Subal Chandra Acharjya & Ors vs Banshidhari Acharjya & Ors

Bibek Chaudhuri, J

Mr. Rameswar Bhattacharjee, Mr. Ram Uday Bhattacharyya, Mr. Tanmoy Chowdhury. Mr. Bhaskar Ghosh, Ms. Debarati Sen (Bose), Mr. Siddhartha Paul

CAN 4253 of 2016 is an application for substitution after setting aside abatement on the death of Subodh Kumar Acharjya, original appellant No.2.

CAN 9896 of 2017 is a connected application under Section 5 of the Limitation Act praying for condonation of delay in filing the application for substitution after setting aside abatement.

In CAN 4253 of 2016, it is stated by the appellants/petitioners that during the pendency of the S.A 492 of 1989, appellant No.2 Subodh Kumar Acharjya died intestate on 19th September, 2006 leaving behind his widow, two sons and married daughter as his legal heirs and representatives. It is further stated by the petitioners that original appellant No.1 being the eldest brother of appellants No.2, 3 and 4 used to look after the instant appeal on their behalf in this court. The said appellant No.1 died during the pendency of the appeal and his legal heirs and representatives were duly substituted. The other appellants were totally ignorant of legal procedure regarding substitution on the death of the original appellant No.2. As such they could not take any step for substitution within the period of limitation on the death of appellant No.2. The appellant No.1 died sometimes in 2000 and the learned Advocate on behalf of the appellants also died in 2002. Therefore, on behalf of the surviving appellants there was practically nobody to look after the instant appeal. The appellants came to know only on 31st March, 2016 when the instant appeal was listed in Lawazima before the Division Bench of this Court on 31st March, 2016. Only then, the appellants could understand that the legal heirs and representatives of deceased appellant No.2 were required to be substituted in the instant appeal. So they have filed the instant application.

By filing CAN 9896 of 2017 the appellants have prayed for condonation of delay of nine years three months and ten days in setting aside abatement of the appeal and substitution. In the said application it is stated by the appellants that appellant No.2 Subodh Kumar Acharjya died on 19th September, 2006 leaving behind the above named legal heirs and representatives. In the instant application also the petitioners have taken the same plea that appellant No.1 used to look after the appeal on behalf of the other appellants. They were absolutely unaware about the status of the instant appeal or the steps to be taken by them on certain eventualities, viz, death of one of the appellants. In the mean time, the learned Advocate for the appellants also died in the year 2002. Subsequently the petitioners contacted the Advocate on record on 23rd April, 2017 and informed him about the death of appellant No.2. They came to know about abatement of the instant appeal when the appeal appeared in the list of a Division Bench of this Court on 31st March, 2016. As the legal heirs of deceased appellant No.2 were absolutely ignorant about the procedure for substitution on the death of appellant No.2, there was delay in filing the application for substitution which may be condoned.

Learned Advocate for the petitioners submits before me that the legal heirs and representatives of the deceased appellant No.2 were absolutely ignorant about the procedure to be followed on the death of original appellant. Moreover, the learned Advocate for the appellants also died in the year 2002. Therefore, the appellants could not take any step in the instant appeal. The appellant No.2 died on 19th September, 2006. The appellant No.1 used to look after the appeal who predeceased appellant No.2 in the year 2000. Therefore, the appellant/petitioners could not take proper step for substitution of the legal heirs and representatives on the death of the appellant No.2.

Mr. Bhaskar Ghosh, learned Senior Counsel on behalf of the respondents/opposite parties, on the other hand, submits that the averment made by the petitioners in both the applications are palpably false and false to the knowledge of the petitioners themselves. The appellant No.1 died on 25th October, 2000. In order to substitute the legal heirs of the appellant No.1, the petitioners filed an application being CAN 1289 of 2001. Subsequently respondent Nos.6 and 14 died and the petitioners preferred applications for recording their death. Therefore, it could not be pleaded that the appellants/petitioners were ignorant about the legal procedure relating to substitution on the death of one of the appellants. The present application has been filed for setting aside abatement and condonation of delay almost ten years after the death of appellant No.2. The petitioners have failed to explain the "sufficient cause" for which they could not file the application for substitution within reasonable time.

It is further submitted by Mr. Ghosh that "sufficient cause" has to receive liberal construction. However it is not intended to promote negligence or inaction on the part of the applicant to whom want of bona fide is imputable. The expression "sufficient cause" implies the presence of legal and adequate reasons. The "sufficient cause" should be such as it would peruse the court, in exercise of its judicial discretion to treat the delay as an excusable one. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. In support of his contention, Mr. Ghosh refers to a decision of the Hon'ble Supreme Court in the Balwant Singh (Dead) vs. Jagdish Singh & Ors. reported in (2010) 8 SCC 685.

I have heard learned Advocates for the petitioners and opposite parties. I have also perused the applications, supplementary affidavit, affidavit-in-opposition and affidavit-in-reply. It is alleged by the petitioners that the appellant No.1 died in the year 2000 and the learned Advocate for the appellants died in 2002 thereafter the appellants could not take any step in the instant appeal. However the order sheet speaks otherwise. The appeal was admitted on 24th June, 1985. The petitioners took step till 17th December, 2007, both in Court as well in department even after the death of appellant No.1 and their learned Advocate. Subsequently the appellants failed to take any step. By an order dated 1st July, 2015, the then Registrar Administration, High Court Calcutta directed the department to sent administrative notice to the learned Advocate to the appellants. Accordingly the notice was issued. In spite of service of such notice the appellants/petitioners did not appear before the Division Bench of this Court on 31st March, 2016.

The conduct of the appellants/petitioners clearly suggests that they were absolutely reluctant and negligent in proceeding with the instant appeal accordingly I do not find any reason to condone the delay and set aside the order of abatement of the instant appeal as against respondent No.2.

Both the applications being CAN 4253 of 2016 and CAN 9896 of 2017 are accordingly rejected on contest, however without cost.