KRISHNA LAL SARKAR Vs. JAHARLAL SARKAR

JUDGEMENT

(1.) This is to consider an application filed by the plaintiff for condonation of delay for filing the present application and to set aside the abatement along with other prayers.

(2.) It is stated in the petition that the petitioner/plaintiff filed one application earlier on 13th April, 1989 before this Court for granting of probate of the last Will to the executor and for citation to be directed for issuance along with other prayers. The defendant filed an objection and the matter was re-numbered as T.S. No. 6 of 1992. It is also stated that on 20.9.1994 the defendant died leaving behind his successors namely Smt. Gita Rani Sarkar, widow and two sons namely Samir Kumar Sarkar and Shib Kumar Sarkar. But due to wrong advice of the learned Advocate for the petitioner no steps could be taken by the petitioner for bringing the legal representatives of the defendant on record for which the suit abated. On 22.1.2602 an application being G.A. No. 234 of 2002 was moved before Mr. G.C. De, J. for early hearing of the suit and the matter had appeared on 30.1.2002 for taking necessary steps. In the circumstances, the present application arose.

(3.) The opposite party has contested the application by filing an affidavit-in-opposition wherein it is inter alia stated that the application is not maintainable and that the Cause Title of the petition is incorrect and also that the application is barred by limitation. In this connection, it is pointed out that the intimation about the death of the defendant Jahar Lal Sarkar was given on 9th Jan., 1994 and the application for recording the death and substitution was made in the month of Jan., 2002. It is also stated that there is no reason stated in the petition to substantiate such delay except that due to wrong advice of the learned Advocate the application could not be filed. It is again stated that there is no indication as to when the petitioner asked his learned Advocate to file such application and when the change of the learned took place. Moreover the name of such learned Advocate purported to have given wrong advice was not mentioned in the petition.