IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.311 of 1989
Jawahar Sah
Versus
Tej Narain Chaudhary
----------------------------------
22. 12.09.2011 Perused the office note dated 09.09.2011.
As prayed for by the learned counsel for the
appellant, the item no.3 i.e. I.A. No.1931 of 2009 is heard
first.
This application has been filed by the appellant
for recall of the order dated 15.07.2008 passed by this
Court. The learned counsel for the appellant submitted
that on that date, the name of the learned counsel, Mr.
Vinay Kirti Singh was not appearing in the cause list and,
therefore, the same could not be marked. In such
circumstances, this Court ordered that the appeal has
abated as against the respondent no.1. Although, the
substitution application being I.A. No.1552 of 2007 has
already been filed and there was prayer for setting aside
abatement also in the said application. Considering the
above facts and circumstances of the case, the order dated
15.07.2008 is recalled.
So far item no.2 i.e. I.A. No.1552 of 2007 and
I.A. No.1930 of 2009 are concerned, those are substitution
applications and application for condoning the delay.
Heard the learned counsel for the appellant
and the learned counsel appearing on behalf of the
respondent nos.3 and 5 on these Interlocutory
2
Applications. In spite of service of notice in substitution
matter on the proposed legal representatives of the
deceased respondent no.1, they have not appeared.
According to the learned counsel for the appellant, the
appellant had no knowledge about the death of the
respondent no.1 because the appellant resides at Panipat.
When he came to know about the death, he filed the
application, therefore, there is delay of about 2 years.
Considering the submission and the
explanation given in the limitation application, I am
satisfied that the appellant was prevented by sufficient
cause from not filing the substitution application within
time. Therefore, the delay in filing the substitution
application is condoned, abatement is set aside and the
legal representatives of the deceased respondent no.1 are
substituted in place of the deceased respondent no.1 after
deleting his name.
It is submitted that the respondent no.1 has
already sold the entire property to this appellant and
others and, therefore, it appears that he has got no
interest. It further appears that in spite of service of
notice in substitution matter, they have not appeared.
Therefore, no notice is required to be sent on them again
in appeal.
So far item no.1 i.e. I.A. No.4006 of 2009 is
concerned, this application has been filed by the
interveners mentioned in detail in the Interlocutory
3
Application for being added as party-respondents in this
appeal on the ground that they have purchased part of the
suit property from the son of the deceased respondent
no.1 and, therefore, it is prayed that they may be added as
party in this appeal. The learned counsel for the
interveners submitted that after selling the property, the
son and other legal representatives of the deceased
respondent no.1 are not taking interest in defending the
appeal and, therefore, if the interveners are not added as
party-respondents, they shall suffer serious loss.
Considering the above facts and circumstances
of the case, the interveners as mentioned in detail in I.A.
No.4006 of 2009 are added as party-respondents in this
appeal. Thus, I.A. No.4006 of 2009 stands allowed.
Saurabh ( Mungeshwar Sahoo, J.)