JAMILA KHATOON Vs. MD MUSTAFA

JUDGEMENT

(1.) IN this I.A., the appellants-applicants have prayed for condonation of delay, for setting aside the abatement and for substitution of heirs and legal representatives of deceased respondent No.2 � Md. Yusuf. Notice was issued to the respondents-opposite parties and they have appeared through their counsel. It has been stated that during pendency of the appeal, respondent No.2 Md. Yusuf died on 23rd July 2011 leaving behind his widow and four sons as his heirs and legal representatives whose names and addresses have been described in paragraph-4 of this application. Though the said respondent died long ago, the appellants could not know about the death and, as such, they could not file application for substitution within time. Due to the said reason, the step for substitution could not be taken up earlier and the appeal is abated.

(2.) LEARNED counsel appearing on behalf of the appellants submitted that there was no wilful negligence or laches on the part of the appellants in not taking steps for substitution of legal heirs of respondent No.2 under the said circumstance beyond their control. Nobody appeared on behalf of the respondents on repeated calls to oppose this application. Considering the facts and circumstances and the submissions of learned counsel for the appellants, this Court is satisfied that there was no deliberate delay on the part of the appellants in not taking steps for substitution of heirs and legal representatives of respondent No.2. This I.A. is, accordingly, allowed. The delay in filing application for substitution is condoned. Abatement is set aside. The prayer for substitution of heirs and legal representatives of respondent No.2 is allowed. I.A. No.112 of 2012 stands disposed of. (Narendra Nath Tiwari, J.) -2- I.A. No.3794 of 2010 In this I.A., the appellants-applicants have prayed for substitution of heirs and legal representatives of deceased respondent No.4 � Md. Minhaz. It has been stated that from the office report, the appellants came to know that the said respondent No.4 Md. Minhaz died on 30.9.2010. Counsel for the appellants thereafter advised the appellants to file application for the said purpose. On getting said information this application has been filed and steps have been taken for substitution of heirs and legal representatives of respondent No.4. It has been stated that the names and addresses of legal heirs of respondent No.4 has been given in detail in paragraph-6 of this application. It has been further stated that the respondent No.5 Amina Khatoon also died during pendency of the appeal, but since her legal heirs are already on record, her name is required to be expunged from the cause title of the appeal. Learned counsel appearing on behalf of the appellants submitted that the delay in filing the application was under the circumstance, as mentioned above, beyond the control of the appellants and there was no wilful negligence or laches on the part of the appellants in taking the said step for substitution. Though the respondents have appeared through their counsel, in spite of repeated calls, nobody appeared to oppose this application. Considering the facts and circumstances and submissions of learned counsel for the appellants, this Court is satisfied that there was no deliberate negligence on the part of the appellants in not taking steps for substitution of heirs and legal representatives of respondent No.4 earlier. This I.A. is, accordingly, allowed. The delay in taking steps for substitution of respondent No.4 is condoned. Abatement is set aside. The prayer for substitution of heirs and legal representatives of respondent No.4 is allowed. I.A. No.3794 of 2010 stands disposed of.