Sahidullah Munshi, J. - (1.) This is an application for substitution upon the death of Radha Krishna Bera, respondent no.1. The petitioner has filed this application with a comprehensive prayer for condonation of delay in filing the application for substitution and to set aside the abatement, if any. In the application, the appellant/petitioner has stated that one Nilanjana Nayak (Das) was engaged by the appellant/petitioner as his Advocate to conduct the second appeal. During the pendency of the second appeal Radha Krishna Bera, respondent no.1 died intestate leaving behind him surviving the legal heirs and heiresses and/or legal representatives whose particulars have been mentioned in paragraph 14 of this application. The said Radha Krishna Bera died intestate on 20th October, 2011. The present application was affirmed on 28th September, 2016 and was filed before this Court on 29th September, 2016.
(2.) According to the petitioner, the application has been filed with a period of delay of about 1655 days from the date after expiry of the statutory period of 90 days, that is, 20th October, 2011. The petitioner has averred the explanation in support of condonation of such delay in paragraph 10 to 13. To explain the delay the petitioner has stated that he tried to contact his learned Advocate Ms. Nilanjana Nayak (Das) time and again but he could not meet her. Ultimately, on 16th September, 2016, the petitioner when came to Court to meet his said learned Advocate, he could not contact her. However, incidentally, on the same day, the petitioner came to learn that his learned Advocate was no more attending Court as the said learned Advocate left the profession and joined Government service. Finding no other alternative, the petitioner contacted a new learned Advocate on 18th September, 2016 and took steps for filing the substitution application which was, ultimately, filed on 29th September, 2016 and this is how the entire delay was caused. According to the petitioner, on 16th September, 2016, he came to learn that his learned Advocate left the profession and joined Government service and on 18th September, 2016, he contacted the present new Advocate and 10 days thereafter, he affirmed the affidavit in support of this application which was filed on 29.09.2016. The petitioner submitted that there is no fault on his part to take out the application for substitution in time. Therefore, the application should be allowed after condoning the unintentional delay and the abatement be set aside.
(3.) Mr. Dutta, learned Advocate appearing for the opposite party, has filed an affidavit-in-opposition controverting the averments made by the petitioner in his application. Mr. Dutta submitted that prayer for condonation of delay should not be allowed on two grounds, firstly, no diligence on the part of the petitioner has been shown that he was vigilant about his matter and secondly, no explanation is available from the application as to why he could not take such steps in time. Mr. Dutta has relied on the following decisions - • Perumon Bhagvathi Devaswon, Perinadu Village - Vs. - Bhargavi Amma (dead) by LRs. & Ors. reported in, 2008 8 SCC 321; • Balwant Singh (dead) - Vs. - Jagdish Singh & Ors. reported in, 2010 8 SCC 685; • Katari Suryanarayana & Ors. - Vs. - Koppisetti Subba Rao & Ors. reported in, 2009 AIR(SC) 2907 and • Basawaraj & Anr. - Vs. - Special Land Acquisition Officer reported in, 2013 14 SCC 81.;