PRADEEP MEHTA Vs. COL. BISWAJIT BHATTACHARYA

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of the India, preferred against impugned judgment and order dated August 8, 2016 passed by Civil Judge (Sr. Division) 8th Court, Alipore in Misc. Case no. 1 of 2013, arising out of Title Suit no. 15430 of 2011. Petitioner's case in brief is that the opposite party herein claiming themselves as owner of the suit property, instituted aforesaid suit for eviction against the petitioner in respect of the suit property. The petitioner herein is contesting the suit by filing Written Statement. During pendency of the suit plaintiff no. 1 died on April 30th, 2012. It is alleged on behalf of the petitioner herein/defendant that no step was taken on behalf of the plaintiff no. 2 for causing substitution of the legal heirs of the deceased plaintiff no1 within the prescribed period of limitation and as such the suit abated as against plaintiff no 1 on or about 27/9/2012.

(2.) It is further contended that ultimately on January 8, 2013 the legal heirs of deceased plaintiff no. 1 filed an application before the court below under Order XXII Rule 9(2) read with sec. 151 of the Code of Civil Procedure, for setting aside the order of abetment in respect of deceased original plaintiff no. 1 and also for substitution of the petitioners as legal heirs in place of original plaintiff no. 1. Along with the said application, the applicants also filed an application for condonation of delay in making the aforesaid application. The petitioner herein filed affidavit in opposition against said two applications and the said legal heirs also filed their affidavit in reply. Learned court below allowed the said application.

(3.) Mr. Debasis Dey Learned counsel appearing on behalf of the petitioner submits that there are lot of discrepancies and deficiencies in the said application for condonation of delay and in the prayer for setting aside abatement but learned court below allowed the said application going beyond the pleading of the Misc. Case in the absence of any trial on evidence. He further submits that learned court below was erred in holding that the delay and laches of the petitioner was bonafide and unintentional but failed to appreciate that "sufficient cause" as referred to in Sec. 5 of the Limitation act, 1963 can be construed liberally only when the delay is not on account of any dilatory tactics, want of bonafide, deliberate in action or negligence of the applicant. Petitioner's counsel further contended that although both the plaintiffs resided in the same house, as is apparent form the cause title of the suit, the opposite party/plaintiff no 2 took no steps to cause substitution of the legal heirs of the deceased plaintiff no.1 and offered no explanation as to why he did not take steps for causing substitution of the legal heirs of deceased plaintiff no 1, even though she admittedly took legal advice from her advocate in June 2012. He further contended that the elaborate story which has been stated by the petitioner to cover up the malafide and negligent conduct, of opposite party No.2 herein is not believable since the daughters of the deceased were quite competent to file the application for substitution. Learned court below erroneously held that there was delay of three months when applicants themselves prayed for condonation of delay for 102 days. In fact learned court below ought to have considered that there is active nexus between the legal heirs of deceased and the opposite party no .2 and as such court below ought not to have relied upon the cause stated in the prayer for setting aside the order of abatement and/or prayer for condonation of delay and he ought to have dismissed the prayer. In this context he relied upon following judgments :-