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2022 DIGILAW 1225 (CAL)

Gopi Mohan Pal v. Bimal Krishna Dutta

2022-08-25

BISWAJIT BASU

body2022
JUDGMENT : In S.A. 33 of 2009 Re : I.A. No : CAN 2 of 2022 with CAN 3 of 2022 1. The appellant nos. 1, 2(e), 2 (f), 3(a) and 3(b) have died intestate during the pendency of the present second appeal on diverse dates. 2. Except appellant no. 3(a), who died on December 05, 2021, all the above mentioned appellants died long back but their heirs and legal representatives were not brought on record within this long period as a consequence the appeal has abated so far as it relates to the said deceased appellants. 3. These are applications for substitution of the heirs and legal representatives of the said deceased appellants in the present second appeal and condonation of delay thereto. 4. Mr. Ayan Banerjee learned advocate for the appellants submits that there was lack of communication between the appellants and their erstwhile advocate which resulted delay in filing the application for substitution. 5. Mr. Angshuman Chakraborty, learned advocate for the respondents vehemently objects to the prayer for condonation of delay, he submits that the explanation offered in the application is not only unbelievable but also contradictory to the materials-on-record. He further submits that the delay is almost of twelve years and in view of long length of delay, usual liberal approach to condone delay cannot be adopted. In support of his such submission, he places reliance on the decision of the Hon’ble Supreme Court in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Ors., reported in (2013) 12 SCC 649 . 6. Heard learned advocate for the parties, perused the materials-on-record. 7. The present appeal since is arising out of a suit for eviction on the death of some of the appellants the entire appeal will abate, the surviving appellants can continue with the appeal but to avoid unnecessary complication, particularly when the substitution of the heirs of deceased appellants will not cause any prejudice to the respondents, the said delay needs to be condoned for ends of justice. 8. There is no dispute with regard to the proposition laid down in the above decision of the Hon’ble Supreme Court that the approach to condone the delay whether will be strict or liberal, depends upon the length of the delay. 9. 8. There is no dispute with regard to the proposition laid down in the above decision of the Hon’ble Supreme Court that the approach to condone the delay whether will be strict or liberal, depends upon the length of the delay. 9. In the present case on the death of some of the appellants and on consequent failure of the surviving appellants to bring the heirs and legal representatives of the deceased appellants on record within the period of limitation do not cause abatement of the appeal as a whole, as such the ratio of the said decision will not be applicable in the present case notwithstanding the length of delay. 10. However, the appellants’ negligence to take appropriate steps to bring the heirs and legal representatives of the deceased appellants on record within the stipulated period of time has caused harassment to the respondents which must be compensated by appropriate costs. 11. The said delay therefore is condoned, subject to the payment of costs of Rs. 30,000/- by the appellants to the respondents within two weeks from date, in default, the application for condonation of delay shall stand dismissed without any reference to this Court. 12. In consequence of condonation of said delay, the abatement of the appeal so far as it relates to the deceased appellants, is set aside. 13. The heirs and legal representatives of the said deceased appellants whose particulars have been set out under Paragraphs 10, 11, 12, 13 and 14 of the application for substitution be substituted in place and instead of the said deceased appellants in the present second appeal. 14. I.A. No : CAN 2 of 2022 and I.A. No : CAN 3 of 2022 are thus disposed of. 15. The department is directed to carry out necessary amendments in the cause title of the memorandum of appeal. 16. The Vakalatnama of the substituted appellants annexed with the application for substitution, subject to verification, be tagged with the record. Re : I.A. No : CAN 4 of 2022 17. The respondent no. 1 died intestate during the pendency of the present second appeal on February 19, 2022. 18. This is an application for substitution of the heirs and legal representatives of the said deceased respondent. 19. The application is filed within time and is otherwise in form, as such allowed. 20. The respondent no. 1 died intestate during the pendency of the present second appeal on February 19, 2022. 18. This is an application for substitution of the heirs and legal representatives of the said deceased respondent. 19. The application is filed within time and is otherwise in form, as such allowed. 20. Let the heirs and legal representatives of the said deceased respondent whose particulars have been set out under Paragrpah 10 of the application be substituted in place and instead of the said deceased respondent in the present second appeal. 21. I.A. No : CAN 4 of 2022 is thus disposed of without any order as to costs. 22. The department is directed to carry out necessary amendments in the cause-title of the memorandum of appeal. I.A. No : CAN 5 of 2022 23. This is an application for condonation of delay in filing the appliction for substitution. The application for substitution was filed within time, as such the present application is misconceived. 24. I.A. No : CAN 5 of 2022 is dismissed as such without any order as to costs. Re : S.A. 33 of 2009 25. Mr. Angshuman Chakraborty, learned advocate for the respondents submits that he has instruction to appear on behalf of the substituted respondent nos. 1 (c) and 1 (d) and has already filed Vakalatnama on behalf of the said respondents in the department under Filing No. A – 11046 dated 23.06.2022 and under Filing No. A – 12577 dated 11.07.2022. 26. The department is directed to put the Vakalatnama in the record. 