RASHPAL SINGH Vs. KISHTOPAD GHARAMI

JUDGEMENT

(1.) Having heard learned Counsel for the either parties, it transpires that one of the defendants/respondents Kishtopad Gharami died on 18.11.2011. The application was moved by rest of the defendants/respondents to dispose of this second appeal as against the deceased Kishtopad Gharami treating the same abated because no substitution application had been moved even after the lapse of almost a year of the death of Mr. Kishtopad Gharami. The appellant/plaintiff, having received the copy of this application, moved the substitution application (C.L.M.A. 11042/2012) within seven days on 10.10.2012 alongwith the delay condonation application (C.L.M.A. 11043/2012) under section 5 of the Limitation Act. in the enclosed affidavit as well as in the delay condonation application, the prayer was made to condone the delay of 267 on the ground that since the plaintiff/appellant is a village rustic person, so he was quite ignorant about the law and the procedure casting a duty on him to move the application within certain time limit. Learned Counsel for the appellant/plaintiff has argued that in the High Court, at second appeal stage the litigants do not remain in touch every time to attend the Court on the date fixed unlike of the Lower Courts. So, he too could not gather any information regarding the death of Kishtopad Gharami. This was the cause of delay. In support of his contention, he has relied upon a judgment of Hon'ble Supreme Court, and that reliance has been answered by the learned Counsel of the defendants/respondents on the basis of the Full Bench judgment of the Supreme Court in another case.

(2.) The sum and substance of all the precedents relied by either of the parties is that although ignorance of law is no excuse, all the same the delay in moving a substitution application may be looked into considering the background of the parties and their surroundings.

(3.) Learned Counsel of the defendants/respondents has unfolded the history of the litigation which is persisting between the parties for last more than one and half decades regarding the property in question. In brief, that can be summarised as under.