Jharkhand High Court
Chamani Devi & Others vs The State Of Jharkhand Through ... on 4 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No.401 of 2014
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Chamani Devi & Others .... .... .... Petitioners
Versus
The State of Jharkhand through Deputy Commissioner, Koderma
& Another .... .... .... Opp. Parties
With
C.M.P. No.402 of 2014
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Chamani Devi & Others .... .... .... Petitioners
Versus
The State of Jharkhand through Deputy Commissioner, Koderma
& Another .... .... .... Opp. Parties
With
C.M.P. No.409 of 2014
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Chamani Devi & Others .... .... .... Petitioners
Versus
The State of Jharkhand through Deputy Commissioner, Koderma
& Another .... .... .... Opp. Parties
With
C.M.P. No.415 of 2014
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Bulaki Yadav .... .... .... Petitioner
Versus
The State of Jharkhand through Deputy Commissioner, Koderma
.... .... .... Opp. Party
With
C.M.P. No.416 of 2014
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Bashudeo Mahto & Others .... .... .... Petitioners
Versus
The State of Jharkhand through Deputy Commissioner, Koderma
.... .... .... Opp. Party
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Petitioners : Mr. Atma Ram Choudhary, Advocate
For the State : Mr. Shubham Gautam, AC to AAG V
(In C.M.P. No.402 of 2014)
Mr. Lav Kr. Tiwari, AC to AAG V
(In C.M.P. No.415 of 2014)
Mr. Shashank Shekhar, AC to AAG V
(In C.M.P. No.416 of 2014)
Ms. Shivani Kapoor, AC to SC II
(In C.M.P. No.401 of 2014)
------
Order No.09 Dated- 04/11/2022
C.M.P. No.401 of 2014
Heard the parties.
2. Learned counsel for the petitioners submits that this Civil
Miscellaneous Petition has been filed with a prayer to condone the delay
in filing the petition for substitution and to allow the name of Jago Mahto
be deleted from the cause-title of the memo of appeal and to get the names
of the petitioners of the instant Civil Miscellaneous Petition substituted in
his place. It is next submitted by the learned counsel for the petitioners
that the appellant No.1 namely Jago Mahto died on 13.07.2012 leaving
behind his only five legal representatives whose names, parentages and
addresses have been mentioned in paragraph-3 of the instant Civil
Miscellaneous Petition. It is then submitted that the petitioners being
rustic villagers and quite ignorant of the law, could not file the petition for
substituting themselves as party to the appeal during the pendency of the
First Appeal No.536 of 2006 which was disposed of vide common
judgment dated 13.09.2013 along with other appeals. It is then submitted
that the petitioners approached the Land Acquisition Officer and they
were told that the award has been prepared in the name of late Jago
Mahto, therefore, they are required to get their names substituted in place
of Jago Mahto. It is further submitted that a coordinate Bench of this Court
has allowed several petitions for substitution after disposal of the appeal
vide order dated 21.11.2014 passed in C.M.P. Nos.308 of 2014, 309 of 2014,
311 of 2014, 313 of 2014, 314 of 2014, 315 of 2014 and 316 of 2014.
3. Learned counsels for the State vehemently opposes the prayer for
substitution and submits that since the Court has become functus officio
after disposal of the appeal on 13.09.2013 so no order can be passed in the
said appeal by this court. Hence, it is submitted that this petition, being
without any merit, be dismissed.
4. Perusal of the record reveals that the legal representatives of the
Jago Mahto or the other petitioners-appellants apart from Jago Mahto
have not intimated to this Court about the death of Jago Mahto during the
pendency of the appeal. Order XXII Rule 4 (1) of the Code of Civil
Procedure reads as under:-
"(1) Where one of two or more defendants dies and the right to sue does
not survive against the surviving defendant or defendants alone, or a sole
defendant or sole surviving defendant dies and the right to sue survives,
the Court, on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and shall
proceed with the suit." (Emphasis supplied)
The word "and shall proceed with the suit" which finds place in Order
XXII Rule 4 (1) of the Code of Civil Procedure implies that the power
under Order XXII Rule 4 can only be exercised when court is in seisin of
the lis or in other words when the suit or appeal, as the case may be, is
pending.
