# Ram Prakash and Ors v. Board of Revenue & Ors

- **Citation:** (2013) 2 ILRA 976
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-03
- **Case number:** Civil Misc. Writ Petition No.962 of 2011
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prakash-and-ors-v-board-of-revenue-ors-42655
- **Pages:** 4

## Headnote

Constitution of India, Art. 226- Restoration
application-rejected by member board of
revenue-on ground two different date of
knowledge
given-admittedly
the
petitioner's father died on 27.10.2002-case
dismissed in default on 19.07.2004-date of
knowledge
may
be
09.06.2007
or
18.06.2007-it is clear that petitioner never
engaged the counsel-but was engaged by
the father-after death of father-appearance
of counsel-wholly unauthorized-one apart
from
Court
is
honored
for
the
fact
emparting substantial justice and not for
shutting the door of justice on technical
ground-order
rejecting
restorationquashed.

Held: Para-15
Otherwise
also,
the
purpose
of
establishment of the Courts is to impart the
substantial justice to the parties and not to
scuttle
the
process
of
justice
on
technicalities. The learned Member has
observed that the petitioners were not sure
about the date of the knowledge of the
order dated 19.7.2004 as at one place, they
have mentioned that they have come to
know about the order dated 19.7.2004 on
9.6.2007 and at another place they have
stated that they came to know the same on
18.6.2007. In my opinion, this will not
substantially
affect
the
merit
of
the
restoration application. So far as the other
observation of the learned Member with
regard to the knowledge of the date fixed in
the revision is concerned, it has nowhere
been recorded in the order that the counsel
who had appeared was engaged by the
petitioners and the petitioners were party in
the
revision,
therefore
the
basis
of
presumption of the knowledge of the date
is totally misconceived.

Case Law discussed:
AIR 1957; AIR 2001; 2009(75) ALR 515;
2012(117) R.D. 413; JT 1987 (1) SC 5371987(2) SCR 387.

## Text

976 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
recording finding of conviction under
Section 302 IPC.

70. The prosecution has failed to
prove its case beyond reasonable doubt
and the appellant is entitled to acquittal.

71. In the result appeal is allowed.
The findings of conviction recorded by
the trial court are set aside. The appellant
is in jail. He shall be released forthwith
unless wanted in any other case.

72. The office is directed to
communicate this judgement to the trial
court for necessary compliance.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 03.07.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No.962 of 2011

Ram Prakash and Ors. ...Petitioners
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shalilendra Singh

Counsel for the Respondents:
C.S.C., Sri Jugal Kishore Gupta
Sri Jugal Kumar Mishra

Constitution of India, Art. 226- Restoration
application-rejected by member board of
revenue-on ground two different date of
knowledge
given-admittedly
the
petitioner's father died on 27.10.2002-case
dismissed in default on 19.07.2004-date of
knowledge
may
be
09.06.2007
or
18.06.2007-it is clear that petitioner never
engaged the counsel-but was engaged by
the father-after death of father-appearance
of counsel-wholly unauthorized-one apart
from
Court
is
honored
for
the
fact
emparting substantial justice and not for
shutting the door of justice on technical
ground-order
rejecting
restorationquashed.

Held: Para-15
Otherwise
also,
the
purpose
of
establishment of the Courts is to impart the
substantial justice to the parties and not to
scuttle
the
process
of
justice
on
technicalities. The learned Member has
observed that the petitioners were not sure
about the date of the knowledge of the
order dated 19.7.2004 as at one place, they
have mentioned that they have come to
know about the order dated 19.7.2004 on
9.6.2007 and at another place they have
stated that they came to know the same on
18.6.2007. In my opinion, this will not
substantially
affect
the
merit
of
the
restoration application. So far as the other
observation of the learned Member with
regard to the knowledge of the date fixed in
the revision is concerned, it has nowhere
been recorded in the order that the counsel
who had appeared was engaged by the
petitioners and the petitioners were party in
the
revision,
therefore
the
basis
of
presumption of the knowledge of the date
is totally misconceived.

Case Law discussed:
AIR 1957; AIR 2001; 2009(75) ALR 515;
2012(117) R.D. 413; JT 1987 (1) SC 5371987(2) SCR 387.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri Shailendra Singh,
learned counsel for the petitioners,
learned standing counsel for the State
respondents and Sri Jugal Kishore Gupta,
learned counsel for the respondent nos. 2
to 13.

