HASAN AND ORS. Vs. MEENA DEVI AND ORS.

JUDGEMENT

(1.) HEARD Mr. Syed Firoz Raza, learned counsel for the petitioners and Mr. Ganpati Trivedi, learned counsel appearing on behalf of the respondent No. 1. The petitioners are aggrieved by an order dated 15.1.2011 passed by learned Additional District Judge -I, West Champaran, Bettiah, in Misc. Appeal No. 21 of 2009, whereby he has reversed the order dated 26.5.2008 passed by learned Sub -Judge -I, Bettiah, in Title Suit No. 121 of 1999 and set aside the abatement of suit as against defendant No. 7 (Mantara Devi) and allowed the substitution petition filed on 24.12.2007.

(2.) THERE are certain facts which are not in dispute. Defendant No. 7 of Title Suit No. 121 of 1999 died on 25.11.2005. Upon an enquiry made by the plaintiffs, information as regards date of death of defendant No. 7 was furnished to the plaintiff on 19.3.2007. On 26.11.2007, the defendants filed a petition before learned trial Court to the effect that suit stood abated as against defendant No. 7, as the plaintiffs failed to substitute the legal heirs of defendant No. 7. After her death on 25.11.2005, which was within their knowledge at least since 19.3.2007, on 24.12.2007, the plaintiffs, who are respondents herein, filed an application for setting aside the abatement as well as for substitution of legal heirs of defendant No. 7. The said petition dated 24.12.2007 was dismissed vide an order dated 26.5.2008 passed by learned Sub -Judge -I, Bettiah, on the ground that the respondents/plaintiffs failed to give any sufficient cause, which prevented them from filing the petition for setting aside the abatement within time. Learned Sub -Judge, while rejecting the petition dated 24.12.2007 took into consideration the admitted relationship between the plaintiff and defendant No. 7 inasmuch as defendant No. 7 happened to be own Mausi Mother's sister) of the plaintiffs.

(3.) ASSAILING the impugned order dated 15.1.2011 passed by learned Additional District Judge -I, West Champaran, Bettiah, in Miscellaneous Case No. 21 of 2009, Mr. Syed Firoz Raza, learned counsel for the petitioners submits that apparently the plaintiffs/respondents failed to make out a case that there was sufficient cause which prevented them from filing an application for substitution of the legal heirs of defendant No. 7 within the stipulated time and as such learned Appellate Court without considering all the aspects which were considered by the learned trial Court allowed the miscellaneous appeal in contravention of statutory provisions. He submits that unless sufficient reason and due diligence is shown, the delay in filing of substitution petition cannot be condoned as a matter of course. He submits that there was culpable negligence on the part of the plaintiffs/respondents in filing substitution petition within time in spite of knowledge of death of defendant No. 7. He accordingly submits that learned appellate Court wrongly allowed the appeal against a reasoned order passed by learned Sub -Judge -I, Bettiah. In support of his contention he has placed reliance on following two judgments: - -