NALINI KANTA DAS Vs. THE COLLECTOR OF CACHAR AND OTHERS

JUDGEMENT

(1.) This appeal is directed against the judgment dated 5.7.69 passed by the District Judge, Cachar, Silchar in Misc. Case No. 120 of 1969.

(2.) On 25.4.81 when the appeal was posted for hearing, it was reported by the learned counsel for the respondent to the counsel of the appellant that respondent No. 5, viz., Nirmal Kumar Choudhury died in 1971. On the basis of the aforesaid information, the counsel for the appellant made enquiries but could not ascertain the fact of death of respondent No. 5, Nirmal Kumar Choudhury. However, on 25.5.81 and application under Order 22, rule 4 of the C.P.C. was filed for substitution of the legal heirs of deceased respondent No. 5. In that application, it has been stated that the said respondent No. 5, Nirmal Kumar Choudhury was arrested in Sylhet (Bangladesh) during the Bangladesh war of 1970-71 and thereafter his whereabout was not known. When the appellate received a letter from his counsel on 25.4.81 stating that it was reported by the counsel for the respondent that respondent No. 5 died in 1971, be made further enquiries but could not ascertain the fact whether respondent No. 5 is dead or still alive. However, on the basis of the said letter of the lawyer, it had come to the knowledge of the appellant that respondent No. 5 died and the petitioner after further enquiries started for Gauhati to meet his counsel for necessary steps and reached Gauhati on 22nd May, 1981. He met his counsel on 23rd May, 1981 and instructed him accordingly. It is stated in paragraph 4 that since respondent No. 5 is reported by the counsel of the respondent as dead, the petition was filed for substitution of the legal heirs of respondent No. 5.

(3.) Along with the petition under Order 22, rule 4 of the C.P.C., the appellant also filed on 25.5.81 an application under Sec. 5 of the Limitation Act for condoning the delay in filing of the application for substitution of the legal heirs of respondent No. 5.