IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.444 of 2008 RAMESHWAR PRASAD & ANR Versus THE STATE OF BIHAR & ORS ----------- For the Appellants : Mr. Md. Waliur Rahman, Advocate For Respondent Nos. 1 to 4: Mr. Sanjay Kumar No.1, Government Pleader-XIV For Respondent Nos. 5 to 7: Mr. Sudhir Kumar, Advocate ---------------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal --------- Dated, the 18th September, 2008. Appeal is admitted. 2. Mr. Sanjay Kumar No.1, Government Pleader- XIV waives service for respondent nos. 1 to 4. Mr. Sudhir Kumar, Advocate waives service for respondent nos. 5 to 7. 3. Looking to the controversy raised in the appeal, we proceed to decide the appeal finally at this stage itself. 4. Inter alia, the contention of the counsel for the appellants (respondent nos. 5 and 6 in the writ petition) is that the original petitioner, Ram Lakhan Prasad, was already dead on 1st May, 2008, when the writ petition came to be disposed of by the Single Judge. 5. The respondent nos. 5 to 7 herein are the legal heirs of the deceased writ petitioner. The counsel for the respondent nos. 5 to 7 does not dispute that the sole petitioner died on 24th March, 2008. He, however, submits that an application for substitution (I.A. - 2 - No. 2312 of 2008) was made by the legal heirs on 21st April, 2008. By mere application, substitution does not take place. There has to be an order of the Court. Unfortunately, the attention of the Single Judge was not brought to the application (I.A. No. 2312 of 2008) and the order came to be passed in favour of dead person. The impugned order cannot be sustained, as no order can be passed in favour of a dead person. 6. Without going into the merits of the diverse contentions, raised by the counsel for the parties, we are of the considered view that the writ petition must be restored to the file of the Single Judge. 7. We accordingly disposed of the appeal by the following order: - (i) The order dated 1st May, 2008 is quashed and set aside. (ii) Writ petition (C.W.J.C. No. 4560 of 2005) is restored to the file of the Single Judge. (iii) The Single Judge shall first consider the application (I.A. No.2312 of 2008) and pass an appropriate order thereon and thereafter consider the writ petition afresh. 8. No order as to cost. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-