5. Perusal of the record further reveals that in this miscellaneous Case,
the petitioners have deliberately not taken any step for service of notice
upon the opposite party No.2 and in view of non-compliance of the
peremptory order dated 17.05.2019 passed in the instant Civil
Miscellaneous Petition, by which the petitioners were directed to file
requisites for service of notice by 10.06.2019 failing which the instant Civil
Miscellaneous Petition was to stand dismissed against the concerned
opposite party without any further reference to the Bench; still the
petitioners have chosen not to file the requisites for service of notice upon
the opposite party No.2 and consequently the instant Civil Miscellaneous
Petition stood rejected against the opposite party No.2 on 10.06.2019 due
to non-compliance of the said peremptory order for filing the requisites
for service of notice upon the opposite party No.2.
6. Since the appeal has already been disposed of way back on
13.09.2013 finally so after that this Court has become functus officio so far
as the said appeal is concerned. Hence, in the considered opinion of this
Court the prayer for substitution of a party- the death of whom was
suppressed during the pendency of the appeal, resulting in the decree in
the appeal has been passed in respect of a dead person; cannot be made
after the appeal has been disposed of and this Court, thus, has become
functus officio so far as the appeal is concerned. For the same reason the
name of the party to the appeal also cannot be deleted subsequent to
passing of the final judgment and decree in the appeal.
7. Accordingly, the instant Civil Miscellaneous Petition, being not
maintainable and thus without any merit, is dismissed.
(Anil Kumar Choudhary, J.)
C.M.P. No.402 of 2014
Heard the parties.
2. Learned counsel for the petitioners submits that this Civil
Miscellaneous Petition has been filed with a prayer to condone the delay
in filing the petition for substitution and to allow the name of Jago Mahto
be deleted from the cause-title of the memo of appeal and to get the names
of the petitioners of the instant Civil Miscellaneous Petition substituted in
his place. It is next submitted by the learned counsel for the petitioners
that the appellant No.1 namely Jago Mahto died on 13.07.2012 leaving
behind his only five legal representatives whose names, parentages and
addresses have been mentioned in paragraph-3 of the instant Civil
Miscellaneous Petition. It is then submitted that the petitioners being
rustic villagers and quite ignorant of the law, could not file the petition for
substituting themselves as party to the appeal during the pendency of the
First Appeal No.503 of 2006 which was disposed of vide common
judgment dated 13.09.2013 along with other appeals. It is then submitted
that the petitioners approached the Land Acquisition Officer and they
were told that the award has been prepared in the name of late Jago
Mahto, therefore, they are required to get their names substituted in place
of Jago Mahto. It is further submitted that a coordinate Bench of this Court
has allowed several petitions for substitution after disposal of the appeal
vide order dated 21.11.2014 passed in C.M.P. Nos.308 of 2014, 309 of 2014,
311 of 2014, 313 of 2014, 314 of 2014, 315 of 2014 and 316 of 2014.
3. Learned counsels for the State vehemently opposes the prayer for
substitution and submits that since the Court has become functus officio
after disposal of the appeal on 13.09.2013 so no order can be passed in the
said appeal by this court. Hence, it is submitted that this petition, being
without any merit, be dismissed.
4. Perusal of the record reveals that the legal representatives of the
Jago Mahto or the other petitioners-appellants apart from Jago Mahto
have not intimated to this Court about the death of Jago Mahto during the
pendency of the appeal. Order XXII Rule 4 (1) of the Code of Civil
Procedure reads as under:-
"(1) Where one of two or more defendants dies and the right to sue does
not survive against the surviving defendant or defendants alone, or a sole
defendant or sole surviving defendant dies and the right to sue survives,
the Court, on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and shall
proceed with the suit." (Emphasis supplied)
The word "and shall proceed with the suit" which finds place in Order
XXII Rule 4 (1) of the Code of Civil Procedure implies that the power
under Order XXII Rule 4 can only be exercised when court is in seisin of
the lis or in other words when the suit or appeal, as the case may be, is
pending.
