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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 ..... 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 - C.A.N. 8794 of 2012 in S.A. 228 of 1981 - - - Dated:- 12-8-2015 - Ashis Kumar Chakraborty J. Yasin Ali, Dipankar Mondal, Mamata Khatun, Bhaskar Ghosh, Debarati Bose Advocates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er did not contest the suit before the trial Court, it is a fit case where this Court should exempt the appellants from substituting the legal representatives of the deceased respondent no. 2. According to Mr. Ali, under sub-rule (4) of Rule 4 of Order XXII the appellants applicants are entitled to be exempted from substituting the legal representatives of the deceased respondent no. 2 who died in the year 1999, no matter that the appeal has already abated as against the respondent no. 2 on the ground that his legal representatives were not substituted in the appeal within the statutory period of limitation. Mr. Ali cited the decision of the Full Bench of this Court in the case of Santosh Kumar vs. Nandalal Chakrapani, 1963 AIR(Cal) 289 . ( 2. ) Without prejudice to the above contention, so far as the prayer for condonation of delay in filing this application for setting aside of the abatement of the appeal as against the deceased respondent nos. 1 and 2 is concerned, Mr. Ali submitted that the same has been duly explained in paragraph 17 of the application. The statements contained in paragraph 17 of the application which are set forth to explain the delay in filing this applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Single Judge of this Court cited by Mr. Ghosh reported in 59 CWN 394 and AIR 1975 Cal 12 were on the basis of sub-rule (3) and sub-rule (4) of Rule 4 of Order XXII of the Code as were applicable in Calcutta, before 1976 are no more applicable in view of the insertion of sub-rule (4) of Rule 4 of Order XXII in the main code by way of amendment Act of 1976. In support of such contention, Mr. Ali cited the decision of the Division Bench of this Court in the case of In Re: Nisit Mohan Chatterjee reported in 1997 CWN 636 and another decision of a learned Single Judge of this Court in the case of Sk. Ladla vs. Asamuddin Ansari,1999 1 ILR(Cal) 97 . Since Mr. Ali contended that in the instant case, the deceased respondent no. 2 did not contest the suit before the trial Court, the appellants are entitled to claim exemption under sub-rule (4) of Rule 4 of Order XXII from substituting the legal representatives of the deceased respondent no. 2, I am of the opinion that such contention of Mr. Ali should be decided first. ( 5. ) In the application, the applicants have stated that the respondent no. 2 died in the year 1999 and his legal representatives were not substituted in the appeal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opening words used in sub-section (4) of Section 4 of Order XXII of the Code are The Court whenever it thinks fit may exempt Therefore, a bare reading of the said provision makes it abundantly clear that power of the Court to exempt the appellant from substituting the legal representative(s) of a deceased respondent is a discretionary power and in a given case, the Court can refuse to exercise such discretion. As already found, although the decree of dismissal of the suit by the trial Court was ex parte as against the respondent no. 2, since deceased but the lower appellate court passed the decree of dismissal against all the respondents, including the deceased respondent no. 2 on contest. ( 7. ) In this second appeal the service of notice of appeal on the respondent no. 2 was not dispensed with and the notice of appeal was duly served upon respondent no. 2 during his life time. Thus, a right had accrued to the respondent no. 2 during his life time to contest the second appeal on a pure question of law. Thus, after the death of the respondent no. 2, his legal representatives, if they were substituted within the prescribed period of limitation, also had the right to contest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and 2. Thus, the entire responsibility for the fault has been put on Deb Durlav Dhar, since deceased, that due to illness he did not take any step for substitution of the legal heirs of the deceased respondents. Mr. Ghosh, learned senior counsel appearing for legal representatives of the deceased respondent no. 1 strenuously contended that it is the settled principle of law that the delay in filing an application for setting aside of the abatement of the appeal can be condoned provided the applicants disclose sufficient cause within the meaning of , that is, if the applicants are able to substantiate that there were sufficient reasons which prevented them from filing these applications and there is no act of negligence or lack of diligence, on the part of the appellants applicants but since the appellants applicants have failed to establish such sufficient cause this application should be dismissed. I have heard and considered the submission of both Mr. Ali and Mr. Ghosh, learned counsel appearing for the respective parties in this application. Rule 4 of Order XXII prescribes the procedure in case of death of a respondent. Sub-rule (1) of Rule 4 provides that where a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary delay. The test is whether or not a cause is sufficient, to see whether it could have been avoided by the party by exercise of due care and attention. This view is fortified by the decision of the Supreme Court in the case of Balwant Singh vs. Jagdish Singh, 2010 8 SCC 685 . ( 9. ) In the said case Balwant Singh , the Supreme Court held that the explanation for condoning the delay in filing an application for setting the abatement of appeal against a deceased respondent has to be reasonable or plausible, so as to persuade the Court to believe that the explanation offered is not only true, but is worthy of exercising jurisdiction discretion in favour of the applicant but in the instant case it. ( 10. ) In the instant case the appellants-applicants, the deponents of this application and the deceased appellant no. 6 Deb Durlav had the knowledge of the death of the respondent nos. 1 and 2, but a case has sought to be made out that due to illness of Deb Durlav Dhar he took no step for substitution of their legal representatives in the appeal. This statement made in this application about the illness of Deb Durlav Dhar, since deceased, or his incapability to look after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 requiremen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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