Narayan Chandra Sil, J. - (1.) This is to consider an application for substitution after setting aside the abatement along with the application under Section 5 of the Limitation Act. It is stated in the petition that the defendant/O.P. No. 1 died on 10.10.1998 corresponding to 23rd Aswin, 1405 B.S. and the appellants were not aware of the fact that the application for substitution is required to be made and thus in view of such ignorance of law necessary steps could not be taken within the specified period for substitution and hence the delay. It is also stated in the petition that on 17.1.2001 the office submitted a report which appeared before the Lawazima Court on 7.3.2001 wherefrom the appellants came to know that the defendant/opposite party No. I died on 10.10.1998. The application under Section 5 of the Limitation Act is also in the same tuning. Both the applications have been contested by the O.P. Nos. 1(e) to 1(f) claiming themselves to be the legal heirs of Nemai Chandra@ Charan Singh who was the defendant/respondent No. 1 by.filing affidavits-in- oppositions. All the material allegations have been denied in the affidavits-in-oppositions. It is stated, inter alia, that the date of death of Nemai Chandra Singh was known to all his nephews including the petitioner Samar Singh who had sworn affidavit. It is further stated that Nemai Chandra Singh was murdered for political reasons and the news was published in so many popular daily newspapers. It is also stated that all his nephews including Samar Singh had attended the cremation of Nemai Charan Singh. It is also claimed that his nephews including the petitioner Samar Singh attended shrad ceremony of Nemai Charan Singh.
(2.) On scrutiny it appears that Nemai Charan Singh was the sole defendant/respondent. It further appears from the record that on the death of the sole appellant/plaintiff his legal heirs were substituted and as one of the legal heirs denied to be the appellants, she had been transposed as respondent No. 2, better to be said as proforma respondent No. 2. Thus, the legal position is that the appeal cannot proceed and the cause of action does not survive either in the absence of Nemai Charan Singh or his legal representative.
(3.) The learned Advocates for both the parties have cited a number of case law in this regard. Thus, the learned Advocate for the applicant has referred to the ratio decided in the case of Collector, Land Acquisition, Anantnag & Anr. v. Mst. Kati and Ors., AIR 1987 Supreme Court 1353 in which the Hon'ble Supreme Court enunciated the principle of liberal approach to be adopted for the condonation of delay and those are as follows:- ".1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." The learned Advocate for the O.P. has referred to the ratio decided in the case of Union of India v. Ram Charan (deceased), AIR 1964 Supreme Court 215 in which it was, inter alia, held that the limitation. for an application to set aside abatement of a suit does start on the death of the deceased respondent, It is also observed that Article 171, First Schedule to the Limitation Act provides the same. The Hon'ble Supreme Court was specific to hold in that case that it does not provide the limitation to start from the date of the appellant's knowledge thereof. The learned Advocate for the O.P. has also referred to the ratio decided in the case of Govind Rao & Anr. v. Mahadev, AIR 1977 Supreme Court 627 in which the Hon'ble Supreme Court was pleased to reject the prayer for condonation of delay on the ground that sufficient cause could not be established. The learned Advocate for the O.P. has also referred to the ratio decided in the case of Steel Authority of India Limited v. R.N. Datta, AIR 1984 Calcutta 118 in which it was, inter alia, held that the petitioner praying for condonation of the delay has to prove that he was diligent and he has also to explain day-to-day delay from the last day of limitation. The learned Advocate for the O.P. has also referred to the ratio decided in the case of Hindusthan Petroleum Corporation Limited v. Y.G. Joshi, AIR 1991 Supreme Court 933 in which a Special Leave Petition was dismissed on the ground of limitation which could not be explained satisfactorily. The learned Advocate for the O.P. has also referred to the ratio decided in the case of M/s. Kokarmal Gurudayal v. Sagarmal Bengani, AIR 1972 Calcutta 430 in which it was, inter alia, held that ignorance of law arising from not taking any legal advice was not sufficient cause for the condonation of delay under Section 5 of the Limitation Act.;