Ashutosh Kundu vs State of West Bengal and Others

Heard the learned Counsel appearing for the parties.

This application has been filed for condonation of delay without praying for setting aside of the abatement of the appeal when fact remains that the appellants died long back. There is no prayer for setting aside of the abatement.

The learned Counsel of the appellants insists that since the appeal arises out of a writ proceeding. there is no question of abatement. The learned Counsel of the appellants referred to and relied on a decision of the Hon''ble Supreme Court in Puran Singh and others Vs. State of Punjab and others, .

The aforesaid decision was passed in connection with an application filed under Article 226 of the Constitution of India. In the instant case, we are concerned with a mandamus appeal. Rule 48 of the writ Rules as framed by this Hon''ble Court covers the field. The said Rule 48 is set out hereunder:

Appeals from orders in this jurisdiction shall be made in the same manner as appeals from orders in the Original Side and appeals from orders in the Appellate Side according as they arise of "Original Side" and "Appellate Side" applications and all Rules applicable thereto in the Rules of the Original and Appellate Side, respectively, shall apply thereto mutatis mutandis:

Provided that unless the Court otherwise directs, no prayer for any interim order shall be entertained unless a copy of an application for such an interim order has been served upon a party, who had lodged a caveat in the form and manner as may be prescribed, and given opportunity of being heard.

In view of the aforesaid Writ Rule 48, the procedures for appeal from orders in the Appellate Side are applicable.

In the aforesaid circumstances, the instant appeal has already abated.

Therefore, liberty is granted to the appellants to file a supplementary affidavit in connection with this application seeking the prayer for setting aside the abatement of the appeal.