Calcutta High Court (Appellete Side)
Dilip Kumar Jaiswal & Ors vs The State Of West Bengal & Ors on 22 April, 2024
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
22.04.2024
Item No. 26
PG
Ct. No.7
W.P.A. 4825 of 2005
+
I.A. No. CAN 1 of 2005 (Old CAN 4554 of 2005)
+
I.A. No. CAN 2 of 2013 (Old CAN 5009 of 2013)
+
I.A. No. CAN 3 of 2022
+
I.A. No. CAN 4 of 2022
+
I.A. No. CAN 5 of 2023
+
I.A. No. CAN 6 of 2023
+
I.A. No. CAN 7 of 2023
+
I.A. No. CAN 8 of 2023
+
I.A. No. CAN 9 of 2023
+
I.A. No. CAN 10 of 2023
+
I.A. No. CAN 11 of 2023
+
I.A. No. CAN 12 of 2023
Dilip Kumar Jaiswal & Ors.
Vs.
The State of West Bengal & Ors.
Mr. S. Dutta
Mr. S. Datta .........for the petitioners
Mr. Lalit Mohan Mahata
Mr. P.B. Mahata..........for the State
1.Learned advocate appearing for the petitioners submits that several applications have been taken out for substitution, setting aside abatement as well as for condonation of delay upon the death of the petitioner nos. 6,7 and 8 respectively.
In Re: I.A. No. CAN 7 of 2023 & I.A. No. CAN 9 of 2023 2
2. Petitioner no. 6 died on 12th November, 2021. Upon the death of the said petitioner, an application being I.A. No. CAN 3 of 2022 has been filed for substitution of the heirs/heiress and legal representatives of the deceased/petitioner no. 6. I.A. No. CAN 5 of 2023 has been filed for setting aside the abatement. Since there was a delay in filing application for substitution and setting aside abatement, I.A. Nos. CAN 7 of 2023 and I.A. No. CAN 9 of 2023 have been filed.
3. After hearing the learned advocates for the parties, this Court finds that the petitioner has made out sufficient ground for condonation of delay in filing the application for substitution and the application for setting aside abatement. Accordingly, I.A. Nos. CAN 7 of 2023 and I.A. No. CAN 9 of 2023 are allowed. The delay in filing the application for substitution and the application for setting aside abatement stands allowed.
In Re: I.A. No. CAN 5 of 2023
4. The grounds stated in the application for setting aside abatement is sufficient and therefore, the abatement of the writ petition upon the death of the petitioner no. 6 is set aside. Accordingly, I.A. No. CAN 5 of 2023 stands allowed.
In Re: I.A. No. CAN 3 of 2022
5. The petitioner no. 6 died on 12th November, 2021 leaving behind him surviving the heirs/heiresses and 3 legal representatives as specifically mentioned in paragraph 6 of I.A. No. CAN 3 of 2022.
6. The right to proceed with the instant writ petition survives upon the heirs of the deceased petitioner no. 6 and therefore, the heirs of the deceased petitioner no. 6 are required to be substituted in place and stead of the deceased petitioner no. 6. Accordingly, I.A. No. CAN 3 of 2022 stands allowed. Let the heirs/heiresses and legal representatives of the aforesaid writ petitioner be substituted in place and stead of the deceased writ petitioner.
7. Department is directed to amend the cause title of the instant writ petition by incorporating the heirs and heiress of the deceased petitioner no. 6 in the cause title of the writ petition.
In Re: I.A. No. CAN 4 of 2022 + I.A. No. CAN 6 of 2023 + I.A. No. CAN 8 of 2023 & I.A. No. CAN 10 of 2023
8. Petitioner no. 7 died on 25th January, 2019. Since the application for substitution was not filed within the stipulated time limit, the writ petition stood abated upon the death of the petitioner no. 7. The petitioners have taken out applications being I.A. No. CAN 8 of 2023 and I.A. No. 10 of 2023 for condonation of delay in filing the application for substitution as well as the application for setting aside abatement. 4
9. After hearing the learned advocate appearing for the petitioner and Mr. Mahata, learned advocate for the State, this Court finds that the petitioner has made out sufficient ground for condonation of delay in filing the application for substitution and the application for setting aside abatement. The delay is condoned. I.A Nos. CAN 8 of 2023 and I.A No. CAN 10 of 2023 stand allowed.
