MAHENDRA TANTI Vs. JAGARNATH TANTI

JUDGEMENT

(1.) THIS civil revision is against the order dated 12.1.2004 passed in Misc. Appeal No. 2A of 1999 by which the Court below has dismissed the appeal. The said appeal was against the order of the Trial Court whereby the petitioner 'spetition for setting aside the abatement was rejected.

(2.) THE fact of the case in brief is that original plaintiff of Title Suit No. 6 of 1994, Muni Lal Tanti, died during the pendency of the suit on 28.12.1994. The application for substitution was filed by the petitioner on 16.5.1996 after the suit was abated. The said application was not pressed. Subsequently, another application dated 10.6.1997 was filed praying for setting aside the abatement. The said petition was taken up by the Trial Court and it was found that there was absolutely no explanation for delay in filing the application for substitution and for setting aside the abatement and in absence of any such petition, the Trial Court rejected the petitioner 's application and refused to set aside the abatement by order dated 20th May, 1999. Against the said order, the petitioner filed an appeal before the District Judge, Sahibganj which was registered as Civil Miscellaneous Appeal No. 2A of 1999. The said appeal was heard and disposed of by the Additional District Judge 1st, Sahibganj by the impugned order. After discussion and consideration of the grounds taken in the appeal, the Lower Appellate Court found that no sufficient cause was shown for the inordinate delay in filing the application for substitution and for setting aside the abatement and the Trial Court had rightly dismissed the suit and refused to set aside the abatement as the same was not supported by sufficient reasons. The Lower Appellate Court, thus, found no merit and dismissed the appeal.

(3.) MR . M.S. Akhtar, learned counsel appearing on behalf of the opposite parties, submitted that the petitioner was guilty of wilful and deliberate laches in filing the petition for substitution within time and even at the time of filing the said petition, no prayer was made for condonation of delay and for setting aside the abatement. Learned counsel submitted that if a suit is abated and a valuable right accrues to the other side, the said right cannot be taken away lightly unless the party at fault furnishes good grounds and reasonable explanation before the Court for exercise of its discretion and for setting aside the abatement and for condonation of delay. Learned counsel submitted that there is no explanation worth the name for the inordinate delay in filing the application for substitution and even thereafter for filing the application for condonation of delay and for setting aside the abatement after more than a year. Since there was no material before learned Courts below for condonation of delay, the Court below have rightly exercised their jurisdiction and rightly passed their order/judgment. He further submitted that the suit itself was a frivolous suit as the petitioner had already lost suit in which eviction of opposite parties was prayed and after having lost the said suit, the plaintiff had filed another suit praying injunction against them. The suit itself was, thus, without any legal basis and frivolous.