OMPRAKASH vs STATE OF CHHATTISGARH

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CGHC010231722021 2026:CGHC:45680

AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 3878 of 2021
Reserved on 1.10.2026
Pronounced on 29 . 10.2026
SHYNA
AJAY
Digitally signed
by SHYNA AJAY
Date:
2026.10.29
18:44:11 +0530
Omprakash S/o Dayalu, Aged About 40 Years, R/o Village Mudpar,
District Durg Chhattisgarh
... Petitioner(s)
versus
1 - State Of Chhattisgarh Through Secretary, Department Of Revenue,
Mahanadi Bhawan, Mantralaya, Atal Nagar, New Raipur District Raipur
Chhattisgarh
2 Commissioner, Durg Division Durg Chhattisgarh
3 Collector, Durg District Durg Chhattisgarh
4 Sub Divisional Officer (Revenue) Dhamdha, District Durg
Chhattisgarh
5 Tahsildar Tahsil Dhamdha, District Durg Chhattisgarh
6 Nayab Tahsildar Up-Tahsil Ahiwara, District Durg Chhattisgarh

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7 - Vijay Choubey S/o Lakhan Lal Choubey Aged About 55 Years R/o
Nardha, Tahsil Dhamdha, District Durg Chhattisgarh
... Respondent(s)
(Cause Title downloaded from CIS Periphery)
For Petitioner(s) : Mr. Mirza Hafeez Baig, Advocate
For Respondent/
:
Mr. Anway Tiwari, Panel Lawyer
State
For Respondent
:
Mr. Kabeer Kalwani, Advocate
No.7
SB: Hon’ble Mr. Justice Amitendra Kishore Prasad
C A V Order
1. The petitioner is questioning the legality and validity of the order
dated 23.01.2020 passed by the Commissioner, Durg Division,
Durg, whereby the Commissioner while entertaining Revenue
Revision No.122 A-6 Year 2018-19, has set-aside the orders
dated 23.2.2019 and 28.2.2019 passed by the Naib Tahsildar,
Ahiwara and remanded the matter to the Naib Tahsildar with
directions to (i) comply with the earlier order dated 26.07.2018
passed by the concerned Commissioner (ii) afford a proper
opportunity of hearing to the parties after taking documentary and
oral evidence on record (iii) consider the objections raised by the
Revision Petitioner; and (iv) pass appropriate orders on merits in
accordance with law . The petitioner, who is the son of Dayalu
(respondent before the concerned Commissioner in the order
dated 23.01.2020) has filed this petition inter alia challenging the

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impugned order of remand on the ground of maintainability. It is
contended that against the order passed by the Naib Tahsildar, a
Revenue Appeal lay before the SDO (R). However, instead of
filing an appeal, Respondent No.7 directly filed a revision before
the Commissioner, which was not maintainable .
2. The father of the petitioner had filed an application under Order 7
Rule 11 of the CPC for rejection of the proceedings before the
Commissioner pleading that the Revision was barred as the
concerned respondent failed to exhaust the appeal provision
under Section 44(1) of the Chhattisgarh Land Revenue Code (in
short “the Code”). However, the Commissioner did not consider
the application in accordance with law and proceeded to pass the
order of remand, which is ex facie illegal and without jurisdiction.
Hence, after the death of his father, the petitioner stepped into his
shoes and preferred this petition, seeking the following reliefs :
(i) That, this Hon'ble Court may kindly be pleased
to set-aside impugned orders dated 23.01.2020
(Annexure P-1) and dated 12.08.2021 (Annexure
P-2) passed by the respondent no. 2, in the
interest of justice.
(ii) Any other relief which may be suitable in the
facts and circumstances of the case, may also be
granted.
3. The facts of the case, as set-forth by the petitioner, are that the
father of the petitioner had filed Case No. 15 A-6(A) Year 2014–

