Patna High Court
Nuzhat Naz vs Sabiha Naseem on 17 April, 2026
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1427 of 2024
In
Civil Writ Jurisdiction Case No.2505 of 2015
======================================================
Nuzhat Naz Wife of Late Ashraf Imam, Resident of Mohalla - Line Bazar
Chowk, P.S. - Khazanchi Haat, District - Purnia.
... ... Petitioner/s
Versus
1.1. Dr. Husna Ara Wife of Md. Yasir Naseem, Resident of Mohalla - Naugharwa
1. Sultanganj, P.O. - Mahendru, P.S. - Sultanganj, District - Patna. Presently
resident of P-102, Flat No. 103, 1st Floor Philwan Chowk, Betla House,
Okhla Jamia Nagar, New Delhi - 110025.
1.1. Name not known (Minor) D/o Md. Yasir Naseem Through her mother Dr.
2. Husna Ara, Resident of Mohalla - Naugharwa Sultanganj, P.O. - Mahendru,
P.S. - Sultanganj, District - Patna. Presently resident of P-102, Flat No. 103,
1st Floor Philwan Chowk, Betla House, Okhla Jamia Nagar, New Delhi -
110025.
1.2. Faisal Naseem Son of late Sabiha Naseem and Late Naseem Akhtar,
Resident of Mohalla - Naugharwa Sultanganj, P.O. - Mahendru, P.S. -
Sultanganj, District- Patna.
1.3. Md. Kashif Naseem, Son of Late Sabiha Naseem and Late Naseem Akhtar,
Resident of Mohalla - Naugharwa Sultanganj, P.O. - Mahendru, P.S. -
Sultanganj, District- Patna.
1.4. Huma Naseem D/o late Sabiha Naseem and Late Naseem Akhtar, Wife of
Md. Ali Hussain, Resident of ETIA-E-ABBAS, narkatghat, Painthan Toli,
Alamganj, Patna - 800007.
2. Mrs. Sabina Mustafa Wife of Sarful Haque, D/o Late Mustafa Mallick,
Resident at City Centre Complex, Bari Road, Patna.
3. Miss. Rubina Mustafa D/o late. Mustafa Mallick, Resident at City Centre
Complex, Bari Road, Patna.
4. Bihar State Sunni Waqf Board through its Chief Executive Officer, 34, Haj
Bhawan, Second Floor, Harding Road Ali Imam Path, Patna.
5. Asmat Ismaili Wife of Late Akhtar Imam Ismaili, Resident of Mohalla -
Line Bazar Chowk, P.S. - Khazanchi Haat, District- Purnia.
6. Ejaz Imam Ismaili Son of Late Akhtar Imam Ismaili, Resident of Mohalla -
Line Bazar Chowk, P.S. - Khazanchi Haat, District- Purnia.
7. Farhat Imam Ismaili D/o Late Akhtar Imam Ismaili, Resident of Mohalla -
Line Bazar Chowk, P.S. - Khazanchi Haat, District- Purnia.
8. Nikhat Imam Ismaili D/o late Akhtar Imam Ismaili, Resident of Mohalla -
Line Bazar Chowk, P.S. - Khazanchi Haat, District- Purnia.
9.1. Dr. Yasmeen Mallick D/o Dr. (Mrs.) Akhtar Jahan Mallick and Late Dr.
Azhar Imam Ismaili, Resident of Mohalla - Line Bazar Chowk, P.S. -
Khazanchi Haat, District- Purnia. Presently residing at Post Box No. 3489,
Riqua Dubai (U.A.E.)
9.2. Dr. Nasreen Mallick D/o Dr. (Mrs.) Akhtar Jahan Mallick and Late Dr.
Azhar Imam Ismaili, Resident of Mohalla - Line Bazar Chowk, P.S. -
Patna High Court C.Misc. No.1427 of 2024 dt.17-04-2026
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Khazanchi Haat, District- Purnia. Presently residing at Post Box No. 3489,
Riqua Dubai (U.A.E.)