5. Perusal of the record further reveals that in this miscellaneous Case,
the petitioners have deliberately not taken any step for service of notice
upon the opposite party No.2 and in view of non-compliance of the
peremptory order dated 17.05.2019 passed in the instant Civil
Miscellaneous Petition, by which the petitioners were directed to file
requisites for service of notice by 10.06.2019 failing which the instant Civil
Miscellaneous Petition was to stand dismissed against the concerned
opposite party without any further reference to the Bench; still the
petitioners have chosen not to file the requisites for service of notice upon
the opposite party No.2 and consequently the instant Civil Miscellaneous
Petition stood rejected against the opposite party No.2 on 10.06.2019 due
to non-compliance of the said peremptory order for filing the requisites
for service of notice upon the opposite party No.2.
6. Since the appeal has already been disposed of way back on
13.09.2013 finally so after that this Court has become functus officio so far
as the said appeal is concerned. Hence, in the considered opinion of this
Court the prayer for substitution of a party- the death of whom was
suppressed during the pendency of the appeal, resulting in the decree in
the appeal has been passed in respect of a dead person; cannot be made
after the appeal has been disposed of and this Court, thus, has become
functus officio so far as the appeal is concerned. For the same reason the
name of the party to the appeal also cannot be deleted subsequent to
passing of the final judgment and decree in the appeal.
7. Accordingly, the instant Civil Miscellaneous Petition, being not
maintainable and thus without any merit, is dismissed.
(Anil Kumar Choudhary, J.)
C.M.P. No.409 of 2014
Heard the parties.
2. Learned counsel for the petitioners submits that this Civil
Miscellaneous Petition has been filed with a prayer to condone the delay
in filing the petition for substitution and to allow the name of Jago Mahto
be deleted from the cause-title of the memo of appeal and to get the names
of the petitioners of the instant Civil Miscellaneous Petition substituted in
his place. It is next submitted by the learned counsel for the petitioners
that the appellant No.1 namely Jago Mahto died on 13.07.2012 leaving
behind his only five legal representatives whose names, parentages and
addresses have been mentioned in paragraph-3 of the instant Civil
Miscellaneous Petition. It is then submitted that the petitioners being
rustic villagers and quite ignorant of the law, could not file the petition for
substituting themselves as party to the appeal during the pendency of the
First Appeal No.770 of 2006 which was disposed of vide common
judgment dated 13.09.2013 along with other appeals. It is then submitted
that the petitioners approached the Land Acquisition Officer and they
were told that the award has been prepared in the name of late Jago
Mahto, therefore, they are required to get their names substituted in place
of Jago Mahto. It is further submitted that a coordinate Bench of this Court
has allowed several petitions for substitution after disposal of the appeal
vide order dated 21.11.2014 passed in C.M.P. Nos.308 of 2014, 309 of 2014,
311 of 2014, 313 of 2014, 314 of 2014, 315 of 2014 and 316 of 2014.
3. Learned counsels for the State vehemently opposes the prayer for
substitution and submits that since the Court has become functus officio
after disposal of the appeal on 13.09.2013 so no order can be passed in the
said appeal by this court. Hence, it is submitted that this petition, being
without any merit, be dismissed.
4. Perusal of the record reveals that the legal representatives of the
Jago Mahto or the other petitioners-appellants apart from Jago Mahto
have not intimated to this Court about the death of Jago Mahto during the
pendency of the appeal. Order XXII Rule 4 (1) of the Code of Civil
Procedure reads as under:-
"(1) Where one of two or more defendants dies and the right to sue does
not survive against the surviving defendant or defendants alone, or a sole
defendant or sole surviving defendant dies and the right to sue survives,
the Court, on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and shall
proceed with the suit." (Emphasis supplied)
The word "and shall proceed with the suit" which finds place in Order
XXII Rule 4 (1) of the Code of Civil Procedure implies that the power
under Order XXII Rule 4 can only be exercised when court is in seisin of
the lis or in other words when the suit or appeal, as the case may be, is
pending.
