2015 (8) TMI 1403 - HC - Indian Laws

Setting aside of the abatement of appeal and for substitution of the legal representatives of the both the respondent nos. 1 and 2 who died on October 27, 2007 and in the year 1999 respectively - Held that - From the statements made in this application it is evident that the said Jayati Dey was well aware of the factum of the pendency of the above appeal. Further, when the respondent no. 2 had already died in the year 1999 and the respondent no. 1 had died on October 27, 2007, all within the knowledge of the appellant no. 5 deponent, there is no scope to accept the case of the appellants applicants that in March, 2012 Jayati Dey came to know that the respondents were trying to develop the suit property. The only other explanation put forth in this application is that the applicants were not aware of the requirement of law that steps were required to be taken for the substitution of the legal representatives of the said deceased appellants within the period of limitation and they had to file even the application for setting aside of the abatement of the appeal in so far as the said two deceased appellants within the period of limitation. In the instant case, the conduct of the appellants applicants are nothing short of negligent and the explanations put forth for condonation of delay as already discussed are not plausible. It is not the case of the appellants applicants that they are uneducated people. The appellants applicants are not rustic people residing far away from a city of Kolkata. It is not their case that they did not know the Advocate conducting the litigation on their behalf of that they were misled by their Advocate. It was the sheer negligence of the deceased appellants and the present applicants not to inform their Advocate of the death of both respondents. Thus, the explanation put forwards by the appellants applicants that they were not aware of the legal requirement of substitution of the legal representatives of both the deceased respondents within the prescribed time does not appear to be plausible or bona fide. Thus no merit in this application

Summary

Issues Involved:
1. Setting aside the abatement of appeal.
2. Substitution of legal representatives of deceased respondents.
3. Condonation of delay in filing the application for setting aside the abatement.

Detailed Analysis:

1. Setting Aside the Abatement of Appeal:
The appellants sought to set aside the abatement of the appeal and substitute the legal representatives of the deceased respondents, who died in 1999 and on October 27, 2007, respectively. The application for setting aside the abatement was filed on September 05, 2012, long after the appeal had abated against both respondents. The appellants argued that the deceased respondent no. 2 did not contest the suit after filing a written statement, and thus, under sub-Rule (4) of Rule 4 of Order XXII of the Code of Civil Procedure, they should be exempted from substituting his legal representatives. The court, however, noted that the trial court's decree was ex parte against respondent no. 2, but the first appellate court dismissed the appeal on contest against all respondents, including respondent no. 2. The court concluded that the discretionary power under sub-rule (4) of Rule 4 of Order XXII should not be exercised in favor of the appellants, as the respondent no. 2 had the right to contest the second appeal on a pure question of law during his lifetime.

2. Substitution of Legal Representatives of Deceased Respondents:
The appellants admitted the delay in substituting the legal representatives of the deceased respondents. The court emphasized that under Rule 4 of Order XXII, an application must be made to substitute the legal representatives of a deceased respondent within the prescribed period of 90 days from the date of death. The appellants failed to make such an application within the stipulated time, leading to the abatement of the appeal. The court highlighted that the appellants were aware of the deaths of the respondents but did not take timely steps for substitution, attributing the delay to the illness of one of the appellants, Deb Durlav Dhar. However, the court found this explanation unconvincing, noting that Deb Durlav Dhar had previously filed an application for substitution in another matter during his alleged period of illness.

3. Condonation of Delay in Filing the Application for Setting Aside the Abatement:
The appellants also sought condonation of the delay in filing the application for setting aside the abatement. The court referred to Section 5 of the Limitation Act, which allows for the condonation of delay if the applicant can show "sufficient cause" for not making the application within the prescribed period. The court held that the term "sufficient cause" must be construed liberally, but the explanation must be reasonable and plausible. The court found that the appellants' explanation for the delay was not plausible or bona fide, as they were aware of the deaths of the respondents and the legal requirement for substitution but failed to act diligently. The court cited the Supreme Court's decision in Balwant Singh vs. Jagdish Singh, emphasizing that the explanation must persuade the court to believe it is true and worthy of exercising jurisdictional discretion in favor of the applicant.

Conclusion:
The court rejected the appellants' application (C.A.N. 8794 of 2012) for setting aside the abatement of the appeal and for substituting the legal representatives of the deceased respondents. Consequently, the entire appeal (S.A. 228 of 1981) against the respondent nos. 1 and 2 was deemed abated and dismissed. The court did not award any costs considering the circumstances of the case.