PRAKASH KRISHNA,J. - (1.) THE petitioner herein instituted original suit no.1065 of 1999 against Smt. Samudra Devi for specific performance of contract to sell dated 11th of December, 1996 with the allegation that the defendant agreed to sell the property described at the foot of plaint for a sum of Rs.40,000/- out of which a sum of Rs.20,000/- was given as advance money. But she refused to execute the sale deed within the time agreed.
(2.) DURING the pendency of the suit, Smt. Samudra Devi expired on 19th of April, 2002. To substitute her heirs a substitution application dated 9th of November, 2007 along with an application for condonation of delay in filing the substitution application and to set aside the abatement of the suit was preferred. The respondent no.1 who is claiming heirship of Smt. Samudra Devi on the basis of a Will in her favour, filed objections stating that no case for condonation of delay has been made out. The fact that Smt. Samudra Devi expired on 19th of April, 2002 was communicated by her counsel to the plaintiff's counsel on 9th of November, 2004 and no substitution application was filed immediately thereafter.
(3.) THE condonation of delay in filing the substitution application was sought for by the petitioner on the ground that he had no knowledge about the death of Smt. Samudra Devi before 9th of April, 2007 as she was living in a different village with her relatives at a distance of about fifty miles. The Courts below have refused to condone the delay and rejected the substitution application on the finding that the plaintiff was informed about the death of Smt. Samudra Devi on 9th of November, 2004 and the substitution application was filed on 9th of November, 2007 i.e. after about three years.;