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TMI Blog2015 (8) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants filed this application with the aforementioned prayers but when this application was taken up of hearing on July 09, 2015 Mr. Md. Yasin Ali, learned counsel appearing for the appellants applicants submitted that due to inadvertence, in the application the applicants omitted to state that the respondent no. 2 since deceased, being the original defendant no. 2 in the suit before the trial Court had filed his written statement but, thereafter, he did not contest the suit and as such in terms of sub-Rule (4) of Rule 4 of Order XXII of the Code of Civil Procedure, hereinafter called as "the Code", the appellants are entitled to be exempted from substituting the legal representatives of the deceased respondent no. 2. For the purpose of incorporating the aforesaid facts, Mr. Ali prayed for leave to file a supplementary affidavit on behalf of the appellants applicants and such prayer was allowed. On August 06, 2015 when this application was taken up for hearing Mr. Ali appearing for the appellants applicants filed a supplementary affidavit disclosing that the decree passed by the trial Court dismissing the suit, against the respondent no. 1 was on contest and ex parte against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the appeal as against the deceased respondent no. 1 is four years and seven months. He further submitted that admittedly the respondent no. 2 had died in the year 1999 and in paragraph 14 of this application, the applicants have admitted that there is a delay of about thirteen years in filing this application for setting aside the abatement of the appeal as against the deceased respondent no. 2. According to Mr. Ghosh, the statements made in paragraph 17 of the application do not contain any explanation in the eye of law for condoning the delay in filing this application for setting aside of the abatement of the appeal against both the deceased respondents. With regard to the contention of Mr. Ali that since respondent no. 2, since deceased did not contest the suit before the trial Court, this Court should exercise discretion under sub-rule (4) of Rule 4 of Order XXII exempting the applicants from substituting the legal representatives of the respondent no. 2, Mr. Ghosh submitted that once the appeal stood abated as against the respondent no. 2, the provisions of sub-Rule (4) of Rule 4 of Order XXII cannot be applied in this case. In support of such contention, Mr. Ghosh reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 4 of Order XXII of the Code to exempt the appellant from the necessity of substituting the legal representatives of any defendant respondent who did not file a written statement before the trial Court or who, having filed it, has failed to appear and contest the suit before the trial Court and judgment may, in such case, be pronounced against the said deceased respondent which shall have the same force and effect as if it has been pronounced before the death took place. No doubt from the records of this case, it is evident that the trial Court had dismissed the suit, as against the deceased respondent no. 1 on contest and as against the deceased respondent no. 2 ex parte. However, the decree of the first appellate Court records that three appeals arising out of three separate decrees passed by the trial Court, in three separate suits on common question of law and fact were rejected against all the respondents, including the respondent no. 2, since deceased on contest. From the said common decree of the first appellate Court, the appellants have filed three separate appeals including the instant second appeal and Mr. Ali admitted that the notice of above second appeal was also ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed on September 05, 2012, a prayer has been made for condoning the delay in filing the application for setting aside of the abatement of the appeal as against both the deceased respondent nos. 1 and 2. In paragraph 16 of the application the appellants applicants have admitted that the delay in filing this application for setting aside of the abatement of the appeal as against the deceased respondent no. 1 is for four years and seven months and the delay in the case of the respondent no. 2 is for thirteen years. This application has been verified by an affidavit affirmed by the appellant no. 5, Brajo Durlav Dhar. The explanation set forth by the applicants in paragraph 17 this application is that it was Bholanath Dhar, since deceased one of the appellants in all the three appeals arising out of the common judgment and decree passed by the learned first appellant Court, in three eviction suits, used to look after all the three second appeals including this appeal. After the death of Bholanath Dhar, it was Jagat Durlav Dhar, the deceased appellant no. 4, who used to look after all the affairs of the three appeals including the instant appeal. The said Jagat Durlab Dhar died in Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside abatement, the period of limitation is 60 days from the date of abatement. Section 5 of the Limitation Act provides that any application may be admitted after the prescribed period if the applicant satisfies the court that he had sufficient cause for not making the application within such period. Sub-rule (5) of Rule 4 of Order XXII gives a clear indication as to what will be sufficient cause. It provides that where the appellant was ignorant of the death of a respondent, and for that reason could not make an application for the substitution of the legal representative of the deceased respondent under Rule 4 within the time specified in the Limitation Act, 1963, and in consequence, the appeal has abated, and the appellant applies after the expiry of the period specified in the Limitation Act for setting aside the abatement and also for the admission of that application under Section 5 of the Limitation Act, on the ground that he had by reason of such ignorance, sufficient cause for not making the application within the period specified in the Limitation Act, the court shall, in considering the application under Section 5 of the Limitation Act, have due regard to the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for setting aside of the abatement of the appeal as against the deceased respondents can be attributed to Deb Durlav Dhar since deceased. It is further alleged that upon the death of the appellant no. 6, Deb Durlav Dhar no one of the remaining appellants of the pending appeals was entrusted to look after the appeals, including the present appeal. In the application it is not the case of the applicants that either the deceased Deb Durlav Dhar or the appellant no. 5, being the deponent of this application, were not aware of the death of the respondents on October 07, 2007 and in the year 1999. It is also alleged by the applicants that in or about March, 2012 Jayati Dey, the daughter of the deceased appellant no. 4 came to know that the respondents were trying to develop the suit premises by entering into an agreement with some developers and thereafter she tried to contact the surviving appellants of the pending appeals and necessary steps were taken for preparation and filing of this application. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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