revenue altered the judgment given by the Revenue Appellate Authority and dismissed the suit. To challenge the judgment given by the Board of Revenue Shri Sal Khan preferred a petition for writ (S.B. Civil Writ Petition No.3458/1989) before a Single Bench of Rajasthan High Court and that came to be accepted by the judgment dated 9.7.1998. To challenge the judgment passed by learned Single Bench, an appeal was preferred before Division Bench of this Court and that came to be decided on 20.7.2010. The learned Division Bench set aside the judgment dated 9.7.1998 passed by the learned Single Bench and remanded the matter to the writ court for adjudication of the writ petition afresh. Suffice it to mention that the Division Bench accepted the appeal by observation that : “The writ court failed to appreciate that the High Court under Article 227 of the Constitution is confined only to see whether any inferior court or tribunal has proceeded within its parameters and not to correct any error apparent on the fact of the record, much less of an error of law. The High Court while exercising its supervisory jurisdiction under Article 227 of the Constitution does not act as an appellate court of the tribunal and while exercising such jurisdiction, the High Court must not review or reweigh the evidence on which the inferior court or tribunal purports to have passed an order or to correct errors of law in the decision.” 3. Learned Single Bench as per the directions given by Division Bench re-heard the writ petition and decided the same by the judgment dated 24.9.2013. During pendency of the writ petition, the petitioner-plaintiff Sal Khan died but unfortunately the factum of his death was not brought to the notice of writ court as no application was made either to delete his name or to substitute him by his legal representatives. The writ petition was considered and decided on its merits in absence of the writ petitioners legal representatives. 4. In this appeal the legal representatives of Sal Khan have moved an application as per provisions of Order 22 Rule 3 Code of Civil Procedure to be substituted as appellant, being legal heirs of Shri Sal Khan. 5. Learned counsel for the caveator Shri Varun Goyal is having no objection for that. 6. Accordingly, the application is allowed. Legal heirs of Shri Sal Khan referred in the application be taken on record as appellants No.1/1 to 1/6. The amended cause-title has already been made available on record, same be treated as part of appeal. 7. It is submitted by learned counsel for the appellant that a party to lis if expires, then the lis comes to an end on the death of party and that can be revived only when the deceased legal representatives are brought on record. So long as the legal representatives are not brought on record by taking recourse to Order 22 of the Code of Civil Procedure either at the instance of party to the lis or by legal representatives of deceased themselves, as the case may be, the Court which was ceased of the lis has no jurisdiction to proceed with the case. In the case in hand, the issue has been decided against the dead person and, therefore, the judgment passed by learned Single Bench is nonest. In the instant matter, since the legal representatives of deceased (appellant herein) were not party brought on record of the writ petition, hence, the order impugned become a nullity, being passed when the lis was not alive due to death of a writ petitioner; such order, therefore, deserves to be set aside at the instance of legal representatives of deceased who have acquired a right to prosecute the lis having stepped in the shoes of deceased writ petitioner. 8. 8. As a result of the foregoing discussion, the appeal succeeds and is hereby allowed. The impugned order is set aside. The Writ Petition, being S.B. Civil Writ Petition No.3458/1989 is required to be restored. An amended cause title be also filed in that in consonance to acceptance of the application preferred as per provisions of Order 22 Rule 3 of the Code of Civil Procedure. The writ petition be listed before learned Single Bench for its disposal in accordance with law. 9. Looking to the fact that the matter in hand is quite old one, expeditious disposal of the writ petition is desirable.