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2015 against respondent No. 7- Vijay Choubey, before the Naib
Tahsildar, Ahiwara. The Naib Tahsildar, Ahiwara, after affording
sufficient opportunity of hearing to both the parties and examining
the documents produced by them in support of their claims,
passed a final order dated 23.02.2019 on merits. Respondent No.
7 being aggrieved by the said order dated 23.02.2019 and
28.2.2019, directly preferred Revenue Revision Case No. 122 A-6
Year 2018–2019 before Respondent No. 2 – the Commissioner,
Durg Division, Durg (CG), instead of filing a Revenue Appeal
before Respondent No. 4- Sub Divisional Officer (Revenue),
Damdha, District Durg (CG). The father of the petitioner (late
Dayalu) filed an application under Order 7 Rule 11 of the CPC
before Respondent No. 2 challenging the maintainability of the
revision petition. During pendency of the proceedings, the father
of the petitioner passed away on 14.01.2020 due to illness.
Despite the demise of the sole contesting party, Respondent No.
2 proceeded to pass the final order on 23.01.2020 without
substituting the legal heirs or providing them an opportunity of
hearing, rendering the order a nullity in the eyes of the law as it
was passed against a deceased person. The order dated
23.01.2020 was never served upon or communicated to the
petitioner or the other legal heirs. Immediately upon coming to
know of the said order and obtaining a certified copy thereof, the
petitioner filed Review Petition Case No. 17 B-121 Year 2020–21
before Respondent No. 2 to set aside the order on the ground that
it was passed against a deceased party. However, Respondent

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No. 2, without obtaining the requisite sanction from the higher
authority/Board of Revenue and without affording a proper
opportunity of hearing to both parties, confirmed its earlier order
dated 23.01.2020 vide the impugned order dated 12.08.2021.
Hence, this Petition.
4. Mr. Mirza Hafeez Baig, learned counsel for the petitioner submits
that the impugned order dated 23.01.2020 and the subsequent
order dated 12.08.2021 passed by the Commissioner are
palpably illegal, arbitrary and unsustainable in law. He submits
that firstly, the impugned order was passed against a deceased
person i.e. Late Dayalu (father of the petitioner), who had passed
away on 14.01.2020, prior to passing of the said order. Thus, an
order passed against a dead person, without bringing his legal
representatives on record, is a nullity in the eyes of law. Secondly,
while the Revenue Case was pending before the learned
Commissioner, the father of the petitioner was proceeded against
ex-parte through the subsequent order sheets dated 10.10.2019
and 24.10.2019. Moreover, on 24.10.2019, the matter was heard
finally and reserved for final orders, to be pronounced on
14.11.2019. This vital aspect was completely ignored by the
Commissioner while passing the impugned order of remand,
which makes the proceedings per se illegal and in violation of the
principles of natural justice. To buttress this submission, learned
counsel places reliance upon the judgment of the High Court of
Madhya Pradesh passed in Sarja Bai & Others Vs. Prasuti Bai
& Others (1984 R.N.333) , wherein it has been categorically held

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that an order passed against a deceased person without
substituting his legal representative(s) is invalid and non-est.
Thirdly, Respondent No. 7 directly challenged an appealable
order by way of a Revision, which was not maintainable in view of
the alternative remedy of a First Appeal available under Section
44(1) of the Code. Therefore, since the impugned order suffers
from lack of jurisdiction, non-joinder of necessary legal
representatives and unmaintainability, it is an absolute nullity and
is liable to be set aside.
5. On the other hand, Mr. Anway Tiwari, learned counsel appearing
for the State as well as Mr. Kabir Kalwani, learned counsel for
Respondent No. 7 submit that the impugned order(s) is perfectly
just, legal and proper and does not call for any interference by this
Court. They submit that Late Dayalu, father of the petitioner, filed
an application for correction of revenue records before the
Tahsildar, Ahiwara, which was allowed vide order dated
11.07.2016. The said order was initially challenged in Revision
before the Collector, Durg, which came to be dismissed vide order
dated 26.11.2016. Thereafter, the said order of the Collector was
assailed before the Commissioner, Durg, in exercise of revisional
jurisdiction. The learned Commissioner allowed the revision vide
order dated 26.7.2018 and remanded the matter to the Tahsildar,
Ahiwara, with a direction to decide the objection of Respondent
No. 7 afresh after affording both parties an opportunity to adduce
oral and documentary evidence and thereafter, to pass an
appropriate order in accordance with law. They submit that in

