1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Civil Application [CAW] No. 281 of 2011 AND Civil Application [CAW] No. 288 of 2011 IN Writ Petition No. 2707 of 1998 [decided] [Ratanchand Gokulchand Sharma & another Vs. State of Maharashtra & two others] WITH Civil Application [CAW] No. 282 of 2011 AND Civil Application [CAW] No. 289 of 2011 IN Writ Petition No. 2825 of 1998 [decided] [Gabru Tulshiram Rathod & others Vs. Fatema Begum Mirza Hamid Beg & others] WITH Civil Application [CAW] No. 283 of 2011 AND Civil Application [CAW] No. 290 of 2011 IN Writ Petition No. 2881 of 1998 [decided] [Laxmanrao Mahadeorao Chandrane Vs. State of Mah. & others] WITH Civil Application [CAW] No. 284 of 2011 AND Civil Application [CAW] No. 291 of 2011 IN Writ Petition No. 2882 of 1998 [decided] [Nanaji Pochanna Chilgalwar Vs. State of Mah. & others] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Civil Application No. 281 of 2011 : Mr. S.R. Deshpande, Adv., for applicant. Mr. Rai, Adv., for petitioners. Mrs. A. Taiwade, AGP for respondent no.1. ----- Civil Application No. 288 of 2011 : 2 Mrs. Taiwade, AGP for Applicant-State. ----- Civil Application No. 282 of 2011 : Mr. S.R. Deshpande, Adv., for applicant. Mr. A.S. Manohar, Adv., for respondent nos. 1 and 2. Mrs. A. Taiwade, AGP for respondent nos. 3 to 5. ----- Civil Application No. 289 of 2011 : Mrs. Taiwade, AGP for Applicant-State. Mr. A.S. Manohar, Adv., for respondent nos. 1 and 2. ----- Civil Application No. 283 of 2011 : Mr. S.R. Deshpande, Adv., for applicant. Mr. Rai, Adv., for petitioner. Mrs. A. Taiwade, AGP for respondent no.1. ----- Civil Application No. 290 of 2011 : Mrs. Taiwade, AGP for Applicant-State. ----- Civil Application No. 284 of 2011 : Mr. S.R. Deshpande, Adv., for applicant. Mr. Rai, Adv., for petitioner. Mrs. A. Taiwade, AGP for respondent no.1. ----- Civil Application No. 291 of 2011 : Mrs. Taiwade, AGP for Applicant-State. ----- CORAM : B.P. DHARMADHIKARI, J. DATE : 09th September, 2011. 01. Heard learned Adv. Mr. S.R. Deshpande and learned AGP Mrs. Taiwade for the respective applicants, who are respondents in the Writ Petitions decided by a common Judgment on 15th October, 2010, learned Adv. Mr. A.S. Manohar for respondent nos.1 and 2 in Civil Application No. 282 of 2011 which arises out of Writ Petition 3 No. 2825 of 1998, and learned Adv. Mr. Rai for petitioners in other Civil Applications arising out of other three Writ Petitions. 02. Mr. Deshpande has contended that in all Writ Petitions, respondent no.2 – Mirza Hamid Baig was one of the respondents and he had expired on 6th June, 2010. His death was not pointed out to this Court by petitioners and no steps were taken to bring his legal heirs on record. Hence, the Judgment delivered on 15th October, 2010 without giving any opportunity to legal heirs of said respondent and against a dead person is nullity. He is placing reliance upon a reported Judgment of learned Single Judge of Kerala High Court in case of P.M.M. Pillayathiri Amma Vs. K. Lakshmi Amma & others [AIR 1967 Kerala 135 (V. 54 C 55)]. 03. Learned AGP points out that State Govt. is required to move an application, as, in the Judgment dated 15th October, 2010, the Surplus Land Determination Tribunal [SLDT] was directed to decide the matters after remand by 31st January, 2011, and that time limit could not be followed. She is pointing out other difficulties and also pendency of these applications as the reason. Prayer, therefore, is to extend time reasonably to comply with that judgment. 04. Learned Advs. Mr. Manohar and Mr. Rai are opposing the contention that a decree is nullity. According to them, the Judgment of learned Single Judge of Kerala High Court has 4 no application. However, they state that as deceased was not heard, the SLDT may be asked to adjudicate all points afresh within a specified time. 05. Facts in the present matters show that in respective Writ Petitions filed by petitioners, deceased respondent no.2 was served and he chose not to appear. Petitions were filed in 1998 and he has expired on 6th June, 2010, i.e., after about twelve years. Thus, he was already not participating and not being represented, and had chosen not to oppose the petitions at the time of his death. Perusal of Judgment of learned Single Judge of Kerala High Court [cited supra] reveals that there, in a suit instituted vide Original Suit No. 285 of 1960 for recovery of amounts, the notices were issued and suit came up for first hearing on 22nd June, 1960. The defendant therein had expired on 20th June, 1960, i.e., two days prior to first date of appearance before the Court. The plaintiff as also the Court were not aware of the death and, therefore, on very first date of appearance, after marking him absent, ex parte decree came to be passed. It is in this situation that the request of his legal heirs has been considered. 06. Facts in present matters are different and question really involved is whether a person, who has chosen not to respond, and therefore, prefers to be proceeded against ex parte, can be placed in same situation and his 5 legal heirs can be permitted to contend that decree suffered by him is nullity? The judgment of Kerala High Court does not answer that question. However, the question need not detain this Court in present matters. 07. In view of the fair statement made by respective counsel for the petitioners, it is made clear that SLDT shall consider the controversy afresh within a period of three months from today after giving parties necessary opportunity, uninfluenced by any observations and findings recorded by this Court in its Judgment dated 15th October, 2010. 08. In view of this clarification, the applications under Section 151 of Civil Procedure Code are disposed of. 09. Similarly, Civil Applications filed by respondent-State are also granted and time to decide is extended till 31st December, 2011. 10. Parties are directed to appear before SLDT, Kelapur, on 20th September, 2011 and abide by its further instructions in the matter. Judge |Hedau| 6