1 1 S.B. CIVIL MISC. APPLICATION NO.6/2008 IN S.B. CIVIL WRIT PETITION NO.1649/2006 State of Rajasthan Vs. Durgadas & Ors. Date of Order :: 20th March 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Sudhir Tak,for the petitioners. Mr.M.R.Choudhary,for the respondents. .... Writ Petition No.1649/2006 as filed by the petitioners was ordered to be consigned to record on 02.01.2008 for the reason that on the notices sent to the respondent No.1, report was received about his demise; and despite repeated opportunities, no steps were taken by the petitioners for substitution of his legal representatives with the following order,- “On the notices sent to respondent No.1 the report was received to the effect that the said respondent had expired as back as on 11.08.2004. For the steps in relation to the deceased respondent No.1 having not been taken, the matter was placed before the Court on 14.08.2007 and was adjourned for two weeks, as prayed. Steps having yet not been taken, the matter was again placed before the Court on 05.09.2007; and, at request, learned Dy.G.A. was granted last opportunity to take requisite steps within three weeks. Steps have yet not been taken. Though the office has placed the matter with a wrong report that notices have not been filed but the fact remains that steps in relation to the -2- deceased respondent No.1 have not been taken despite repeated opportunities; and even after last opportunity granted as back as on 05.09.2007. The petition cannot be proceeded against the dead person and, for want of substitution of legal representatives, is required to be consigned to record. The petition be consigned to record.” Thereafter, the present application was moved by the petitioners on 29.01.2008 stating the names of the legal representatives of the deceased respondent No.1 and for directions for alteration of the cause title. On 25.02.2008, notices on the application were ordered to be issued to the proposed legal representatives. After appearance on behalf of the proposed legal representatives, a fact significant was noticed from the submissions as made before the Court that the respondent- petitioner Durga Das admittedly expired on 11.08.2004 whereas the impugned order was passed by the Tribunal concerned on the appeal taken by the said deceased Durga Das on 14.06.2005. It is not borne out if any steps were taken for substitution of the legal representatives of the said appellant Durga Das before the Tribunal concerned and thus, the very competence of the appeal and validity of the order dated 14.06.2005 would remain in question. On 04.03.2009, the learned counsel for the proposed legal representatives prayed for and was granted time to -3- complete his instructions. The learned counsel today submits that as per his instructions, the order was reserved in the said appeal by the Tribunal while the same was considered with connected cases in the year 2005. It is not the submission that the legal representatives of the deceased appellant Durga Das were substituted before the Tribunal concerned. In the aforesaid view of the matter, interest of justice requires that this application be allowed and while recalling the order dated 02.01.2008, the named legal representatives be substituted in place of the deceased respondent No.1 while leaving open the other aspects of the matter to be considered in the main writ petition. Accordingly, this misc. application is allowed; and the dated 02.01.2008 is recalled. The said writ petition, CWP No.1649/2006, shall stand restored to its number; and the named legal representatives shall stand substituted as respondents in place of the deceased respondent No.1. Amended cause title in conformity with the requirements of this order shall be filed by the petitioners in the said writ petition within a week from today and office shall proceed with the said writ petition. (DINESH MAHESHWARI), J. s.soni