2. This writ petition has been filed
for issuing a writ, order or direction in the
nature of certiorari quashing the orders
dated
19.7.2004
and
6.8.2010.
2 All] Ram Prakash and Ors. Board of Revenue & Ors.
977

3. Vide order dated 19.7.2004
Reference No. 168 LR of 1994-95
(Mathura Prasad vs. Sukku and others)
made by the Additional Commissioner
was dismissed in default by the learned
Member Board of Revenue whereas vide
order
dated
6.8.2010
petitioners'
restoration application seeking recall of
the order dated 19.7.2004 has been
rejected.

4. Counter affidavit has been filed
by the respondents. Learned counsel for
the petitioners does not propose to file
rejoinder affidavit to which learned
counsel appearing for respondent nos. 2 to
13 has no objection.

5. With the consent of the parties the
writ petition is taken up for final disposal.

6. The facts giving rise to the
present writ petition are that it appears as
reference was made in Revision No.
397/93 Mathura Prasad Vs. Shukhu and
others
by
Additional
Commissioner
Kanpur Division Kanpur which was
numbered as Reference No. 168 LR of
1994-95 (Mathura Prasad vs. Sukku and
others). The revision was filed by the
father of the petitioners. He was pursuing
the matter through his counsel but
unfortunately he died in the year 2002 to
be more specific on 27.10.2002. The
petitioners who are the sons of late
Mathura Pradad were unaware of the
proceeding of the reference. The said
reference was dismissed in default on
19.7.2004. The petitioners have come to
know about said order only through the
Lekhpal on 9.6.2007. After coming to
know about the aforesaid order, a
restoration application was filed on
26.6.2007
by
the
petitioners.
The
application has been rejected by the
learned Member Board of Revenue vide
order dated 6.8.2010. While rejecting the
application, the learned Member has
observed that according to the record, the
petitioners/applicants have shown two
dates of knowledge of the order dated
19.7.2004. One date happens to be
9.6.2007 and another 18.6.2007 which are
contradictory. It is also recorded that from
the perusal of the order-sheet dated
29.8.2003,
it
is
apparent
that
the
revisionist had knowledge of the next date
i.e. 3.12.2003. Thereafter, another date
was fixed on 27.1.2004, on which date,
counsel for the revisionist has sought time
and on that, next date was fixed on
19.7.2004. On this date, the revision was
dismissed in default. The learned Member
opined that the restoration application has
been filed on misconceived ground for the
simple
reason
that
two
dates
of
knowledge of the order dismissing the
case in default has been stated by the
applicants/petitioners and further, the date
fixed in the revision was in the notice of
the revisionist' counsel and their absence
was deliberate.

7. Learned counsel appearing for the
petitioners contended that once the
petitioners came with the case that they
have come to know the order dated
19.7.2004 in the year 2007 may be on
9.6.2007 or 18.6.2007 there was no
occasion for the present petitioners to
know about the dates fixed in the revision
in the years 2003 and 2004 and the
learned Member has erred in dismissing
the restoration application.

8. Refuting the submissions of
learned counsel for the petitioners, Sri
Jugal Kishore Gupta, learned counsel
appearing for the respondents submitted
that the petitioners themselves were not
978 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
sure about the date of the order dismissing
the case in default as from the perusal of
the record, two dates of knowledge have
been shown one 9.6.2007 and another
18.6.2007. Otherwise also, counsel was
appearing in the case and had been
seeking
time.
Further
there
is
no
explanation as to why counsel has not
appeared on the date fixed i.e. 19.7.2004
which was fixed in the presence of the
counsel of the revisionist on his request.
In
his
submissions,
the
restoration
application
has
been
filed
on
misconceived
ground,
therefore
no
infirmity can be attached with the
impugned order and the writ petition
deserves to be dismissed.

9. I have heard learned counsel for
the parties and perused the records.

10.

