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Esam Sk. and ors. Vs. Sattar Mullick and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1730 (S) of 1970
Judge
Reported inAIR1972Cal141
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 9
AppellantEsam Sk. and ors.
RespondentSattar Mullick and ors.
Appellant AdvocateS.P. Roy Choudhury, Adv.
Respondent AdvocateSukumar Mukherjee, Adv.
Cases ReferredRamachandran v. C. Sabapathy Mudaliar
Excerpt:
- .....that they were prevented by sufficient cause from making the application for substitution within time. the petitioners, in this case, had knowledge of the death of the respondent. they submit that they did not come to court in time as the petitioner no. 1, who was looking after the case of the petitioners, was under the impression that the heirs of the respondent would themselves apply for substitution as they did in their own suit in the alipore court. it is also submitted that the petitioner no. 1, because of his illness, had not been attending to his work from 1966 and that the other petitioners were ignorant and illiterate persons and that the delay was bona fide. it seems that the petitioner no. 1 and his advocate were informed of the death of the sole respondent in 1968 when his.....
Judgment:
ORDER

A.K. De, J.

1. This Rule has arisen on an application by the appellants and is for setting aside the abatement of the appeal as against the sole respondent. He died on 31-1-1968. The petitioner No. 1 was one of the defendants in Title Suit No. 366 of 1959 in the Third Court of Munsif at Alipore. That was another suit by the sole respondent of this appeal. The heirs of Rahaman, the sole respondent, applied for substitution in that suit in the Alipore Court with notice to the petitioner No. 1 and his Advocate. He, thus, had knowledge of the death of the sole respondent from 1968. The petitioners, however, have made this application in this Court on 19-5-1970 stating that the petitioner No. 1 was looking after the case for all the petitioners, that the petitioner No. 2 is an illiterate old village woman, that the petitioner No. 3 is a cultivator, that the petitioner No. 4 is an ordinary labourer in a Jute Mill and the petitioner No. 5 is an ignorant house-wife living with her husband, that the petitioner No. 1 was under the impression that the sole respondent's heirs would themselves apply for substitution in this appeal as they did in their own Title Suit No. 366 of 1959 in the Alipore Munsif Court, that the petitioner No. 1 was a bullock-cart driver till four years back and had not been doing anything since then on account of blood pressure and that the petitioner No. 3 came to their Advocate in the High Court on 15-5-1970 to enquire as to what had become of their appeal admitted long before and enquired of him if the sole respondent's heirs have substituted themselves in the appeal, that he was then informed by his Advocate that they would have to apply for substitution and was asked to get the date of death and names of heirs of the respondent No. 1, that those informations were collected and he saw their Advocate again on 17-5-1970 and the petition was made ready on 18-5-1970 and filed on 19-5-1970. The prayer is -opposed by the heirs of the sole respondent who stated that the petitioners, with full knowledge of the death of the respondent, did not apply for substitution wilfully within time and that the delay in filing the application should not be excused.

2. The application for substitution had not been filed within time. Nor the application for setting aside the abatement had been filed within time. The question is whether the petitioners are entitled to the condonation of the delay in filing the appplication under Section 5 of the Limitation Act, 1963. The petitioners will have to satisfy the Court that they were prevented by sufficient cause from making the application for substitution within time. The petitioners, in this case, had knowledge of the death of the respondent. They submit that they did not come to court in time as the petitioner No. 1, who was looking after the case of the petitioners, was under the impression that the heirs of the respondent would themselves apply for substitution as they did in their own suit in the Alipore Court. It is also submitted that the petitioner No. 1, because of his illness, had not been attending to his work from 1966 and that the other petitioners were ignorant and illiterate persons and that the delay was bona fide. It seems that the petitioner No. 1 and his Advocate were informed of the death of the sole respondent in 1968 when his heirs got themselves substituted in the suit in the Alipore Court. It had been stated in the affidavit of the opposite parties that the petitioner No. 3 was present at the burial ground when the sole respondent was buried. The question is whether the petitioners' belief that the respondent's heirs would themselves apply for substitution is a sufficient cause to explain their delay in coming to court. These parties are litigating for some time past. There is more than one litigation between the parties. The petitioner No. 1 came to know of the respondent's death and noticed that substitution of his heirs was being made in another suit. It is only natural that he enquired of his lawyer and came to know that substitution of the heirs of the self-same person in their case would be necessary. It is also likely that he will come to know of the necessity of their application for substitution at that time. Three of the petitioners are male persons. It has been stated in the affidavit of the opposite parties that the petitioner No. 3 was also present at the burial ground and had knowledge of the death of the respondent. The petitioner No. 1, on his affidavit, had not been attending to his work for about four years, that is, from 1966. It is only likely that some one also on behalf of the appellants had taken charge of the matter from him and the matter did not remain unattended between 1966 and 1970. It is also likely that the petitioners, after having notice of the substitution of the respondent's heirs in their suit in Alipore Court, would contact their own lawyer in the High Court to find out if they would have to apply for substitution or not. I am not satisfied that the delay in this case by the petitioners in making the application is bona fide.

3. The learned Advocate appearing for the petitioners referred to the decisions in Krishna Mohan Ghose v. Surapati Banerjee (reported in 29 Cal WN 472) = (AIR 1925 Cal 634 (1)) and the case of Ramachandran v. C. Sabapathy Mudaliar, (reported in 54 Mad LJ 234 at p. 237) = (AIR 1928 Mad 404 at page 406) and submitted that delay, if bona fide, should be excused as sufficient cause within the meaning of Order 22, Rule 9 of the Code of Civil Procedure for setting aside the abatement. The question is whether on the facts of this case the principle of law laid down in those cases is applicable. I have already discussed the circumstances of the case and have concluded that the delay in this case was not bona fide. In that view of the matter, it cannot be said that the petitioners have made out the case that they were prevented by sufficient cause from applying for substitution of the heirs of the sole respondent within time or from applying for setting aside the abatement within time.

4. In the result, the Rule is discharged. There will be no order as to costs in this Rule.


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