High Court Patna High Court - Orders

Azizul Haque vs Md. Motiur Rahman &Amp; Ors on 20 April, 2011

Patna High Court – Orders
Azizul Haque vs Md. Motiur Rahman &Amp; Ors on 20 April, 2011
                   IN THE HIGH COURT OF JUDICATURE AT PATNA
                                        MJC No.1482 of 2011
                                          AZIZUL HAQUE
                                                Versus
                                  MD. MOTIUR RAHMAN & ORS
                                             -----------

For the Petitioner : M/s Arshad Alam and Gautam
Kumar Yadav, Advocates.

For the Opp. Parties: Mrs. Saba Ashfaque, Advocate

———

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. )