Kalu Mahato & Ors vs The State Of Jharkhand
2023 Latest Caselaw 95 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   F.A. No. 75 of 2022
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Kalu Mahato & Ors. .... .... .... Appellants Versus The State of Jharkhand .... .... .... Respondent

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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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     For the Appellants         : Ms. Apurv, Advocate
                                : Ms. Moushmi Chatterjee, Advocate
                                : Mr. Shekhar Sinha, Advocate
     For the Respondent         : Mr. Krishna Kumar Bhatt, AC to SC-I
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     Order No.05 Dated- 04.01.2023
     I.A. No.7967 of 2022
           Heard the parties.

The learned counsel for the appellants submits that this interlocutory application has been filed with a prayer to permit the legal representatives of the deceased parties before the tribunal in the reference, to represent their respective ancestors in this appeal.

It is next submitted by the learned counsel for the appellants that the parties in Reference Case No.1 of 1995, Smt. Shitla Devi and Kritivas Mahto have died during the pendency of the reference case. It is further submitted that Shitla Devi died in the year 2007 and the appellant nos.1 and 2 are her legal representatives and Kritivas Mahto also died in the year 2007 leaving behind his six sons who are also the appellants of this appeal. So the judgment and award has been passed against two dead persons.

It is a settled principle of law that a decree passed by court in favour of or against a party who was dead, is a nullity as has been observed by the Hon'ble Supreme Court of India in the case of Kishun alias Ram Kishun (DEAD) Through Lrs. v. Behari, (DEAD) By Lrs. reported in (2005) 6 SCC 300, paragraph no.6 of which reads as under:-

"6. As rightly pointed out by learned counsel for the appellants and fairly agreed to by learned Senior Counsel for the respondent, the decree passed by the High Court in favour of a party who was dead and against a party who was dead, is obviously a nullity. It is conceded that the legal representatives of neither of the parties were brought on record in the second appeal and the second appeal stood abated. On this short ground this appeal is liable to be allowed and the decision of the High Court set aside." (Emphasis supplied)

Since the impugned judgment has been passed against two dead persons, the same is a nullity. Hence, this Court is not inclined to permit the legal representatives of the two dead persons in respect of whom the impugned judgment has been passed, to represent such persons in this appeal as the impugned judgment itself is a nullity.

Accordingly, this interlocutory application being without any merit is rejected.

(Anil Kumar Choudhary, J.)

F.A. No. 75 of 2022

It is submitted by the learned counsel for the appellants that the defect no.1 pointed out by the stamp reporter is regarding filing of the certified copy of the judgment. It is next submitted that out of the same common impugned judgment, the First Appeal No.152 of 2012 has also been filed. Hence, in view of Rule 201 of High Court of Jharkhand Rules, 2001, the appellants be exempted from filing the certified copy of the impugned judgment and award as the appellants has already filed the photocopy of the certified copy of the impugned judgment.

Considering the aforesaid facts, the defect no.1 as pointed out by the stamp reporter is ignored.

List this appeal after further stamp reporting.

Sonu-Gunjan/- (Anil Kumar Choudhary, J.)