5. Perusal of the record further reveals that in this miscellaneous Case,
the petitioners have deliberately not taken any step for service of notice
upon the opposite party No.2 and in view of non-compliance of the
peremptory order dated 17.05.2019 passed in the instant Civil
Miscellaneous Petition, by which the petitioners were directed to file
requisites for service of notice by 10.06.2019 failing which the instant Civil
Miscellaneous Petition was to stand dismissed against the concerned
opposite party without any further reference to the Bench; still the
petitioners have chosen not to file the requisites for service of notice upon
the opposite party No.2 and consequently the instant Civil Miscellaneous
Petition stood rejected against the opposite party No.2 on 10.06.2019 due
to non-compliance of the said peremptory order for filing the requisites
for service of notice upon the opposite party No.2.
6. Since the appeal has already been disposed of way back on
13.09.2013 finally so after that this Court has become functus officio so far
as the said appeal is concerned. Hence, in the considered opinion of this
Court the prayer for substitution of a party- the death of whom was
suppressed during the pendency of the appeal, resulting in the decree in
the appeal has been passed in respect of a dead person; cannot be made
after the appeal has been disposed of and this Court, thus, has become
functus officio so far as the appeal is concerned. For the same reason the
name of the party to the appeal also cannot be deleted subsequent to
passing of the final judgment and decree in the appeal.
7. Accordingly, the instant Civil Miscellaneous Petition, being not
maintainable and thus without any merit, is dismissed.
(Anil Kumar Choudhary, J.)
C.M.P. No.415 of 2014
Heard the parties.
2. Learned counsel for the petitioner submits that this Civil
Miscellaneous Petition has been filed with a prayer to condone the delay
in filing the petition for substitution and to allow the name of Joba Mahto
be deleted from the cause-title of the memo of appeal and to get the name
of the petitioner of the instant Civil Miscellaneous Petition substituted in
his place. It is next submitted by the learned counsel for the petitioner that
the appellant Joba Mahto died on 03.03.2006 leaving behind his only one
legal representative whose name, parentage and address has been
mentioned in paragraph-3 of the instant Civil Miscellaneous Petition. It is
then submitted that the petitioner being rustic villager and quite ignorant
of the law, could not file the petition for substituting himself as party to
the First Appeal No.355 of 2006 during the pendency of the appeal which
was disposed of vide common judgment dated 13.09.2013 along with
other appeals. It is then submitted that the petitioner approached the Land
Acquisition Officer and he was told that the award has been prepared in
the name of late Joba Mahto, therefore, he is required to get his name
substituted in place of Joba Mahto. It is further submitted that a
coordinate Bench of this Court has allowed several petitions for
substitution after disposal of the appeal vide order dated 21.11.2014
passed in C.M.P. Nos.308 of 2014, 309 of 2014, 311 of 2014, 313 of 2014, 314
of 2014, 315 of 2014 and 316 of 2014.
3. Learned counsel for the State vehemently opposes the prayer for
substitution and submits that since the Court has become functus officio so
no order can be passed after disposal of the appeal on 13.09.2013. Hence, it
is submitted that this petition, being without any merit, be dismissed.
4. Perusal of the record reveals that the legal representatives of Joba
Mahto has not intimated to this Court about the death of Joba Mahto
during the pendency of the appeal. Order XXII Rule 4 (1) of the Code of
Civil Procedure reads as under:-
"(1) Where one of two or more defendants dies and the right to sue does not
survive against the surviving defendant or defendants alone, or a sole defendant
or sole surviving defendant dies and the right to sue survives, the Court, on an
application made in that behalf, shall cause the legal representative of the deceased
defendant to be made a party and shall proceed with the suit." (Emphasis
supplied)
The word "and shall proceed with the suit" which finds place in
Order XXII Rule 4 (1) of the Code of Civil Procedure implies that the
power under Order XXII Rule 4 can only be exercised when court is in
session of the lis.
