IN THE HIGH COURT OF JUDICATURE AT PATNA
MJC No.1482 of 2011
AZIZUL HAQUE
Versus
MD. MOTIUR RAHMAN & ORS
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For the Petitioner : M/s Arshad Alam and Gautam
Kumar Yadav, Advocates.
For the Opp. Parties: Mrs. Saba Ashfaque, Advocate
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03/ 20.04.2011 Heard learned counsel for the petitioner and learned
counsel for the opposite parties.
2. This case has a chequered history. S.A. No. 294 of
2008 was filed by appellant-petitioner, in which I.A. No. 3387 of
2009 was also filed on 19.05.2009 for substituting the heirs of
respondent no.2 Manzar Alam. The said interlocutory application
was considered by this Court on 25.08.2009 when two weeks time
was allowed to appellant-petitioner to file an application for
condoning the delay and setting aside abatement, failing which, the
interlocutory application was to stand dismissed without further
reference to a Bench.
3. The said order was not complied and the said
interlocutory application stood rejected, hence M.J.C. No. 5130 of
2010 was filed by appellant-petitioner, which was allowed by this
Court on 05.01.2011 and the said application was restored, but the
said restoration was made subject to filing of an affidavit with
respect to the date of death of respondent no.2 and also filing of an
application for condoning the delay and setting aside abatement
within one week.
4. It transpires that a supplementary affidavit dated
2
07.01.2011 has been filed by appellant-petitioner stating the date of
death of respondent no.2, but inadvertently no prayer for condoning
the delay and setting aside abatement has been made in the said
affidavit and hence the aforesaid order dated 05.01.2011 was
nullified.
5. In the said circumstances, this M.J.C. No. 1482 of
2011 has been filed by appellant-petitioner for extension of time for
filing an interlocutory application for condoning the delay and
setting aside abatement .
6. Considering the averments made by learned counsel
for the parties, it appears that genuine reasons have been shown,
due to which the said order dated 05.01.2011 has only been partly
complied. Accordingly, this M.J.C. petition is allowed and the time
granted in order dated 05.01.2011 passed in M.J.C. No. 5130 of
2010 is extended up to 25.04.2011 for filing an application for
condoning the delay and setting aside abatement with respect to
respondent no.2 in the second appeal.
7. This order will be subject to payment of cost of
Rs.2,500.00 (Rupees two thousand five hundred only ) by the
appellant to Mrs. Saba Ashfaque, learned counsel for respondents-
opposite parties within one week.
MPS/ ( S. N. Hussain, J. )