9.3. Dr. Zareen Mallick D/o Dr. (Mrs.) Akhtar Jahan Mallick and Late Dr. Azhar
Imam Ismaili, Resident of Mohalla - Line Bazar Chowk, P.S. - Khazanchi
Haat, District- Purnia. Presently residing at Post Box No. 3489, Riqua Dubai
(U.A.E.)
9.4. Mona Mallick D/o Dr. (Mrs.) Akhtar Jahan Mallick and Late Dr. Azhar
Imam Ismaili, Resident of Mohalla - Line Bazar Chowk, P.S. - Khazanchi
Haat, District- Purnia. Presently residing at Post Box No. 3489, Riqua Dubai
(U.A.E.)
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Waliur Rahman, Advocate
Mr.Iqbal Asif Niazi, Advocate
For the Respondent/s : Mr. Sufiyan, Advocate
Md. Helal Ahmad, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 17-04-2026
Heard learned counsels for the parties.
2. The instant civil miscellaneous petition has been
filed for quashing the part of order dated 16.10.2014 passed by
the learned Additional District Judge-IV, Patna in Misc. Appeal
No. 01/2002 whereby and whereunder the learned Additional
District Judge rejected the petition dated 21.10.2008 filed by the
appellant/petitioner for substitution of heirs/legal representatives
of respondent no.2 holding that appeal against the respondent
no.2 stood abated.
3. Briefly stated, the facts of the case are that the
original respondent no.1 Sabiha Naseem along with her sister
Najma Ismaili (since deceased) filed Title Suit No. 11/1994 for a
declaration that the registration of suit property by the Bihar
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State Waqf Board on the basis of registered waqf deed dated
21.10.1965
and deed of Tauliatnama dated 17.02.1972 was
void, illegal and without jurisdiction and the petitioner was
impleaded as defendant no.4 in the said suit. The petitioner
appeared and filed her written statement, whereas other
defendants did not appear and the suit proceeded ex-parte
against them. The trial proceeded and the learned Sub Judge-1,
Patna decreed the suit ex-parte against defendant nos. 1 to 3 and
on contest against defendant no.4 vide judgment and decree
dated 30.08.1999 in favour of the plaintiffs. Aggrieved by the
said judgment and decree, the present petitioner filed Misc.
Case No.49/1999 in the court of learned Sub Judge-1, Patna
under Order 9 Rule 13 read with Section 151 of the Code of
Civil Procedure (hereinafter referred to as ‘the Code’) for setting
aside the judgment and decree dated 30.08.1999 passed in Title
Suit No. 11/1994 and restoration of said suit to its original file.
The learned Sub Judge-1, Patna vide order dated 20.10.2001
dismissed the above-mentioned Misc. Case No. 49/1999. Being
aggrieved by the order dated 20.10.2001, the petitioner
preferred Misc. Appeal No. 01/2002 in which the respondent
Sabiha Naseem filed an application dated 25.02.2008 informing
the court that one of the respondents, namely Najma Ismaili
died on 04.02.2008 during the pendency of the appeal leaving
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behind her two daughters. Another application dated 05.07.2008
was filed by the respondent Sabiha Naseem submitting therein
that the suit against respondent no.2 stood abated on account of
non-substitution of heirs/legal representatives of deceased
respondent. The petitioner filed a petition on 21.10.2008 for
substitution of heirs/legal representatives of deceased
respondent along with the petition under Section 5 of the
Limitation Act for condoning the delay in filing the substitution
petition. The respondent filed her rejoinder to the substitution
petition of the appellant/petitioner. The learned appellate court,
after hearing both the parties, dismissed the petition dated
21.10.2008 filed by the appellant for substitution of heirs/legal
representatives of deceased respondent no.2, vide order dated
16.10.2014, which has been challenged in the present civil
miscellaneous petition.
