KHOWNISH CHANDRA TARAFDAR Vs. NIRMESH CHANDRA TARAFDAR

JUDGEMENT

(1.) The sole appellant admittedly died on 12.08.2011 during pendency of the appeal. Prayer for substitution has been made through I.A. No. 6350/2016 after considerable delay of about 981 days which is sought to be condoned through I.A. No. 6860/2016. Since the appeal stood abated, an application for setting aside of the abatement has been made through I.A. No. 7147/2016.

(2.) Learned counsel for the applicants submits that the appeal was admitted for hearing on 06.02001. Thereafter, the case has remained pending. Applicants are the two sons of the sole appellant. They have made efforts to inform the factum of death to erstwhile counsel, but perhaps, steps were not taken within time. The delay has not been intentional on their part in seeking substitution. However, because of delay in seeking substitution, abatement has set in. Therefore, applicants pray for setting aside of the abatement after condonation of delay and their formal substitution in place of the sole appellant. Reliance has been placed upon a judgment rendered by the Hon'ble Supreme Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by LRS and others [((2008) 8 SCC 321]. He submits that the Hon'ble Court has taken note of the fact that the appeal pending in a High Court is not posted on a fixed date of hearing periodically when a party or his counsel is expected to appear on those dates and keep track of the case. Once the appeal is admitted for hearing, it virtually goes into storage and is listed before the court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. There is nothing that appellant is required to do during the period between admission of the appeal and listing of the appeal for arguments (except filing paper books or depositing the charges for preparation of paper books wherever necessary). The application therefore, for setting aside of the abatement which has set in, should be considered in a liberal manner. Abatement is not dependent upon any judicial adjudication or declaration of such abatement by a judicial order. It occurs by operation of law. But nevertheless, "abatement" requires judicial cognizance to put an end to a case as having abated. Learned counsel submits that though abatement has to be construed strictly in terms of the provisions of Civil Procedure Code, but a liberal approach is adopted in matters of setting aside of abatement, so that the case may not be rendered undecided on merits. On those principles therefore, this Court may condone the delay, set aside the abatement and allow the applicants to be substituted in place of the sole appellant.

(3.) Counsel for the Respondent has opposed the prayer. Counter affidavit has also been filed, stating that the plea for setting aside of the abatement and condonation of delay is vague. No specific dates are given as to when the applicants contacted the Advocate of the High Court conducting the case and informed about the death of his father. The delay is also more than five years and is inordinate. Therefore, the explanation furnished is not adequate to be condoned. The appeal therefore deserves to be held as abated.