5. Perusal of the record further reveals that since the appeal has
already been disposed of way back on 13.09.2013 finally so after that this
Court has become functus officio so far as the said appeal is concerned.
Hence, in this considered opinion of this Court the prayer for substitution
of a party which was suppressed during the pendency of the appeal
cannot be made after the appeal has been disposed of and this Court, thus,
has become functus officio so far as the appeal is concerned.
6. Accordingly, the instant Civil Miscellaneous Petition, being without
any merit, is dismissed.
(Anil Kumar Choudhary, J.)
C.M.P. No.416 of 2014
Heard the parties.
2. Learned counsel for the petitioners submits that this Civil
Miscellaneous Petition has been filed with a prayer to condone the delay
in filing the petition for substitution and to allow the name of Most.
Pachia be deleted from the cause-title of the memo of appeal and to get
the names of the petitioners of the instant Civil Miscellaneous Petition
substituted in her place. It is next submitted by the learned counsel for the
petitioners that the appellant Most. Pachia died on 28.05.2013 leaving
behind her only seven legal representatives whose names, parentages and
addresses have been mentioned in paragraph-3 of the instant Civil
Miscellaneous Petition. It is then submitted that the petitioners being
rustic villagers and quite ignorant of the law, could not file the petition for
substituting themselves as party to the First Appeal No.549 of 2006 during
the pendency of the appeal which was disposed of vide common
judgment dated 13.09.2013 along with other appeals. It is then submitted
that the petitioners approached the Land Acquisition Officer and they
were told that the award has been prepared in the name of Most. Pachia,
therefore, they are required to get their names substituted in place of
Most. Pachia. It is further submitted that a coordinate Bench of this Court
has allowed several petitions for substitution after disposal of the appeal
vide order dated 21.11.2014 passed in C.M.P. Nos.308 of 2014, 309 of 2014,
311 of 2014, 313 of 2014, 314 of 2014, 315 of 2014 and 316 of 2014.
3. Learned counsel for the State vehemently opposes the prayer for
substitution and submits that since the Court has become functus officio so
no order can be passed after disposal of the appeal on 13.09.2013. Hence, it
is submitted that this petition, being without any merit, be dismissed.
4. Perusal of the record reveals that the legal representatives of Most.
Pachia or the other petitioners apart from Most. Pachia have not intimated
to this Court about the death of the Most. Pachia during the pendency of
the appeal. Order XXII Rule 4 (1) of the Code of Civil Procedure reads as
under:-
"(1) Where one of two or more defendants dies and the right to sue does not
survive against the surviving defendant or defendants alone, or a sole defendant
or sole surviving defendant dies and the right to sue survives, the Court, on an
application made in that behalf, shall cause the legal representative of the deceased
defendant to be made a party and shall proceed with the suit." (Emphasis
supplied)
The word "and shall proceed with the suit" which finds place in
Order XXII Rule 4 (1) of the Code of Civil Procedure implies that the
power under Order XXII Rule 4 can only be exercised when court is in
session of the lis.
5. Perusal of the record further reveals that since the appeal has
already been disposed of way back on 13.09.2013 finally so after that this
Court has become functus officio so far as the said appeal is concerned.
Hence, in the considered opinion of this Court the prayer for substitution
of a party which was suppressed during the pendency of the appeal
cannot be made after the appeal has been disposed of and this Court, thus,
has become functus officio so far as the appeal is concerned.
6. Accordingly, the instant Civil Miscellaneous Petition, being without
any merit, is dismissed.
Animesh/ (Anil Kumar Choudhary, J.)