4. The learned counsel appearing on behalf of the
petitioner submits that the impugned order is not sustainable as
it has been passed against the facts available on record. While
passing the impugned order, the learned appellate court has
completely ignored the scope of Order 22 Rule 10-A of the
Code wherein a duty has been cast on defendant/respondent to
inform about the death of any party to the suit. The learned
counsel further submits that the copy of the petition dated
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25.02.2008 was not served upon the appellant/petitioner and
even the respondent did not inform the learned appellate court
about her legal heirs. The learned counsel further submits that
the learned court below failed to give notice of such information
about the death of one of the respondents as required under
Order 22 Rule 10-A of the Code. The learned appellate court
also failed to take notice of the fact that the respondent Sabiha
Naseem had played mischief by not serving a copy of the
petition dated 25.02.2008 about the death of respondent Najma
Ismaili as well as petition dated 05.07.2008 seeking abatement
of the appeal against respondent no.2 for non-substitution of
heirs/legal representatives. The learned appellate court has
further failed to take notice that respondent Sabiha Naseem
chose to effect service of both the petitions dated 25.02.2008
and 05.07.2008 only after expiry of limitation period on
01.05.2009. Thus, learned appellate court erred in holding that
the appellant despite having full knowledge of death of
respondent no.2 did not file substitution petition within time,
whereas the appellant/petitioner acted immediately by filing the
substitution petition on coming to know about the death of
respondent no.2. The learned counsel further submits that the
learned appellate court also failed to take notice of the fact that
the appellant/petitioner is a Pardanashin old lady and she
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should not be penalized for wrong, if any, committed by her
counsel as the learned appellate court held that it was the duty of
the counsel of the appellant to read the order sheet. This
consideration of the learned appellate court about the
appellant/petitioner having full knowledge of death of
respondent no.2 is not supported by reasons and the statutory
provisions. The learned counsel reiterates that the learned
appellate court failed to consider that Order 22 Rule 10-A of the
Code have been incorporated in the Code by way of amendment
whereunder a duty has been cast on defendant to inform about
the death of any party to the suit and the object is to make the
plaintiff aware about the same, so that he will be able to take
steps for substituting the heirs/legal representatives of such
deceased defendant.
5. Though, the contention of the learned counsel for
the petitioner has been opposed by the learned senior counsel
appearing on behalf of the respondents, but after some argument
he submits that since it is an old matter, he does not want to
object to the substitution of the heirs/legal representatives of
respondent no.2 Najma Ismaili, if the orders are passed for their
substitution, but the learned appellate court be directed to
dispose of the matter before it within the stipulated time period.
6. Perused the record.
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7. From perusal of record, I find that the learned
appellate court proceeded in the matter while imputing
knowledge to the appellant on the ground that the learned
counsel for the appellant was present on 05.02.2008 when the
application was filed by the respondent no.1 informing the court
about the death of respondent no.2 and the learned appellate
court observed that it was the duty of the learned counsel to read
the order sheet and inform the appellant about the death of
respondent no.2. But such observation by the learned appellate
court runs contrary to the specific provision of law.
8. Now, Order 22 Rule 10-A of the Code reads as
under :
“10-A. Duty of pleader to communicate to
Court death of a party.–Whenever a pleader
appearing for a party to the suit comes to know of the
death of that party, he shall inform the Court about it,
and the Court shall thereupon give notice of such
death to the other party, and, for this purpose, the
contract between the pleader and the deceased party
shall be deemed to subsist”.
9. So the statute provides for giving a notice to other
party by the court upon coming to know about the death of a
party to the suit. This notice must be specific and mere
mentioning of death in order sheet would not suffice for this
purpose. On this short point, I find that the impugned order
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suffers from material irregularity and the learned appellate court
failed to exercise its jurisdiction and, therefore, the impugned
order dated 16.10.2014 passed in Misc. Appeal No.01/2002 by
the learned Additional District Judge-IV, Patna is set aside and
the application dated 21.10.2008 is allowed.
10. Since it is an old matter of the year 2002, the
learned appellate court is directed to proceed in the matter
showing urgency and dispose of Misc. Appeal No.01/2002 at the
earliest and preferably within three months in the light of
administrative directions issued from time to time by this Court
for disposal of old cases.
11. With the aforesaid observations/directions, the
present petition is allowed.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 21.04.2026 Transmission Date NA