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2006 DIGILAW 264 (ORI)

GHANASHYAM NANDA v. KARTIK PRADHAN

2006-04-03

N.PRUSTY

body2006
N. PRUSTY, J. ( 1 ) HEARD Mr. Mohanty, learned Counsel for the petitioners. ( 2 ) THIS writ petition has been filed by the plaintiffs-petitioners against the order dated 22. 11. 2005 passed by the learned Civil Jude (Junior Division), Jagatsinghpur in C. S. No. 128 of 2002 rejecting the application filed by the petitioner for substitution and setting aside abatement, since application for setting aside abatement was filed on 28. 7. 05 i. e. on the 95th day of the abatement of the suit on 25. 4. 05, which is beyond the limitation period of 60 days as prescribed under Article 121 of the Limitation Act and no prayer has been made for condonation of delay of 35 days in making the prayer for setting aside the abatement. ( 3 ) IT is submitted by the learned Counsel for the petitioners that defendant No. 2, namely, Bijuli Pradhan, died on 25. 1. 2005. Petition for substitution of her legal heirs in her place was filed on 25. 4. 2005. By wrongly calculating the period of limitation even though the petition for substitution had been filed on the very 91st day from the date of death, since the 90th day (24. 4. 2005) was a Sunday, the plaintiffs filed an application for setting aside abatement on 28. 7. 2005 by way of abundant caution. This petition for setting aside abatement was filed prior to the final decision taken on the application for substitution. Learned Counsel further submits that the period of limitation for filing petition for substitution is 90 days from the date of death and for setting aside abatement is 60 days thereafter. As such, if petition for substitution has been filed within 150 days from the date of death, even though the petition for setting aside abatement has not been filed along with the petition for substitution and has been filed later on, both the applications ought to have been considered together and disposed of by allowing those petitions. As such, if petition for substitution has been filed within 150 days from the date of death, even though the petition for setting aside abatement has not been filed along with the petition for substitution and has been filed later on, both the applications ought to have been considered together and disposed of by allowing those petitions. Learned Counsel further submits that even if assuming that there is a delay of only one day in filing the petition for substitution, the learned trial Court ought not to have rejected the prayer for setting aside the abatement, even though the application under Order 22 Rule 9 C. P. C. was filed on a later date, as it has been filed prior to the date the application for substitution was taken up for consideration. ( 4 ) AS it appears from the contention of the learned Counsel for the petitioners, the petition for substitution has been filed only one day beyond the prescribed period of limitation of 90 days from the date of death since defendant No. 2 expired on 25. 1. 2005 and the application for substitution was filed on 25. 4. 2005. Learned trial Court while considering the applications for substitution and setting aside the abatement ought to have first taken into account as to whether the petition fro substitution has been filed within the period of limitation and if not filed within the prescribed period, then what is the period of delay in filing such application. In case there was some delay in filing the petition for substitution beyond the period of limitation of 90 days and an application for setting aside abatement has been filed before consideration of such application, both the petitions ought to have been taken up together for consideration and disposed of calculating the entire period on the basis of the date of filing of the application for substitution and not the date on which the application for setting aside the abatement was filed. Further more, on verification of the Calendar for the year 2005, it is seen that the last date of filing the application for substitution 24. 4. 2005 (90th day) was a Sunday and since the petition for substitution was filed by the petitioner on the very next day which was the first available opportunity for him i. e. , Monday 25. 4. 4. 2005 (90th day) was a Sunday and since the petition for substitution was filed by the petitioner on the very next day which was the first available opportunity for him i. e. , Monday 25. 4. 2005, it can never be said that the petition for substitution has been filed beyond the prescribed period of limitation of 90 days, since 90th day was admittedly a holiday for the Court. ( 5 ) IN view of the above, even though the matter is listed for admission and no notice has yet been issued to the opposite parties, in my considered view, no useful purpose will be served in keeping the matter pending and the same can be disposed of at this stage, since it is for a Court to impart substantial justice to an aggrieved party/ litigant public and not to reject an application on a flimsy/technical ground. ( 6 ) CONSIDERING the submissions made by the learned Counsel for the petitioners and after going through the contents of the writ petition and the impugned order as well as keeping in view the facts and circumstances of the case, the order dated 22. 1. 2005 (Annexure-5) passed by the learned Civil Judge (Junior Division), Jagatsinghpur in C. S. No. 128 of 2002 is set aside. The matter is remitted back to the learned trial Court to reconsider the same afresh keeping in view observations made above. The writ petition is accordingly disposed of.