27. The appellants are required to put in requisites and written up notice form for service of notice of appeal upon the non-appearing respondents within a period of two weeks from date. In S.A. 290 of 2013 Re : I.A. No : CAN 2 of 2022 with CAN 3 of 2022 28. The appellant nos. 2, 3, 9, 13 and 14 have died intestate during the pendency of the present second appeal on diverse dates. 29. Except appellant nos. 2 and 14, all other appellants died long back. 30. These are applications for substitution of the heirs and legal representatives of the said deceased appellants in the present second appeal and condonation of delay thereto. 31. Mr. 29. Except appellant nos. 2 and 14, all other appellants died long back. 30. These are applications for substitution of the heirs and legal representatives of the said deceased appellants in the present second appeal and condonation of delay thereto. 31. Mr. Ayan Banerjee learned advocate for the appellants submits that like the other appeal (S.A. 33 of 2009), there was lack of communication between the appellants and their erstwhile advocate which resulted delay in filing the application for substitution. 32. Mr. Angshuman Chakraborty, learned advocate for the respondents submits that this is an appeal against the appellate decree declaring respondents’ title over the suit property and for the failure of the surviving appellants to bring the heirs and legal representatives of the said deceased appellants on record within the stipulated period of time, the appeal has abated as a whole, accruing a right in favour of the respondents, therefore, such long delay cannot be condoned in the absence of proper explanation which the application for condonation of delay is absolutely lacking. 33. Heard learned advocate for the parties, perused the materials-on-record. 34. The suit for eviction filed by the appellants out of which S.A. 33 of 2009 arises was heard analogously with the suit filed by the respondents for declaration of their title over the suit property by the doctrine of adverse possession. The present appeal is arising out of the suit filed by the respondents. 35. The dismissal of the present application for condonation of delay would result in formal recording of abatement of the appeal connected with the present application, which in consequence would render the other appeal being S.A. 33 of 2009 infructuous, considering such position of the matter and for ends of justice, the delay in filing the application for substitution of the heirs and legal representatives of some of the deceased appellants in the present second appeal deserves to be condoned. 36. The revival of the appeal after such a long period will certainly cause some inconveniences to the respondents which can be compensated by awarding appropriate costs. 37. The said delay, therefore, is condoned, subject to the payment of costs of Rs. 30,000/-by the appellants to the respondents within two weeks from date, in default, the application for condonation of delay shall stand dismissed without any reference to this Court. 38. 37. The said delay, therefore, is condoned, subject to the payment of costs of Rs. 30,000/-by the appellants to the respondents within two weeks from date, in default, the application for condonation of delay shall stand dismissed without any reference to this Court. 38. In consequence of condonation of the said delay, the abatement of the appeal is set aside. 39. The heirs and legal representatives of the said deceased appellants, whose particulars have been set out under Paragraphs 10, 11, 12, 13 and 14 of the application for substitution, be brought on record in place and instead of the said deceased appellants in the present second appeal. 40. I.A. No : CAN 2 of 2022 and I.A. No : CAN 3 of 2022 are thus disposed of. 41. The department is directed to carry out necessary amendments in the cause-title of the memorandum of appeal. 42. The Vakalatnama of the substituted appellants annexed with the application for substitution, subject to verification, be tagged with the record. Re : I.A. No : CAN 4 of 2022 43. The sole respondent has died intestate during the pendency of the present second appeal on February 19, 2022. 44. This is an application for substitution of the heirs and legal representatives of the said deceased respondent. 45. The application is filed within time and is otherwise in form, as such allowed. 46. Let the heirs and legal representatives of the said deceased respondent, whose particulars have been set out under Paragrpah 10 of the application, be brought on record in place and instead of the said deceased respondent in the present second appeal. 47. I.A. No : CAN 4 of 2022 is disposed of without any order as to costs. 48. The department is directed to carry out necessary amendments in the cause-title of the memorandum of appeal. I.A. No : CAN 5 of 2022 49. This is an application for condonation of delay in filing the application for substitution. The application for substitution was filed within time, as such the application is misconceived. 50. I.A. No: CAN 5 of 2022 is dismissed as such without any order as to costs. Re : S.A. 290 of 2013 51. Mr. Angshuman Chakraborty, learned advocate for the respondent submits that he has instruction to appear on behalf of the substituted respondent nos. The application for substitution was filed within time, as such the application is misconceived. 50. I.A. No: CAN 5 of 2022 is dismissed as such without any order as to costs. Re : S.A. 290 of 2013 51. Mr. Angshuman Chakraborty, learned advocate for the respondent submits that he has instruction to appear on behalf of the substituted respondent nos. 1(c) and 1(d) and has already filed Vakalatnama on behalf of the said respondents in the department under Filing No. A – 11045 dated 23.06.2022 and under Filing No. A – 12577 dated 11.07.2022. 52. The department is directed to put the Vakalatnama in the file. 53. The appellants are required to put in requisites and written up notice form for service of notice of appeal upon the non-appearing respondents within a period of two weeks from date.