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pursuance of the order of remand dated 26.07.2018, the
Tahsildar, Ahiwara, again allowed the application for correction of
revenue records filed by Late Dayalu vide orders dated
23.02.2019 and 28.02.2019. Aggrieved thereby, Respondent No.
7 preferred a Revision before the Commissioner, Durg. During the
pendency of these proceedings, Late Dayalu was very much alive
and duly represented by his counsel. During the course of
proceedings, as the matter could not be heard on 10.10.2019, it
was adjourned to 24.10.2019 for final hearing. On 24.10.2019,
the final arguments were effectively concluded and the matter was
reserved for pronouncement of order on 14.11.2019. He submits
that on both the dates (on 10.10.2019 & 24.10.2019), no
appearance was marked on behalf of father of the petitioner.
However, on 14.11.2019, final order could not be passed due to
administrative exigencies. Subsequently, Late Dayalu passed
away on 14.01.2020. However, as the factum of his death was not
brought to the notice of the Commissioner by either party, the
Commissioner proceeded to pronounce the final order on
23.01.2020. They submit that the Review Petition filed thereafter
by the present petitioner was dismissed vide order dated
12.8.2021. Learned counsel further submit that no order on merits
determining rights inter se was passed by the learned
Commissioner against the deceased party. On the contrary, the
Commissioner only set aside the orders of the Tahsildar dated
23.02.2019 and 28.02.2019 on the ground of denial of adequate
opportunity of hearing and remanded the matter to the concerned

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Tahsildar with directions to afford full opportunity to both the
parties to adduce oral and documentary evidence and decide the
matter afresh on merits in accordance with law. They submit that
since no adverse finding or order on merits was passed against
any person dead or alive and the matter has merely been
relegated to the original authority for fresh adjudication in
accordance with the principles of natural justice, the impugned
order cannot be termed a nullity. In view of the above, the petition,
being devoid of merit, is liable to be dismissed.
6. I have heard learned counsel for the parties and have also
perused the documents annexed with the petition.
7.
Evidently, by the impugned order, the matter has been remanded
to the concerned Tahsildar for deciding the application for
mutation afresh, after affording due opportunity of hearing to the
parties and permitting them to adduce oral as well as
documentary evidence and thereafter to pass appropriate order in
accordance with law. So far as the objection regarding the
availability of an alternative statutory remedy is concerned, the
existence of an alternative remedy is a rule of discretion and not
an absolute bar, particularly where the Court seeks to address a
failure of natural justice or where relegating the parties to an
alternative forum after long pending litigation would cause grave
prejudice. In the present case, the dispute has already traversed
through four to five rounds of litigation. Initially, the application
was filed before the Tahsildar, thereafter assailed before the

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Collector and subsequently carried to the Commissioner, where
an order of remand was passed earlier. Upon fresh decision by
the Tahsildar, the matter was again challenged before the
Commissioner, who, after due consideration of all legal aspects,
remanded the matter for fresh adjudication. In these
circumstances, relegating the parties to an alternative remedy at
this distance of time is not justified, particularly when the matter
has been pending before this Court since 22.09.2021 and nearly
five years have elapsed. Furthermore, the impugned order is only
an order of remand and does not determine the substantive rights
of the parties on merits.
8.
In Harbanslal Sahnia & Another Vs. Indian Oil Corpn. Ltd. &
Others reported in (2003) 2 SCC 107 , the Hon’ble Supreme Court
categorically held that the rule of exclusion of jurisdiction due to
the availability of an alternative remedy is a rule of discretion and
not one of compulsion. The Hon'ble Supreme Court affirmed that
an alternative remedy does not operate as a bar where there is a
failure of the principles of natural justice. In the instant case, the
record demonstrates a clear infraction of the principles of natural
justice, as the concerned parties were denied a reasonable
opportunity of being heard, thereby necessitating the order of
remand. In that view of the matter, the objection raised by the
petitioner that the Commissioner ought not to have entertained the
subject application is devoid of merit and is not in accordance with
law.

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9. So far as the death of Late Dayalu (father of the petitioner) is
concerned, it is undisputed that the matter was reserved for final
order after conclusion of hearing on 24.10.2019, to be pronounced
on 14.11.2019. Subsequently, late Dayalu passed away on
14.01.2020, an event which could not immediately be brought to
the notice of the Commissioner. Ultimately, eight days thereafter,
the final order was pronounced on 23.01.2020. Since the order
was not an adjudication on merits, but a procedural order of
remand passed to ensure that both parties are granted an
opportunity to adduce oral and documentary evidence, no
prejudice was caused to either side.
10.
In N.P. Thirugnanam (Dead by LRs.) Vs. R. Jagan Mohan Rao
and others, reported in (1995) 5 SCC 115 , the Hon’ble Supreme
Court specifically considered whether proceedings abate on
account of the death of a party occurring between the conclusion
of hearing and the pronouncement of judgment, holding in
Paragraph 3 as under:
3. Rule 6 of Order 22 provides that:
“6. No abatement by reason of death after hearing.—
Notwithstanding anything contained in the foregoing
rules, whether the cause of action survives or not,
there shall be no abatement by reason of the death of
either party between the conclusion of the hearing and
the pronouncing of the judgment, but judgment may in
such case be pronounced notwithstanding the death
and shall have the same force and effect as if it had
been pronounced before the death took place.”
In the face of the explicit language in Rule 6 of Order
22, there can be no abatement by reason of the death

