Himachal Pradesh High Court
RSA/152/2017 on 28 December 2017
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HON’BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No.152 of 2017 and CMP(M) No.450 of 2017
Decided on: December 28, 2017
Smt. Leela Devi & Ors.
.….......Appellants
Vesus Sh. Samay Singh & Ors. .....….Respondents Coarm The Hon’ble Mr. Justice Dharam Chand Chaudhary, J. Whether approved for reporting?1 For the appellants : Mr. R.K. Gautam, Sr. Advocate with Ms. Megha Kapur Gautam, Advocate.
For respondents : Mr. Ramakant Sharma, Sr. Advocate No.1 to 5, 8 to 16, with Mr. Basant Pal Thakur, Advocate. 18, 19 & 22.
None for respondents No.20, 21 and 24(i) to 24(iii).
Dharam Chand Chaudhary, J. (Oral).
Out of unserved respondents, respondent No.17 is duly served, whereas remaining respondents No.6, 7 & 23 are still unserved.
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2. In the nature of the order this Court propose to pass in this matter the service of respondents was not required because, admittedly, appellant No.1 Shri Balwant Singh in the lower appellate Court has expired on 26.11.2013 during the pendency of the appeal there and the same was disposed of vide impugned judgment without taking note of an application filed for substitution of his legal representatives. The submissions to this effect finds mention in Para-2 of the application.
3. Being so, the impugned judgment having been passed against a dead person is nullity, hence, not legally sustainable. The same, as such, is set aside and the case is remanded to learned lower appellate Court for fresh disposal in accordance with law. Learned lower appellate Court shall consider the application already filed and decide the questions of abatement of appeal, if any, and substitution of legal representatives of deceased-appellant Balwant Singh, who was one of the defendants in the trial Court and thereafter, to proceed further in the case on merits. The parties through learned counsel representing them are directed to appear before learned lower appellate Court on 18th January, 2018. The appeal and application stand disposed of, so also pending application(s), if any.
(Dharam Chand Chaudhary) December 28, 2017
Judge (Yashwant)