'No Delay Is Too Long For Court To Correct Its Own Wrong': JKL High Court On Inadvertent Proceedings & Judgment Against A Dead Man

"No delay is too long/late for the Court to do course correction for its own wrong/mistake/error so as to undo the effects and restore the justice...Court only enhances its prestige when it acknowledges and amends any wrong/mistake/error, be it advertent/inadvertent on its part in the course of a legal proceedings causing prejudice to a litigant in the lis before it," a Division bench of Justices Rajnesh Oswal and Rahul Bharti said.

The Court was dealing with the appeals preferred by successors of one Haji Malla Mohammed, who had died in 2002. They were aggrieved by the fact that the mutation entry of two properties, that were decided by the Special Tribunal in Haji Malla's favour (in proceedings initiated by one Ali Najar (also deceased)), came to be set aside vide order that was passed by a Single Bench of the High Court subsequent to Haji Malla's demise.

The High Court noted that several notices including newspaper publications were issued in Haji Malla's name and the Single Bench then proceeded by a purported reference to "deemed service". As a consequence, the Tribunal's order came to be set aside with a direction to consider the issue afresh. Thereafter, the Tribunal consigned the matter to records, upon an understanding that Haji Malla did not come forward to pursue the matter. A writ petition preferred by successors of Haji Malla for recall of orders was also dismissed by the High Court.

These developments led to the present case.

At the outset, the High Court said that proceeding against a dead man, under a wrong belief that he is alive, is a "glaring procedural irregularity of substantial nature" which goes to the very root of the adjudication. It observed,

"When we apprise ourselves as to the end situation which came to take place as a consequence of judgment dated 3rd February, 2015 passed by the learned Single Bench in disposing of OWP no. 2982/1992 by setting aside the judgment dated 22.10.1992 of the J&K Special Tribunal and reviving the revision petition but which further led to dismissal of the revision petition of the deceased Haji Malla Mohammed by the J&K Special Tribunal, we find that grave injustice had occasioned with respect to the legal cause of the deceased Haji Malla Mohammed and the adverse consequence of which came to befall upon his legal heirs/representatives who being the appellants herein and as such they were well within their right to complain to none else than this Court by whose omission and error unwarranted course of events and eventuality came to be set into effect."

Accordingly, the Court set aside the orders and judgment passed after Haji Malla's demise and restored the matter back to an appropriate stage, with direction to bring on record the legal representatives of the parties.

Case Title : Ali Mohammad & Ors Vs State of J&K

Citation : 2022 LiveLaw (JKL) 237

Coram : Justice Rajnesh Oswal & Justice Rahul Bharti.

Counsel For Petitioner : Mr T. H Khawaja

Counsel For Respondent : Mr S A Makroo Sr Adv

Click Here To Read/Download Judgment