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2013 DIGILAW 915 (JHR)

Manju Devi v. Banshi Ram

2013-07-26

N.N.TIWARI

body2013
ORDER I.A. Nos. 2237 and 2238 of 2010. By the Court.-By way of these interlocutory applications, the appellants have prayed for condonation of delay and substitution of heirs and legal representatives of respondent No. 1-Banshi Ram and respondent No. 3-Kishunchand Ram, by setting aside abatement. 2. It has been stated that respondent No. 1 died in 1992 leaving behind his only son, as his heir and legal representative, and respondent No.3 died on 26th June, 1994 leaving behind his widow and sons, as his heirs and legal representatives, whose names and addresses are described in Paras-7 and 8 of I.A. No. 2237 of 2010, respectively, it has been submitted that the appellants had no knowledge about the death of the said respondents. However, the office had reported the said respondent to be dead on the basis of the report of the service of notice. The said fact was communicated to the appellants and, thereafter, the appellants came to Ranchi and took step for filing these applications. In the said process, there was delay in taking steps for substitution of heirs and legal representatives of the said respondents. It has been submitted that there was no willful laches and delay on the part of the appellants and they were prevented from taking steps for substitution under the said circumstance beyond their control. It has been further submitted that the appeal has been admitted by framing substantial question of law, if the prayer for substitution by condoing the delay and setting aside the abatement is not allowed, the appellants shall suffer irreparable loss and injury. 3. Learned counsel for the respondents vehemently opposed these applications and submitted that there is no proper explanation of the long delay. These applications have been filed after expiry of several years of death of respondent Nos. 1 and 3. The reasons explained for condonation of delay is not sufficient. Learned counsel further submitted that for the said negligence of the appellants, the respondents have to unnecessarily contest these application and incur expenses for their no fault. These applications are liable to be rejected. 4. I have heard learned counsel for the parties and considered the facts and materials on record. According to the appellants, they came to know about the death of respondent Nos. These applications are liable to be rejected. 4. I have heard learned counsel for the parties and considered the facts and materials on record. According to the appellants, they came to know about the death of respondent Nos. 1 and 3 after their counsel informed them about the office report regarding their death and advised the appellants to take steps for substitution of heirs and legal representatives of the deceased. The appellants, thereafter, took some time in arranging proper fund for coming to Ranchi and filing these interlocutory applications. 5. The respondents have not filed any affidavit in opposition, contradicting the said explanation of the appellants in spite of taking several time for that purpose. 6. It is, however, true that the respondents have to unnecessarily contest these applications for their no fault and incur expenses on the lawyer's fees etc. 7. Considering the above, these interlocutory applications are allowed. Delay in filing petition for substitution is condoned. Abatement is set aside and prayer for substitution is allowed subject to payment of cost of Rs. 1,000/- to be paid to the learned counsel for the respondents within one week. 8. I.A. Nos. 2237 and 2238 of 2010 stand disposed of. I.A. No. 2226 of 2010. 9. In this interlocutory application, the appellants have prayed for scraping the report of process server regarding death of Sarju Ram-Respondent No. 2, who is still alive and has already appeared through his counsel and ignoring the office note to that regard. 10. It has been submitted that it was wrongly reported by the process server that respondent No. 2 is dead. The said respondent is alive and he has already appeared through his counsel. 11. Learned counsel appearing on behalf of the respondents has not disputed the said fact. 12. In view of the above, this interlocutory application is allowed. Office report regarding death of respondent No. 2 is overruled. I.A. No. 2226 of 2010 stands disposed of. I.A. No. 2348 of 2012. 13. In this interlocutory application, the appellants have prayed for deleting the name of Mostt. Malti Devi-Respondent No. 3(i) from the cause title of the appeal. 14. It has been submitted that respondent No. 3 (i) has died and her only son namely. Manoj Kumar Gupta is already on record as respondent No. 3(ii). I.A. No. 2348 of 2012. 13. In this interlocutory application, the appellants have prayed for deleting the name of Mostt. Malti Devi-Respondent No. 3(i) from the cause title of the appeal. 14. It has been submitted that respondent No. 3 (i) has died and her only son namely. Manoj Kumar Gupta is already on record as respondent No. 3(ii). The name of respondent No. 3(i) is required to be deleted from the cause title of the memo of appeal. 15. Learned counsel for the respondents has no objection in deleting the name of respondent No. 3(i). 16. In view of the above, this interlocutory application is allowed. The appellants are permitted to delete the name of Mostt. Malti Devi-Respondent No. 3(i) from the cause title of the memo of appeal at their own risk. 17. I.A. No. 2348 of 2013 stands disposed of. Both I.As. Disposed of.