JUDGMENT : Biswaroop Chowdhury, J. 1.An application for substitution filed by the Applicants being CAN-02 of 2025 and application for dismissal of the Appeal on the ground of abatement filed by the respondent was taken up and heard analogously. 2. The respondent in the instant appeal on 4th September 2024 filed an application before this Court for dismissal of the appeal on ground of abatement. 3. It is the contention of the respondent/applicant that the sole Appellant/plaintiff died on 7th April 2021 and no application for substitution is filed although statutory period under the Limitation Act is over. It is further contended that the respondent came to know of the death of the Appellant on the month of January 2024 and upon obtaining death certificate on or about 30th August 2024 he came to Calcutta for consulting his Learned Advocate and as the application could not be filed before Jalpaiguri Court Bench, the application was filed before Calcutta Bench. The Applicants being the heirs of the sole appellant has filed an application for substitution upon setting aside abatement and upon condoning delay of 1424 days. 4. It is the contention of the applicants that the original appellant was himself conducting entire lis from its very inception and the petitioners/applicants were not aware of the pendency of the instant appeal and had no knowledge regarding the details of the same. It is further contended that on August 19, 2025 the matter came up for hearing before the Hon’ble Justice Partha Sarathi Sen when it was informed by the Learned Advocate for the respondent that the sole appellant had died in the year 2021. It is further contended by the applicants that on the particular date Mr. Debasish Mukhopadhyay Learned Advocate appearing for the original appellant had inadvertently submitted before the Hon’ble Court that an application for substitution had already been filed on behalf of the applicants and was pending. Since the instant matter being an old matter was pending before the principal Bench of the Hon’ble Court, and the entire brief of the instant case was in the chamber of Mr. Mukhopadhyay at Kolkata as such at the time of hearing on August 19, 2025 Mr. Mukhopadhyay could not check his brief and an erroneous submission was made at the time of hearing. Mukhopadhyay at Kolkata as such at the time of hearing on August 19, 2025 Mr. Mukhopadhyay could not check his brief and an erroneous submission was made at the time of hearing. It is also contended that the matter was pending before the Principal Bench all along and had suddenly appeared before the Circuit Bench at Jalpaiguri and as such Mr. Mukhopadhyay, who was already in Jalpaiguri to conduct matters before the Circuit Bench was unable to check the brief of the instant case. It is contended that after hearing of the matter on August 19,2025, Mr. Mukhopadhyay came back to Calcutta on August 24, 2025 and after going through the brief somehow contacted the petitioners and ascertained about the death of the original appellant Kabindra Nath Barman and advised the petitioners to file application for substitution after setting aside abatement. 5. The application for substitution is objected by the respondent. It is the contention of the respondent that the allegation made in paragraphs 4 of the application regarding ignorance of the case are false and baseless. It is further contended that the statements made in paragraph 5, 6, 7, 8, 9, 10, and 11 regarding Learned Advocate of the petitioner coming to know when the matter appeared in the list of His Lordship the Hon’ble Justice Partha Sarathi Sen on 25th August 2025 and the Learned Advocate for the petitioner ascertaining the death of the original appellant and advising the petitioners to take necessary steps are all false. 6. It is also contended that no plausible case for substitution having been made out by the petitioner the application should be dismissed. 7. Heard Learned Advocate for the petitioners and Learned Advocate for the Respondent. Perused the petition filed and materials on record. 8. The following decisions are relied upon by the Learned Advocates. Perumon Bhagvathy Devasuom Perinadu Village. VS Bhargavi AMMA (Dead) by LRS and others. Reported in (2008) 8 SCC. P-321. Civil Appeal. No. 13407 of 2024. Om Prakash Gupta Alias Laloova (New deceased) and ors, Satish Chandra (Now Deceased) Om Prakash Gupta (Now deceased) and ors. VS SMT. Rooprani (Now deceased) Reported in 2025 INSC. 183 . 9. Before proceeding to decide on the issue as to whether the petitioners have been able to show sufficient cause for setting aside the abatement first of all it is necessary to consider the grounds furnished by the petitioner. VS SMT. Rooprani (Now deceased) Reported in 2025 INSC. 183 . 