Gauhati High Court
On The Death Of Late Tapeswar Kumar His ... vs Sri Thaneswar Kumar on 8 March, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/7
GAHC010095982018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil) 1611/2018
1:ON THE DEATH OF LATE TAPESWAR KUMAR HIS LEGAL HEIRS SRI
MAKAN KUMAR AND 7 ORS
W/O LATE TAPESWAR KUMAR, R/O VILL. KUMARPARA, MOUZA DANHI,
P.S. MANGALDAI, DIST. DARRANG, ASSAM, PIN 784125
2: PRANJAL KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
3: KALPANA KUMAR
D/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
4: SRI BONO KUMAR @ SRI BANDANA KUMAR
D/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
Page No.# 2/7
5: SRI ALPANA KUMAR
D/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
6: SRI KAMAL KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
7: SRI ARUN KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
8: SRI AMAL KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 78412
VERSUS
1:SRI THANESWAR KUMAR
S/O LATE TANKESWAR KUKMAR @ TANGALU, R/O KUMARPARA, MOUZA
DANHI, P.S. MANGALDAI, DIST. DARRANG, ASSAM, PIN 784125
Advocate for the Petitioner : MR. P UPADHYAY
Page No.# 3/7
Advocate for the Respondent : MR. T ISLAM
Linked Case : RSA 129/2018
1:ON THE DEATH OF LATE TAPESWAR KUMAR HIS LEGAL HEIRS SRI
MAKAN KUMAR AND 7 ORS
W/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
2: PRANJAL KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
3: KALPANA KUMAR
D/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
4: SRI BONO KUMAR @ SRI BANDANA KUMAR
D/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
5: SRI ALPANA KUMAR
D/O LATE TAPESWAR KUMAR
Page No.# 4/7
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
6: SRI KAMAL KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
7: SRI ARUN KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
8: SRI AMAL KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
VERSUS
1:SRI THANESWAR KUMAR
S/O LATE TANKESWAR KUKMAR @ TANGALU
R/O KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
Advocate for the Petitioner : MR. P UPADHYAY
Page No.# 5/7
Advocate for the Respondent : MR. T ISLAM
BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
Date : 08-03-2019 Heard Mr. P. Upadhayay, learned counsel to the petitioners and Mr. T. Islam, learned counsel for the sole respondent.
This is an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 469 days in preferring the connected second appeal arising out of the judgment and decree dated 5.10.2016 passed by the learned Civil Judge, Darrang at Mangaldoi in Title Appeal No. 3/2008.
The present respondent as the plaintiff filed the suit for partition wherein the present petitioners were also made the respondents. It is pertinent to mention here that the petitioners were not the defendants rather their predecessor-in-interest was the defendant. The suit was dismissed and Title Appeal No. 3/2008 was filed. In the said first appellate court the respondent filed an application under Order 23 Rule 1 for withdrawal of the suit which was disallowed. A revision petition was filed against the said order which was dismissed in absence of the counsel engaged by the present petitioners. After said dismissal, the first appellate court issued notice and reversed the finding of the learned trial court and decreed the suit of the respondent. A counter claim which was also filed by the predecessor-in- interest of the present petitioners was dismissed. Execution process was initiated and the Lat Mandal concerned visited the suit property, only when the petitioners could come to know about the disposal of the appeal and the subsequent decree passed therein. On verification of the case record in the first appellate court the petitioners came to know of notices which were issued subsequent to the disposal of the revision petition were purportedly shown to be accepted by one of the present petitioners who was respondent No.7 in the appeal. The said service of notice is disputed by Mr. Upadhayay terming the same to be collusive in nature. This as per Mr. Upadhayay was done behind the back of the present petitioners and as such, they could not appear before the first appellate court and there was delay in getting the information about the decree passed by the first appellate court.
Be that as it may, the present petitioner No. 7 normally used to take steps in the suit. On receipt of the knowledge about the disposal of the appeal, the petitioner decided to file a second appeal Page No.# 6/7 challenging the judgment and decree passed by the first appellate court. But owing to illness of petitioner No. 7, he could not come to the court for engaging counsel to prefer the second appeal. However, after receiving the certified copies of the judgment and decree of the first appellate court they contacted the present set of counsel on 5.4.2018 and finally the second appeal was filed on 18.4.2018 alongwith the present delay condonation petition.
Mr. Upadhayay submits that the causes shown in this petition are sufficient to condone the delay and the same may be allowed.
Mr. Islam objects and submits that the ground mentioned in this petition are not at all sufficient to condone the delay inasmuch as the present petitioner No.7 duly received the notices on behalf of all the petitioners and to that effect a certified copy of the process server's report of the notice issued by the first appellate court is also produced. On perusal of the same it is seen that the petitioner No. 7 accepted the notice on behalf of the respondent on 5.2.2016.
I have given due consideration to the submissions of the learned counsel. On perusal of the process server's report as produced by Mr. Islam, it is seen that except the purported signature of petitioner No. 7 there is no signature by any of the persons of the locality witnessing the act of acceptance of the notice by the petitioner No. 7.
Under such circumstances, in my opinion as there is a defect in the process server's report, presumption goes in favour of the present appellants that the petitioner No. 7 did not receive the said notice.
Considering the same I am inclined to accept the grounds shown in the application as the grounds are sufficient to condone the delay of 468 in preferring the connected second appeal which I accordingly do.
Accordingly this Interlocutory Application stands disposed of.
JUDGE Page No.# 7/7 Comparing Assistant