Calcutta High Court (Appellete Side)
228/1981 on 25 June, 2015
1
25.06.2015
kc 10
S.A.228 of 1981
with
C.R.2232(S) of 1986
With
S.A.1007 of 1980
With
S.A.1008 of 1980
+
(CAN 8810 of 2012)
+
(CAN 8056 of 2012)
+
(CAN 6914 of 2001)
+
(CAN 8794 of 2012)
Mr. Md. Yasin Ali
Mr. Dipankar Mondal
Mrs. Mamata Khatun
...for the plaintiffs/appellants
Mr. Bhaskar Ghose
Ms. Debarati Sen(Bose)
...for the respondents.
Re:C.R.2232(S) of 1986 This is an application filed for setting aside of the abatement of the appeal being S.A.228 of 1981 and leave to substitute the legal heirs and representatives of the appellant no.9 who died on September 03, 1983.
It is the case of the petitioners/appellants in this application that apart from the appeal being S.A.228 of 1981, there are two other appeals involving the same issue of law between the parties which are S.A.1007 of 1980 and S.A.1008 of 1980. According to the 2 petitioner, their uncle Bholanath Dhar was looking after the appeals on behalf of the appellants.
The petitioner has stated that in October 1983, after the death of the original appellant no.9 on September 03, 1983 and in the middle of October the appellant no.1/petitioner no.1 requested Bholanath Dhar to take necessary steps for bringing on records the legal heirs and representatives of the deceased appellant no.9. Thereafter, Bholanath Dhar tried to contact the advocate in the appeals in this Hon'ble Court but he could not contact the advocate, as he was out of station during Puja holidays of this Court. The petitioner no.1 has stated that thereafter he came to know the said Bholanath unfortunately forgot to take steps for substitution. It was in July when the appellant no.1 and Bholanath called on their advocate for ascertaining the actual position of the appeals and to inform the advocate that the appellants have received notice under Section 183(5) of the Calcutta Municipal Corporation Act, 1980 and in course of discussion with the said advocate, it transpired that no step has been taken for substitution of the legal heirs of the appellant no.9. Such discussion took place with the advocate on record when Bholanath was also 3 present and he admitted that by mistake he forgot to inform the death of the appellant no.9 to the Advocte. Thereafter, as per the advice of the advocate the petitioners/appellants have filed this application on July 28, 1986. This application has been verified by two affidavits, one by the petitioner no.1/appellant no.1 and the other by the said Bholanath Dhar.
In these circumstances, Mr. Ali, learned counsel for the petitioners/appellants in the appeals submitted that the delay in filing the application for setting aside of the abatement of the above appeals, in so far as the deceased appellant no.9 is concerned, has been explained bona fide and such explanations are sufficient for condoning the delay in filing the application for setting aside of the abatement.
Mr. Ghosh, learned senior counsel appearing for the respondents, however, contended that there is no explanation in this application as to why the other appellants did not take any step for substituting the legal heirs and representatives of the deceased appellant no.9 within time.
It is the settled principle of law that for the purpose of considering the application for condoning the delay in setting aside the abatement of an appeal 4 Court is not concerned with the length of delay but with the sufficiency of the reasons explained by the applicant.
Keeping this settled principle of law in mind and after considering the statements in the application which has been verified by an affidavit by Bholanath Dhar himself, I am satisfied that the petitioners/appellants have bona fide filed this application and the statements made in this application sufficiently explain the reasons which prevented the petitioners/appellants from filing this application within the statutory period of limitation.
In these circumstances, the application being C.R.2232(S) of 1986 stands allowed.
The department is directed to delete the name of the deceased appellant no.9 from the cause title of the memorandum of appeal filed in the above appeal and to implead Dr. Prabhangshu Kumar Payne and Pradipta Kumar Payne as the appellant no.9A and 9B in place and stead of the original appellant no.9.
With the aforesaid directions, C.R.2232(S) of 1986 stands disposed of.
5
Certified web site copies of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty,J.)