RADHEY SHYAM GUPTA Vs. KAMAL OIL

JUDGEMENT

(1.) To condone, or not to condone, is the only short question that needs our consideration in this appeal. What we have to consider here in this appeal is the effect of delay in re-filing of an application for substitution of legal heirs after removal of objection put up by the Registry on the said application.

(2.) The facts that have led to the filing of this appeal are that the appellant along with respondent No.7 had filed a Company Petition being CP No.1/1982 in the year 1982 under Sections 397,398,402 and 403 of the Companies Act, 1956. The said Company Petition was dismissed as not maintainable by an order passed by the then Company Judge on 7/2/1984. Aggrieved by this order of dismissal, the appellant along with respondent No.7 filed a Company Appeal being Company Appeal No.8/1984 which was allowed by a Division Bench of this Court vide order dated 26/11/1998 and the case was remitted back to the Company Judge for disposal on merits.

(3.) Subsequent to remand, while the case was pending before the Company Judge, respondent No.3 expired and his legal heirs were brought on record but they did not file any affidavit in their evidence. The petitioner No.1 had filed his affidavit in evidence on behalf of the petitioners on 21.10.2002. After filing of the affidavit in evidence, the petitioner No.1 expired on 7.2.2004 He died leaving behind his widow, two sons and two daughters. An application under Order XXII Rule 3 CPC for substitution of the above legal heirs of petitioner No.1 was filed on 12.3.2004 This application was within limitation of 90 days prescribed for the said purpose. However, the Registry put an objection on the aforementioned application for substitution of legal heirs of petitioner No.1 and the objection of the Registry was that the advance copy of the application was not served on one of the respondents. After demise of petitioner No.1, there was dissension amongst his legal heirs and they divided in two camps. The objection raised by the Registry on the application for substitution of legal heirs was not removed on behalf of the legal heirs of petitioner No.1 for about 6" months. The application was taken back by the counsel from the Registry on 5.10.2004 and after removal of objection was re- filed on 12/10/2004 Before this application could be re-filed, the respondents filed an application being CA No.1164/2004 for dismissal of the petition as having abated and the legal heirs of petitioner No.1 filed an application being CA No.1194/2004 for condonation of delay in re-filing of application for substitution of legal heirs after removal of objections raised by the Registry.