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Abdul Latiff Molla Vs. Fazal Ali Karikar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberCivil Rule Nos. 2664 (s) and 2935 (s) of 1978
Judge
Reported inAIR1979Cal353
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 9; ;Limitation Act, 1963 - Section 5
AppellantAbdul Latiff Molla
RespondentFazal Ali Karikar
Appellant AdvocateB.K. Panda and ;M.K. Roy, Advs. in 2664 (s) of 1978
Respondent AdvocateA. Kabir, Adv. in 2664 (s) of 1978
Cases Referred(Krishna Mohan Ghosh v. Surapati Banerjee). That
Excerpt:
- .....view by a division bench decision reported in (1925) 29 cal wn 472 (krishna mohan ghosh v. surapati banerjee). that is a case where also due to ignorance substitution was not made and consequently the appeal abated. but upon the explanation being given to the effect that they were ignorant and did not know at all the statutory provisions of law or that it was at all necessary that the legal heirs be substituted their lordships condoned the delay as the explanation for delay was satisfactory and it was by bona fide mistake.4. the rule is made absolute and the abatement is set aside. let the heirs and legal representatives of the respondents as mentioned in the petition be brought on record and substituted in his place and stead.5. no order is made as to costs.6. this judgment will govern.....
Judgment:
ORDER

Jyotirmoyee Nag, J.

1. Both these Rules are under Section 5 of the Limitation Act for condoning the delay in filing the applications for substitution.

2. In C. R. No. 2664 (s)/78 there has been inordinate delay in making the application for substitution after setting aside abatement. The appellants Nos. 1 and 2 are semi literate villagers living in the extreme interior part of District 24-Parganas and appellants Nos. 3 and 4 are illiterate village women living under Parda. Both of them are unsophisticated women knowing nothing about law and procedure.

3. It, is stated in para 2 of the petition by the petitioner-appellants that on 24-8-1978 they knew about the death of respondent Fazal Ali Karikar who had died on 29-6-71 and they also knew about the heirs and legal representatives of the said deceased respondent. But they did not know that the heirs should be substituted in place of the deceased respondent. Incidentally the appellant No. 1 contacted his lawyer seven years after i.e. on 24-8-78 and casually told the learned Advocate that the respondent had died leaving behind certain heirs. It was then that the petitioner was informed that it was necessary to have those heirs and legal representatives substituted in place and stead of the deceased respondent. Accordingly the appellant No. 1 again saw his learned Advocate on 26-8-1978 and furnished necessary information in connection with the heirs of the deceased respondent. 26th and 27th were holidays and hence the application for substitution after setting aside abatement was made on 28-8-78. It is true that there has been inordinate delay in filing the application for substitution. But considering the facts and circumstances of the case and the status of the appellants the delay is certainly bona fide. Accordingly the same is condoned and the abatement is set aside. In this respect I am fortified in my view by a Division Bench decision reported in (1925) 29 Cal WN 472 (Krishna Mohan Ghosh v. Surapati Banerjee). That is a case where also due to ignorance substitution was not made and consequently the appeal abated. But upon the explanation being given to the effect that they were ignorant and did not know at all the statutory provisions of law or that it was at all necessary that the legal heirs be substituted their Lordships condoned the delay as the explanation for delay was satisfactory and it was by bona fide mistake.

4. The Rule is made absolute and the abatement is set aside. Let the heirs and legal representatives of the respondents as mentioned in the petition be brought on record and substituted in his place and stead.

5. No order is made as to costs.

6. This judgment will govern the other Rule, being C. R. 2935(s)/78, which is also made absolute.


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