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of any party between the conclusion of the hearing and
the pronouncement of the judgment. It may be
pronounced, notwithstanding the death, and shall have
the same force and effect as if the judgment had been
pronounced before the death took place. Therefore,
the contention that the judgment and decree of the
appellate court is a nullity is devoid of substance.
11.
Further, in the matter of Vikram Bhalchandra Ghongade Vs.
State of Maharashtra and Others reported in 2025 SCC OnLine
2360, the Hon’ble Supreme Court reiterated this settled principle,
observing in Paragraph 11 as under:
11. It is not in dispute that the suit filed by the predecessors
of the appellant was decreed on 14.08.2006. The trial
Court declared the original plaintiffs as owners of the suit
land that had been allotted to Mr. Arjun Thakre. The
plaintiffs were held entitled to receive possession of the
said lands. The subsequent allotment of the same land in
favour of defendant Nos. 3 to 5 was held to be illegal.
The defendant No. 3 did not choose to challenge this
decree. It is only the defendant Nos. 4 and 5, who
preferred an appeal under Section 96 of the Code.
During pendency of that appeal, the defendant No. 4
expired on 27.10.2006, while the defendant No. 5
expired on 20.09.2010. The record indicates that the
appeal was heard on 28.09.2010. As per the provisions
of Order XXII Rule 6 of the Code, if a party expires
between the conclusion of hearing and pronouncement
of the judgment, the same does not result in abatement
of such proceedings and the judgment on being
pronounced, would have the same force and effect as if
it had been pronounced before the death of such party
took place. In view of the fact that the defendant Nos. 4
and 5 had died prior to the appeal being heard on

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28.09.2010, it is evident that the proceedings in the said
appeal are not saved by the provisions of Order XXII
Rule 6 of the Code. In effect, the appeal was decided
notwithstanding the death of both the appellants, who
had preferred the appeal.
12. In the light of the aforesaid authoritative pronouncements, this
Court is of the considered view that the proceedings neither
abated nor can the impugned order(s) be held to be null and void
merely due to the death of the father of the petitioner prior to
pronouncement of order. The order would have had the same
force and effect as if it had been pronounced before the death of
the father of the petitioner. Even otherwise, a perusal of the record
shows that no adverse order determining substantive rights either
in favour of or against the petitioner was passed. The impugned
order only remands the matter to the concerned Tahsildar to
decide the matter afresh on merits, after granting full opportunity
of hearing and liberty to adduce oral and documentary evidence to
all parties. Thus, on this count as well, the impugned order(s)
suffers from no legal infirmity.
13. In view of the foregoing discussion, this Court is of the opinion
that the Commissioner committed no illegality in remanding the
matter vide the impugned order. However, considering that an
interim stay of the order dated 23.01.2020, was granted by this
Court on 23.9.2021 and the matter has remained pending here for
over five years, it is in the interest of justice that the proceedings
before the revenue authority be concluded expeditiously.

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14. Accordingly, the Petitioner and Respondent No. 7 are directed to
appear before the concerned Tahsildar / Naib Tahsildar, Ahiwara
on 25.11.2026 . The Tahsildar, Ahiwara is directed to hear the
matter afresh after affording reasonable opportunity of hearing to
both the parties, granting them opportunity to adduce oral and
documentary evidence and thereafter pass appropriate orders on
merits in accordance with law, preferably within a period of 90
days from the date of receipt of a certified copy of this order.
15. It is made clear that this Court has not expressed any opinion on
the merits of the case and the Tahsildar/Naib Tahsildar, Ahiwara,
would be at liberty to decide the matter independently in
accordance with law.
16.
Till the final decision is taken by the Tahsildar/Naib Tahsildar,
Ahiwara within the stipulated period of 90 days, the interim order
dated 23.9.2021 passed by this Court with respect to the subject
property, shall continue to operate.
17. With the aforesaid directions/observations, the Writ Petition
stands finally disposed of.
Sd/-
(Amitendra Kishore Prasad)
Judge
Shyna Ajay

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WPC No. 3878 of 2021
HEAD NOTE
Death of a party occurring between the conclusion of hearing and
pronouncement of judgment, does not cause abatement of the suit or
appellate proceedings. A judgment pronounced under such
circumstances operates with full force and effect as if it had been
pronounced prior to the demise of the party.