IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.1012 OF 2010 IN CIVIL WRIT JURISDICTION CASE NO.11578 OF 2000 WITH INTERLOCUTORY APPLICATION NO.5560 OF 2010 WITH INTERLOCUTORY APPLICATION NO.5561 OF 2010 ============================================= MD.SHAFEED MIAN - Appellant Versus THE STATE OF BIHAR & ORS - Respondent(s) ============================================== Appearance : For the Appellant : Mr. Alok Kumar Sinha, Advocate For the Respondent: Mr. Anwar Karim, AC to SC V. ============================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 4. 07.9.2010. Reg: I.A.No.5560 of 2010. This application under section 5 of the Limitation Act is filed by the appellant for condonation of delay of 4 years and 3 days occurred in filing the Letters Patent Appeal. It is the claim of the appellant that he did not receive the notice of the writ petition. The writ petition proceeded ex parte against the appellant. He came to know about the impugned judgment only when the writ petitioner (respondent no.4 herein) applied for mutation in his name. Therefore, the delay. We have perused the record of the writ petition. It appears that notice was issued to the present appellant the respondent no.4 2 in the writ petition under registered cover. The registered cover was returned undelivered without noting by the postal department. Nevertheless, the registry has made a note that the respondent no.4 had refused to receive the notice. Thus, the learned Single Judge proceeded on the premise that the respondent no.4 was duly served with the notice though actually he was not served. In the aforesaid circumstances, the delay is condoned. Interim Application No.5560 of 2010 stands disposed of. Reg: Letters Patent Appeal No.1012 of 2010. This appeal arises from the judgment and order dated 21st April 2006 passed by the learned Single Judge in C.W.J.C.No.11578 of 2000. The grievance of the appellant is on two counts. First, the appellant respondent no.4 in the writ petition did not receive the notice of the writ petition. Second, pending the writ petition the sole writ petitioner Brahamdeo Yadav passed away on 17th February 2003. His legal representative the son Pradeep Kumar Yadav had filed application for substitution. The same was not decided. The writ petition was allowed in favour of the sole writ petitioner who had died pending the petition. In our opinion, the impugned judgment passed in favour of a dead man is a nullity. Besides, evidently the writ petition 3 proceeded ex parte against the appellant. For the aforesaid reasons, the appeal is allowed. The impugned judgment and order dated 21st April 2006 passed by the learned Single Judge in C.W.J.C.No.11578 of 2000 is set aside. C.W.J.C.No.11578 of 2000 is remitted with I.A.No.5323 of 2004 to the learned Single Judge for hearing and decision afresh. The appellant-respondent no.4 in the writ petition will file his appearance and the counter affidavit within six weeks from today. No formal notice will be issued to the respondent no.4. Interlocutory Application Nos. 5561 of 2010 stands disposed of. ahk (R. M. Doshit, CJ) (Jyoti Saran, J)