Jharkhand High Court
Shiv Shankar Sao vs M/S Dhanbad Engineering Works Firm At ... on 1 September, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:26609
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 351 of 2006
1. Shiv Shankar Sao
2. Satya Narayan Sao
Both sons of late Bhupal Sao, R/o Lodna Bazar, P.O. Lodna, P.S. Tisra,
District, Dhanbad .... .... Appellants
Versus
1. M/s Dhanbad Engineering works firm at G.T. Road, Amarpur, Police
Station-Govindpur, P.O. Govindpur, Dist-Dhanbad
2. Md. Amanat Hussain, S/o not known to the appellant, R/o G.T. Road,
Amarpur, P.O. Govindpur, P.S. Govindpur, Dist-Dhanbad
3. (i) Md. Manowar Alam, S/o Late Md. Khursheed Ansari, R/o Karimgunj,
Wasseypur, Dhabad, P.O. & P.S. Bank More, District-Dhanbad
(ii) Haider Ali, S/o Late Md. Khursheed Ansari, R/o Karimgunj,
Wasseypur, Dhabad, P.O. & P.S. Bank More, District-Dhanbad
(iii) Mushtari Khatoon, D/o Late Md. Khursheed Ansari, Wife of
Reyazuddin Ahmad, R/o Qamar Makhdoomi Road, Wasseypur, Dhabad,
P.O. & P.S. Bank More, District-Dhanbad
(iv) Anwari Khatoon, D/o Late Md. Khursheed Ansari, Wife of Shakeel
Akhtar, R/o Qr. No. 1A/51, Subhash Nagar, Phusro, P.O. & P.S. Phusro,
District-Bokaro
(v) Mustaqeema Parween, D/o Late Md. Khursheed Ansari, Wife of
Imdad Ansari, R/o Ansari Mohalla, Siblibadi, P.O. & P.S. Chirkunda,
District-Dhanbad
(vi) Ishrat Perween, D/o Late Md. Khursheed Ansari, Wife of
Mustaqueem Akhtar, R/o Qr. No. 1A/51, Subhash Nagar, Phusro, P.O. &
P.S. Phusro, District-Bokaro
(vii) Shama Perween, D/o Late Md. Khursheed Ansari, W/o Md. Helal
Hasan, R/o Rail Paar, Jahangiri Mohalla, P.O. & P.S. Jahangiri Mohalla,
District Dhanbad
(viii) Shabnam Perween, D/o Late Md. Khursheed Ansari, W/o Faiyaz
Ahmad, R/o Qamar Makhdoomi Road, Wasseypur, Dhanbad, P.O. & P.S.
Bank More, District-Dhanbad
4. Smt. Laxhmi Devi, W/o Sri Sitaram Sao and Daughter of Late Sohagi
Devi, R/o Chirkunda, P.O. & P.S. Chirkunda, Dist-Dhanbad
5. Smt. Kamala Devi, W/o Shri Bhola Sao and Daughter of Late Sohagi
Devi resident of Munshi Bazar, Asansol Post Office Asansol Police
Station Asansol, District-Burdwan (West Bengal)
6. Smt. Bimla Devi, W/o Shri Jagdish Sao, R/o Bastacola, Post office
Dhansar, Dist.-Dhanbad
7. Smt. Chinta Devi, W/o Shir Nishatar Sao and Daughter of Late Sohagi
Devi R/o Kulai Post Office, Manihara, Police Station Manihara, District-
Purulia (West Bengal
... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellants : Mr. Amar Kr. Sinha, Advocate
Mr. K. K. Ambastha, Advocate
Mr. Abdul Wahab, Advocate
Mr. Anurag Chandra, Advocate
2025:JHHC:26609
For the Respondent No. 3 : Mr. P.K. Mukhopadhyay, Advocate
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Order No. 16 / Dated : 01.09.2025.
1. Earlier vakalatnama had already been filed on behalf of the respondent nos.
3.
2. Respondent no. 3 had died and he had been substituted by the order of this Court on 21.06.2013, but no vakalatnama has been filed on behalf of his substituted legal heirs, despite lapse of more than a decade. Learned Counsel Mr. P.K. Mukhopadhyay, seeks adjournment to file Vakalatnama on behalf of the substituted respondents.
3. The respondents/ defendants and substituted respondents have a common interest and contested the suit for eviction. Therefore, under Order I Rule 8 of the CPC any of the defendant/ respondent having the same interest in the suit or appeal can contest the instant miscellaneous appeal. The appellants are the plaintiffs and the suit for eviction was filed under the provisions of 11 (1) (c) read with Section 14 of Bihar Buildings (Lease Rent and Eviction) Control Act, 1982. The said suit was dismissed and an appeal was preferred by the plaintiffs.
4. This is a case where the eviction suit was filed in the year 1988 and against the abatement of the first appeal, the present miscellaneous appeal has been filed in 2006. Considering the long delay, no further adjournment will be granted for filing of separate vakalatnama on behalf of the substituted Respondents, since Mr. P.K. Mukhopadhyay, is already appearing on behalf of Respondent No.1 and 2.
5. It is submitted by the learned counsel on behalf of the appellant that the appellant died during pendency of the first appeal on 22.06.2002 and the substitution petition was filed within the stipulated time under Order XXII Rule 3 read with Order 1 Rule 10 and Section 151 of the CPC.
6. It is argued that the death certificate issued by one doctor D. V. Singh was also annexed in support of the plea that the appellant had died on 22.06.2002, but despite this, the order for substitution was rejected by taking a hyper technical view.
7. Mr. P.K. Mukhopadhyay, learned counsel appearing on behalf of the respondents, argue that First Appellate Court by considering the witnesses examined on behalf of the respondents (R.W.-1, R.W.-2 & R.W-3) held that 2025:JHHC:26609 since the date of death was in dispute, therefore, it was incumbent on the part of the appellant to have examined the Gramsewak or by any other certificate issued by Municipality or Cremation Centre and, therefore, the substitution petition was held to be time barred and the appeal was declared as abated.
8. Having considered the submissions advanced on behalf of both sides, it is yet another case where procedural technicalities appear to have trumped over the cause of substantial justice. Documentary evidence has been filed issued by the doctor stating therein the date of death as on 22.06.2002, whereas the respondents claim that the appellant had died on 21.07.2001.
9. Even if it is assumed to be true that the substitution petition was filed after some delay, law in this regard is settled by the Apex Court that on the limitation matter while hearing substitution petition, it needs to be considered liberally. Further, at no point defendants/ respondents had disputed that the legal heirs proposed to be substituted were not the heirs and descendants of the deceased appellant. It has been held in (2003) 10 SCC 691 (Mithailal Dal Sangar Singh & Ors. Vs. Annabai Devram Kini & Ors.) that the prayer for setting aside the abatement and the dismissal consequent upon an abatement has to be considered liberally. Too technical or pedantic an approach in such cases is not called for.
10.In this view of the matter, this Court is of the view that the order impugned is not sustainable and is accordingly set aside.
Miscellaneous Appeal is allowed.
Since the matter arises out of Title Appeal No 34/1995, therefore, learned Trial Court is directed to expedite the hearing and conclude the same preferably within six months from the date of order. Both the sides to appear before the learned 1st Appellate Court within two weeks of the date of the order. In the event of their non-appearance the learned trial court to proceed as per law.
Pending I.A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.) Pawan/