9. Before proceeding to decide on the issue as to whether the petitioners have been able to show sufficient cause for setting aside the abatement first of all it is necessary to consider the grounds furnished by the petitioner. The two grounds as contended by the petitioners are firstly the petitioners were not aware about pendency of the case and secondly the ignorance of the Learned Advocate for the sole appellant about death of the appellant. Now with regard to the contention that the Learned Advocate for the petitioner Mr. Debasish Mukhopadhyay appeared on August 19, 2025 and inadvertently submitted before this Hon’ble Court that application for substitution was already filed and thereafter checked his brief after coming to Calcutta and ascertained from the petitioners regarding death and advised them to file substitution application, it will appear from the petition itself that the petition was drafted and prepared in the office of Mr. Debasesh Mukhopadhyay Learned Advocate for the petitioner. An Advocate who is an officer of the Court, when he prepares the petition on the basis of his own knowledge, such contention should not ordinarily be disbelieved. 10. Now before deciding the issue of the knowledge of the appellants about the pendency of the case it is necessary to consider the Judicial decisions relied upon. 11. In the case of Peruman Bhagvathy Devaswom the Hon’ble Supreme Court observed as follows: ‘15. The first is whether the appeal is pending in a court where regular and periodical dates of hearing are fixed. There is a significant difference between an appeal pending in a sub-ordinate court and an appeal pending in a High Court. In lower courts, dates of hearing are periodically fixed and a party or his counsel is expected to appear on those dates and keep track of the case. The process is known as `adjournment of hearing'. There is a significant difference between an appeal pending in a sub-ordinate court and an appeal pending in a High Court. In lower courts, dates of hearing are periodically fixed and a party or his counsel is expected to appear on those dates and keep track of the case. The process is known as `adjournment of hearing'. In fact, this Court in Ram Charan (supra) inferred that the limitation period for bringing the legal representative might have been fixed as 90 days keeping in mind the adjournment procedure: "The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other party's absence." 16. In contrast, when an appeal is pending in a High Court, dates of hearing are not fixed periodically. Once the appeal is admitted, it virtually goes into storage and is listed before the court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as 10 years or even more). When the appeal is admitted by the High Court, the counsel inform the parties that they will get in touch as and when the case is listed for hearing. There is nothing the appellant is required to do during the period between admission of the appeal and listing of the appeal for arguments (except filing paper books or depositing the charges for preparation of paper books wherever necessary). The High Courts are overloaded with appeals and the litigant is in no way responsible for non- listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. The High Courts are overloaded with appeals and the litigant is in no way responsible for non- listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. When an appeal is so kept pending in suspended animation for a large number of years in the High Court without any date being fixed for hearing, there is no likelihood of the appellant becoming aware of the death of the respondent, unless both lived in the immediate vicinity or were related or the court issues a notice to him informing the death of the respondent. 12. In the case of Om Prakash Gupta Alias Lallowa (supra) the Hon’ble Supreme Court observed as follows: ‘9. The principles to guide courts while considering applications for setting aside abatement and application for condonation of delay in filing the former application are laid down by this Court in Perumon Bhagvathy Devaswom v. Bhargavi Amma (2008) 8 SCC 321 . An instructive passage from such decision reads as follows: “13. The principles applicable in considering applications for setting aside abatement may thus be summarized as follows: (i) The words ‘sufficient cause for not making the application within the period of limitation’ should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words ‘sufficient cause’ in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer’s lapses more leniently than applications relating to litigant’s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. (v) Want of ‘diligence’ or ‘inaction’ can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” (emphasis supplied in original) 13. The aforesaid passage is followed by other instructive passages too on special factors which have a bearing on what constitutes “sufficient cause”, with reference to delay in applications for setting aside abatement and bringing the legal representatives on record. To the extent relevant for decisions on these two appeals, the same are extracted hereunder: “15. The first is whether the appeal is pending in a court where regular and periodical dates of hearing are fixed. There is a significant difference between an appeal pending in a subordinate court and an appeal pending in a High Court. In lower courts, dates of hearing are periodically fixed and a party or his counsel is expected to appear on those dates and keep track of the case. The process is known as ‘adjournment of hearing’. ... 