IN THE HIGH COURT OF JUDICATURE AT PATNA
SA No.72 of 1984
Harishankar Sing
Versus
Ramchandra Singh& Ors
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64 13-7-2011 The learned counsel appearing on behalf of the
appellant is present,and presses I.A.No. 5319 of 2010.
Nobody appears on behalf of the respondents although the
copy of I.A.No. 5319 of 2010 and the copy of the
supplementary affidavit filed on 11-7-2011 have been served
upon the learned counsel appearing for the respondents.
The substitution petition has been filed stating
therein that appellant no.1(b), Raj Nandan Singh, died on 13-
3-2010 leaving behind his heirs and legal representatives, as
mentioned in paragraph no.1 of the petition. It has also been
stated in the petition that it is being filed within time and the
heirs and legal representatives of the deceased have appeared
through Vakalatnama.
The aforesaid I.A. No. 5319 of 2010 was placed
with the Office note that the petition was out of time. From
the perusal of the petition(I.A.No. 5319/10) it appears that the
date of filing of this petition had been mentioned as 23-6-
2010 although from the petition itself it also appears that the
affidavit had been sworn on 21-6-2010.
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By the order dated 27-6-2011, in view of the
submission by the learned counsel for the appellants
regarding filing of the petition on 21-6-2010, the Office was
directed to verify the fact as to when I.A. No. 5319 of 2010
was filed. It is relevant to take notice that the learned counsel
for the appellants had produced a computer originated chart
of daily interlocutory filing of this Court wherein I.A.No.
5319 of 2010 had been shown to have been filed on 21-6-
2010. The Office has again reported that this I.A.No. 5319 of
2010 had been filed on 23-6-2010 and has pointed out that
there is delay of 101 days after the death of appellant no.1(b).
A supplementary affidavit has been filed on behalf
of the appellants stating that the Court was closed for summer
vacation from 22 -5-2010 to 20-6-2010 and, therefore, the
substitution petition(I.A.No. 5319/10) was filed on the
opening day i.e., 21-6-2010 because the limitation expired
during the vacation period. The photo copy of the computer
originated chart of daily interlocutory filing of Patna High
Court has also been annexed as Annexure-1 to the
supplementary affidavit. A perusal of the chart shows that
there is a clear mention of filing of I.A.No. 5319 of 2010 in
S.A.No. 72 of 1984. That aforesaid statement of fact has not
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been denied by the respondents by filing counter-
affidavit/reply.
In view of the facts stated above, it is held that
I.A.No. 5319 of 2010 had been filed on 21-6-2010, and as
such the substitution petition(I.A.No. 5319/10) is not barred
by limitation.
As noticed above, appellant no.1(b), Raj Nandan
Singh, died on 13-3-2010 leaving behind his heirs and legal
representatives mentioned in paragraph no.1 of the
substitution petition. Let the name of deceased appellant
no.1(b) be expunged from the records of this memo of appeal
and substituted by his heirs and legal representatives, as
mentioned above. It may be noted that all the heirs and legal
representatives aforesaid have appeared in this appeal by
filing Vakalatnama.
I.A. No. 5319 of 2010 is, accordingly, allowed.
( V. Nath, J.)
roy