The
petitioners'
case
has
throughout been that they had no knowledge
about the pendency of the reference after the
death of their father. They have only come to
know about the order dismissing the case in
default only through Lekhpal on 9.6.2007
and immediately thereafter an application has
been filed for recall of the order dated
19.7.2004. The respondents neither in the
counter affidavit nor before the learned
Member Board of Revenue have come up
with the case that the petitioners' father had
not died in the year 2002. This is also not
their case that after the death of the father of
the
petitioners,
the
petitioners
were
substituted in the revision/reference. This has
also not been stated that the counsel who had
appeared in the revision was engaged by the
petitioners. In absence of these material, only
thing which can be presumed is that after the
death of the petitioners' father the counsel
who was appearing in the reference had been
appearing and perhaps he was also unaware
of the death of the father of the petitioners
and this cannot be improbable as the
petitioners' father was living in Village
Nison, District Kanpur Dehat and the
reference was pending at Lucknow. Since the
date of the death of the father of the
petitioners has not been denied, therefore
apparently the order dated 19.7.2004 has
been passed against the dead person and the
appearance of the counsel after the death of
the petitioners' father was unauthorized, as
the counsel was engaged by the father of the
petitioners and once the petitioners' father
died, the engagement ceases to operate and
the counsel had no authority to appear in the
case and even if he had appeared, his
appearance is of no avail as it is settled law
that the order against the dead person is
nullity.

11. The Apex Court in the case of
Leelawati Bai Vs. State of Bombay, A.I.R.
1957, Pae 521 has held that the order passed
against the dead person is a complete nullity.

12. In A.I.R. 2001, Supreme
Court, 2003, Amba Bai and others Vs.
Gopal and others, the Apex Court has
held as under:

"As the judgment in the Second
Appeal
was
passed
without
the
knowledge that the appellant had died, the
same being a judgment passed against the
dead person is a nullity."

13.

In
T.Gnanavel
and
T.S.Kanagaraj and another reported in
2009(75) ALR 515, the Apex Court has
taken the same view by observing as
under:-

"19. For the reasons aforesaid, we are of
the opinion that the High Court had rightly
intercepted the provision of Order XXII,
Rule 4(4) of the C.P.C. and accordingly held
2 All] Ram Prakash and Ors. Board of Revenue & Ors.
979
that the decree passed by the Trial Court
on20th of December, 2002, in O.S. No.3946
of 1999 was a nullity in the eye of law as the
defendant had died during the pendency of
the suit for specific performance of the
contract for sale and no exemption was
sought
at
the
instance
of
the
plaintiff/appellant to bring on record the heirs
and legal representatives of the defendant
before the judgment was pronounced."

14. This Court also in the cases of Aziz
Mohammad (Dead)through Lrs. And
another
Vs.
Deputy
Director
of
Consolidation, Allahabad and others,
2008 (104) RD, 470 and Raj Narain and
others
Vs.
Deputy
Director
of
Consolidation, Ghazipur and others,
2009(106) RD 98 and Subhash Chandra
and
another
vs.
Dy.
Director
of
Consolidation, Jaunpur and others 2012
(117) R.D. 413 has held that order passed
against the dead person is a nullity

15. Otherwise also, the purpose of
establishment of the Courts is to impart
the substantial justice to the parties and
not to scuttle the process of justice on
technicalities. The learned Member has
observed that the petitioners were not sure
about the date of the knowledge of the
order dated 19.7.2004 as at one place,
they have mentioned that they have come
to know about the order dated 19.7.2004
on 9.6.2007 and at another place they
have stated that they came to know the
same on 18.6.2007. In my opinion, this
will not substantially affect the merit of
the restoration application. So far as the
other observation of the learned Member
with regard to the knowledge of the date
fixed in the revision is concerned, it has
nowhere been recorded in the order that
the counsel who had appeared was
engaged by the petitioners and the
petitioners were party in the revision,
therefore the basis of presumption of the
knowledge
of
the
date
is
totally
misconceived.

16. The learned Member was dealing
with the restoration application and he ought
to have taken the liberal view, even if the
persons had knowledge about the dates and
committed default in arguing the case while
considering the restoration application and
deciding the same on merit. The Apex Court
in the case of Collector, Land Acquisition,
Anantnag & Anr. Vs. Mst. Katiji & Ors. (
JT 1987 (1) SC 537 = 1987 (2) SCR 387)
has held that the judiciary is respected not
on account of its power to legalise injustice
on technical grounds but because it is
capable of removing injustice and is
expected to do so.

17. In view of foregoing discussions,
orders impugned cannot be sustained in the
eye of law and the same deserves to be
quashed. The writ petition succeeds and is
allowed. The orders dated 6.8.2010 as well as
19.7.2004 are hereby quashed. The reference
is restored to its original number. Since the
reference is very old, the learned Member
Board of Revenue, Lucknow shall decide the
aforesaid reference expeditiously if possible
within six months from the date of receipt of
certified copy of the order of this Court
without
granting
any
unnecessary
adjournments to the learned counsel for the
parties.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.07.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Revision No. 1053 of 2010