Kaushal Kishore Ghosh vs The State Of Madhya Pradesh
2023 Latest Caselaw 13441 MP

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                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                              ON THE 18 th OF AUGUST, 2023
                                             WRIT PETITION No. 20175 of 2023

                           BETWEEN:-
                           KAUSHAL KISHORE GHOSH S/O LATE BALAPRASAD
                           GHOSH, AGED ABOUT 60 YEARS, OCCUPATION:
                           BUSINESS R/O SARBAI, TEHSIL GAURIHAR, DISTRICT
                           CHHATARPUR     PRESENTLY R/O NAUGAON ROAD
                           BAURAM CHAURASIYA, IN FRONT OF PETROL PUMP,
                           CHHATARPUR, MADHYA PRADESH.

                                                                                      .....PETITIONER
                           (BY SHRI SIDDHARTH GULATEE - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 PRINCIPAL SECRETARY REVENUE DEPARTMENT
                                 MANTRALAYA VALLABH BHAWAN BHOPAL
                                 (MADHYA PRADESH)

                           2.    ADDITIONAL    COMMISSIONER S A G A R DIV.
                                 SAGAR (MADHYA PRADESH)

                           3.    COLLECTOR DISTRICT CHHATARPUR (MADHYA
                                 PRADESH)

                           4.    SUB DIVISIONAL MAGISTRATE SUB DIVISIONAL
                                 O F F I C E R LUVKUSH NAGAR     DISTRICT
                                 CHHATARPUR (MADHYA PRADESH)

                           5.    SIYASARAN GUPTA PRIEST BIHARIJI TEMPLE
                                 VILLAGE   SARBAI    TEHSIL   GAURIHAR
                                 CHHATARPUR (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                           (BY SHRI VIJAY KUMAR SHUKLA - PANEL LAWYER FOR THE
                           RESPONDENT/STATE)

                                 This petition coming on for admission, this day, the court passed the

Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 22-08-2023
11:24:50
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                           following:
                                                                 ORDER

Petitioner is aggrieved of the order dated 31.07.2023, passed by learned Additional Commissioner, Sagar, Division Sagar.

2. Petitioner's contention is that an application was filed by the private respondent before the S.D.O. stating that there exists a small temple on the private land of the petitioner and since it contains a very old and historic idol, it is a public temple and therefore, everybody including the private respondent has a right to pray and worship that idol. This petition was dismissed by the Sub Divisional Officer on 06.05.2022 (Annexure P-2), holding that since the dispute involves question of title, that can be determined only by the Court of

competent jurisdiction.

3. Against this order, private respondent filed an appeal before the Additional Collector. Before the Additional Collector, petitioner appeared and took an objection that proceedings have been drawn against a dead person. His father, late Shri Bala Prasad Ghosh died long back and therefore, there cannot be any adjudication against the dead person. Additional Collector without appreciating the provisions contained in order 22 CPC that there could not be any judgment against a dead person directed the private respondent to move an application for substitution of legal heirs of the father of the petitioner.

4. Being aggrieved of the said order passed by the Additional Collector, petitioner had preferred revision before the Court of Additional Commissioner, Sagar Division, Sagar wherein learned Additional Commissioner without dealing with the issue as to whether there can be any judgment/order against a dead person and whether the proceedings were void ab initio, decided the lis and held that the property is a public property and the temple is a public temple and Signature Not Verified Signed by: KRISHNA SINGH Signing time: 22-08-2023 11:24:50

therefore, everybody has a right to worship and offer prayers.

5. It is submitted that this order is cryptic and arbitrary.

6. Shri Vijay Kumar Shukla, learned panel lawyer supports the order.

7. After hearing learned counsel for the parties and going through the record, it is evident that the proceedings which were undertaken by the private respondent before the Sub Divisional Officer were against a dead person. Bala Prasad Ghosh, as reported by the petitioner, died somewhere in 2015. Proceedings were drawn before the Court of Naib Tahsildar, Sarvai in case No.56/B-121-2020-21. There could not have been any proceedings against a dead person.

8. Thus, the only issue which was available whether the proceedings were maintainable against the dead person or not. Order 22 Rule 6 provides that there shall be no abatement by reason of death after hearing but, at the same time, order 22 Rule 10 deals with procedure in case of assignment before final order is issued and Rule 10 A deals with duty of leader to communicate to court, death of a party. But all these provisions deals with a situation where one of the parties to the lis dies during the pendency of the proceedings. They do not answer the aspect of proceedings against a dead person. Therefore, in my opinion, learned Additional Commissioner did not appreciate the provisions contained in order 22 CPC and passed the impugned order without answering

the true and correct question, as to whether there can be an order against a dead person. Therefore, impugned order being cryptic and having failed to appreciate the correct legal position, deserves to be dismissed and is dismissed.

9. Petition is allowed and disposed of.

10. The matter is remanded to the Additional Commissioner to hear and decide the revision after giving notice to the concerned parties. Signature Not Verified Signed by: KRISHNA SINGH Signing time: 22-08-2023 11:24:50

(VIVEK AGARWAL) JUDGE veni

Signature Not Verified Signed by: KRISHNA SINGH Signing time: 22-08-2023 11:24:50