(2.)Order impugned in this appeal has been passed by a Division Bench of the Jharkhand High Court in Letters Patent Appeal upholding order passed by learned single Judge whereby regular First Appeal filed by the defendants against decree passed in a partition suit involving approximately 116 acres of land allowing claim of the plaintiffs has been disposed of holding that the entire appeal has become incompetent as during the pendency of the appeal, appellant No. 2-Kashinath Sao (defendant No. 2), appellant No. 3- Buchua Devi (defendant No. 3), appellant No. 22-Guru Dayal Sao (defendant No. 19) and appellant No. 41-Ugni Devi (defendant No. 35) expired and as no steps for substitution of their heirs and legal representatives were taken within the time prescribed, the same abated and application for substitution of their heirs after setting aside abatement and condonation of delay was rejected after recording finding that no sufficient cause was shown either for condonation of delay or setting aside abatement.
(3.)The short facts are that when First Appeal No. 307 of 1989(R) was listed for hearing, appellants' counsel wrote a letter intimating the client about listing of the matter whereupon one of the appellants in the appeal came on 18th September, 1998, met his counsel and during the course of discussion, it transpired that appellants Nos. 2, 3, 22 and 41 had already expired whereupon the counsel instructed the client to go to the village and bring the Vakalatnama from the heirs and legal representatives of the deceased persons for filing substitution application. After obtaining the Vakalatnama, the client came back on 20th September, 1998 and thereafer on 24th September, 1998, substitution application was filed making a prayer therein for expugning the name of appellant No. 2 and making a note that he died on 10th April, 1997 leaving behind appellants Nos. 5, 9 and 10 as his heirs and legal representatives who were already on the record, besides a daughter Sheela Devi for whom prayer was made for bringing her on the record in place of the deceased appellant as it is well settled that in such an eventuality, left out heirs can be brought on the record at any time irrespective of the period of limitation. Further prayer was made in that application for substitution of the heirs and legal representatives named therein of appellants Nos. 3, 22 and 41 after condonation of delay in filing the application for setting aside abatement and setting aside abatement. Appellant No. 3 died on 19th December, 1997, No. 22 died in the month of February, 1993 and No. 41 died in the year 1995. In the said appeal, there were 41 appellants belonging to different families, villages and police stations. Some of the appellants who were contesting defendants were members of joint family of the plaintiffs and the contesting defendants whereas others were transferees. As some of the heirs of appellant No. 2 were already on the record his appeal did not abate and prayer for bringing on record one left out heir was made for which there is no period of limitation. So far appellant No. 3 is concerned, there was delay of 130 days in filing the application for substitution. However, in relation to appellant No. 22, the delay was about five years and in relation to appellant No. 41, the delay was about three years, both of whom were transferees and belonged to villages different than the village and police station in which members of joint family of the plaintiffs and contesting defendants resided. The appellants before the High Court were rustic and illiterate villagers and undisputedly no sooner their lawyer advised, steps were taken with utmost expedition without any loss of time.