16. There is a significant difference between an appeal pending in a subordinate court and an appeal pending in a High Court. In lower courts, dates of hearing are periodically fixed and a party or his counsel is expected to appear on those dates and keep track of the case. The process is known as ‘adjournment of hearing’. ... 16. In contrast, when an appeal is pending in a High Court, dates of hearing are not fixed periodically. Once the appeal is admitted, it virtually goes into storage and is listed before the Court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as ten years or even more.) When the appeal is admitted by the High Court, the counsel inform the parties that they will get in touch as and when the case is listed for hearing. There is nothing the appellant is required to do during the period between admission of the appeal and listing of the appeal for arguments (except filing paper books or depositing the charges for preparation of paper books wherever necessary). The High Courts are overloaded with appeals and the litigant is in no way responsible for non-listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. When an appeal is so kept pending in suspended animation for a large number of years in the High Court without any date being fixed for hearing, there is no likelihood of the appellant becoming aware of the death of the respondent, unless both lived in the immediate vicinity or were related or the court issues a notice to him informing the death of the respondent. 17. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. 17. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10-A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the order-sheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be an indication of negligence or want of diligence. 18. The third circumstance is whether there is any material to contradict the claim of the appellant, if he categorically states that he was unaware of the death of the respondent. In the absence of any material, the court would accept his claim that he was not aware of the death. 19. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party—LRs of the deceased—on account of the abatement): (i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed; (ii) Neither the counsel for the deceased respondent nor the legal representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant; (iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim." (emphasis supplied) 14. Thus from the judicial decisions relied upon it will go to show that while considering an application for substitution after condoning delay and setting aside abatement Courts should take a liberal approach for advancing substantial justice. Thus from the judicial decisions relied upon it will go to show that while considering an application for substitution after condoning delay and setting aside abatement Courts should take a liberal approach for advancing substantial justice. Moreover the criteria for condoning delay in time barred appeal is not the same as the criteria of condoning delay in filing substitution application. Thus Courts may be more lenient in condoning delay in filing substitution application than in condoning delay in time barred appeal. 15. Now with regard to the plea of ignorance of the applicants regarding the appeal pending, it appears that the appeal was instituted in the year 2005, and the sole appellant died in 2021. Normally in case of suit before trial Court the family members of a litigant may see him going to Court frequently, contacting his Advocate and discussing, the outcome of the proceedings but after the first appeal is disposed and second Appeal filed, and second Appeal after being admitted is not taken up for hearing for a long period it is not unusual for family members to forget about the appeal being instituted. In the instant case the appeal after being admitted was not heard for about 16 years, moreover the sole appellant died during the Covid Period. 16. Thus considering the fact that it is abatement of Second Appeal and not abatement of Suit same parameters cannot be applied, and the ground regarding ignorance of the second Appeal should not be disbelieved. 17. Hence this application for substitution being CAN-2 of 2025 filed by the petitioners stands allowed after condoning delay and setting aside abatement. The name of the Appellant Kabirnath Barman be deleted on account of his death and the names of his legal heirs as mentioned in paragraph-2 of the petition be substituted. Such amendments shall be carried out within two weeks after vacation. 18. As application for substitution after condoning delay is allowed the application for dismissal of suit on ground of abatement being CAN-1 of 2025 automatically stands dismissed.