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Calcutta High Court · body

2016 DIGILAW 4 (CAL)

Sakia Chatterjee v. Md. Sirajuddin Biswas

2016-01-05

ASHIS KUMAR CHAKRABORTY

body2016
JUDGMENT : In Re.: C.A.N. 2215 of 2014 In this application, the appellants-petitioners have prayed for setting aside of the abatement of the appeal on the ground of their failure to substitute the heirs and legal representatives of the respondent no. 1 in the second appeal within the prescribed period of limitation after condonation of delay in preferring the instant application. Since, the respondent no. 1 in the second appeal died on August 13, 2013 and his heirs and legal representatives were not substituted within November 12, 2013, the appeal stood abated as against the respondent no. 1. The time to file the application under Order XXII Rule 9 of the Code of Civil Procedure for setting aside of the abatement of the appeal as against the respondent no. 1 expired on January 12, 2014 and the present application was filed by the appellants-petitioners on March 05, 2014. Thus, the delay, which is prayed to be condoned, is little more than two months. In the application and in their affidavit-in-reply, the appellants-petitioners have stated that in the month of January, 2014, when they came to know the death of the respondent no. 1, they immediately instructed their advocate to take steps. The Advocate of the appellants-petitioners prepared the present application in the first week of February, 2014 but, as the appellant no. 2 fell sick, she could not come to this Court to affirm this application. On these grounds, Mr. Alam appearing for the appellants-petitioners submitted that this application should be allowed. However, Mr. Das appearing for the heirs and legal representatives of the deceased respondent no. 1 as also for the surviving respondents relied on a decision of this Court in the case of Lalit Mohan Ghosh vs. Lala Netai Chandra Babu @ Basu & Ors, reported in (2015) 3 CLJ 420 and submitted that since the appellants-petitioners were aware of the death of the respondent no. 1, there was no requirement on the part of the Advocate of the deceased respondent no. 1 to serve a notice of the death of the respondent no. 1 under Order XXII Rule 10A of the Code of Civil Procedure. He further submitted that the explanation made by the appellants-petitioners do not constitute “sufficient cause” within the meaning of Section 5 of the Limitation Act and Sub-rule (5) of Rule 22 of the Code of Civil Procedure. 1 under Order XXII Rule 10A of the Code of Civil Procedure. He further submitted that the explanation made by the appellants-petitioners do not constitute “sufficient cause” within the meaning of Section 5 of the Limitation Act and Sub-rule (5) of Rule 22 of the Code of Civil Procedure. I have considered the facts of the case, the pleadings of the respective parties as also the submissions of Mr. Alam and Mr. Das, learned Advocates appearing for the respective parties. In the instant case, the explanation of the appellants-petitioners for delay in filing this application, already recorded, cannot be held to be unbelievable or not plausible. Accordingly, I cannot accept the contention of Mr. Das appearing for the heirs and legal representatives of the respondent no. 1 that the appellants-petitioners have not sufficiently explained the delay of little more than two months in preferring the instant application. Considering the statements made in the application and the affidavit-in-reply filed by the appellants-petitioners, I am satisfied that they have sufficiently explained the facts which prevented them from filing the present application within the prescribed period of limitation. For the foregoing reasons, the delay in preferring the instant application for setting aside of the abatement of the appeal as against the deceased respondent no. 1 is condoned and the abatement of the appeal as against the deceased respondent no. 1 is set aside. The Department is directed to amend the cause title of the Memorandum of Appeal filed in the Second Appeal by recording the death of the respondent no. 1 and by substituting the heirs and legal representatives of the deceased respondent no. 1, mentioned in paragraph 2 of the application, in his place and stead. With the above directions, the application, being C.A.N. 2215 of 2015, stands disposed of. There shall, however, be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of requisite formalities.