NRIPATI NATH DUTT Vs. RAJLAKSHMI BISWAS

JUDGEMENT

(1.) This is an application by the heirs and legal representatives of the deceased Pashupati Nath Dutt, the plaintiff No. 2 in the above suit for condonation of delay in making the application and for their substitution in his place and stead by setting aside abatement of the suit so far ag the deceased plaintiff No. 2 is concerned. The above suit was instituted by the deceased Pashupati along with other co-plaintiffs in December, 1966 against the defendants for recovery of damages of Rs. 4,21,125/-and other reliefs. During the pendency of the suit, on 6th Dec. 1976, Pashupat? died intestate leaving him surviving his widow, 2 sons and 4 daughters. Subsequently the daughters executed a deed of release dated 18th March, 1971 in respect of their shares in their father's estate. The present applicants are the widow and the 2 sons of the deceased Pashupati Nath Dutt.

(2.) In the petition, the applicants alleged that they had no knowledge of this pending suit and for the first time they came to know about this suit from Nripati Nath Dutt, the plaintiff No. 1 herein on 19th Jan. 1978. Due to aforesaid facts no application for substitution could be made earlier. These allegations are made in paras 6, 7 and 8 of the petition. The present application was taken out on 1st Feb. 1978.

(3.) The defendant No. 3 Nishit Kr. Biswas has affirmed the affidavit-in-opposition for self and on behalf oi the other defendants denying the applicant's allegation of knowledge of the suit on 19th Jan, 1978 from Nripati Nath Dutt. The said denial is contained in paras 8 and 9 of the affidavit dated 14th Feb. 1978. It is to be noted that Nishit Kr. has verified the said two paras of his affidavit as "True to his knowledge." Nishit Kr. cannot have any personal knowledge of any discussion or conversation between the applicants and Nripati concerning the above suit and as such his allegation of personal knowledge as alleged in the said affidavit cannot be accepted as true. The applicants thereafter filed an affidavit of reply on 21st Feb. 1978 reiterating the allegations in the petition. Nripati Nath Dutt also filed a supporting affidavit on 21st Feb. 1978 admitting the applicant's case that they came to know about this suit from Nripati on or about 19th Jan. 1978. The defendants with the leave of court could have filed a supplementary affidavit contradicting Nripati's allegation in his affidavit but no such step was taken by the defendants. The result is that Nripati's said statements are going unchallenged. I therefore, hold that the applicants came to know about the above suit on 19th Jan. 1978.