10. I.A. No. CAN 6 of 2023 has been filed for setting aside abatement of the writ petitioner no. 7. The grounds for not filing the application for substitution within the time limit is sufficient and, therefore, the abatement of the writ petition upon the death of the petitioner no.7 stands set aside. I.A.No. CAN 6 of 2023 stands allowed.
11. Petitioner no.7 died on 25th January, 2019 leaving behind her surviving her heirs/heiress and legal representatives as specifically mentioned in paragraph 6 of the application being, I.A No. CAN 4 of 2022. Upon the death of the petitioner no.7, the right to proceed with this writ petition survives upon her heirs/heiress and legal representatives. In view thereof, the application for substitution being, I.A No. CAN 4 of 2022 stands allowed. The heirs of the writ petitioner no.7 be substituted in place and stead of the deceased petitioner no.7.
12. The department is directed to carry out the necessary amendments in the cause title of the writ petition by 5 incorporating the names of the heirs/heiress and legal representatives of the said deceased writ petitioner no.7.
In Re: I.A. No. CAN 11 of 2023 + I.A. No. CAN 12 of 2023
13. I.A No. CAN 12 of 2023 is an application by which the applicant has prayed for condonation of delay of 30 days in filing I.A No. CAN 11 of 2023. I.A NO. CAN 11 of 2023 is an application for substitution upon the death of the petitioner no.8. Petitioner no.8 died on 6 th April, 2023 and the application for substitution was filed only on 4th August, 2023. Since the application for substitution was not filed within the statutory period, the writ petition stood abated upon the death of the petitioner no.8. However, taking into consideration the grounds as stated in the application being, I.A No. CAN 12 of 2023 for not being able to file the application for substitution within the stipulated time limit, this Court finds that though the prayer in the said application was for condonation of delay, the same can be treated to be an application for setting aside the abatement as no application under Section 5 of the Limitation Act was necessary in the case on hand as the period of 150 days from the date of death of the petitioner no.8 did not expire. By treating the application being, I.A No. CAN 12 of 2023 as an application for setting aside abatement, this Court finds that the reasons for not 6 filing the application for substitution within stipulated time limit is acceptable. Accordingly, the abatement of the writ petition upon the death of the petitioner no.8 stands set aside.
14. I.A No. CAN 12 of 2023 stands allowed.
15. I.A No. CAN 11 of 2023 is an application for substitution upon the death of the petitioner no.8, who died on 6th April, 2023 leaving behind her surviving her heirs/heiress as specifically mentioned in paragraph 5 of the said application. Upon the death of the petitioner no.8, the right to proceed with this writ petition survives upon her heirs/heiress and legal representatives. Therefore, the application for substitution being, I.A No. CAN 11 of 2023 stands allowed and the heirs/heiress of the deceased writ petitioner no.8 as specifically mentioned in paragraph 5 of the I.A No. CAN 11 of 2023 be substituted in place and stead of the deceased petitioner no.8.
16. Department is directed to amend the cause title of the writ petition by incorporating the names of the heirs/heiress of the deceased petitioner no.8.
17. Let all such amendments be carried out by the department concerned within two weeks from date.
18. List this matter after three weeks.
19. It is submitted by the learned advocate for the petitioner that the affidavits have already been exchanged by the parties. Since, this is a writ petition 7 of the year 2005, the learned advocate for the petitioner is directed to supply photocopies of the affidavit in opposition and the reply filed in connection thereto to Mr. Mahata, learned advocate appearing for the State on or before 24th April, 2024.
(HIRANMAY BHATTACHARYYA, J.)