Calcutta High Court (Appellete Side)
Amar Mondal & Ors vs Sushanta Mondal & Ors on 8 March, 2021
08.03.2021
Sl. No.13
Court No.9
BM.
S.A.T 161 of 2019
Amar Mondal & Ors
Vs.
Sushanta Mondal & Ors
With
IA No.: CAN/1/2019 (Old IA: CAN/6728/2019 )
With
IA No.: CAN/2/2019 (Old IA: CAN/8415/2019 )
With
IA No.: CAN/3/2019 (Old IA: CAN/8695/2019 )
With
IA No.: CAN/4/2019 (Old IA: CAN/12146/2019 )
(Via Video Conference)
Mr. Buddadev Ghoshal
Mr. Sauvik Nandy ... for the appellant
Affidavit of service filed in Court be kept on
record which reflects the service has been effected
upon the respondents. Despite that none appears.
In re: CAN 4 of 2019 (Old No. CAN 12146 of 2019)
This is an application for condonation of delay
in filing an appeal arising out of the judgment and
decree dated 21.02.2019 passed by the learned
Additional District Judge, Bongaon, North 24 Parganas
in Title Appeal No. 37 of 2016.
It is submitted that the appellants have filed
the instant appeal on 10.6.2019 before this Hon'ble
Court and it has been reported by the concerned
department that there are 18 days delay in filing the
appeal. Certified copy of the judgment and decree
under challenge was delivered on 21.2.2019 by the
learned Court of Additional District Judge, Bongaon in
the said appeal under reference. The appellants had
applied for obtaining copy of the judgment and decree
on 21.2.2019. Notification to put the requisite stamp
was made on 22.2.2019 and the copy of the judgment
and decree was made ready for delivery on 22.2.2019.
The appellants obtained certified copy from the
concerned department of the learned Appellate Court
below on 25.2.2019. Thereafter, the appellants
pursued the matter with the earned Advocated
engaged in this appeal before the learned Appellate
Court below for conducting the litigation on their
behalf and had obtained his legal opinion to prefer the
instant appeal. Pursuant to the legal opinion, the
appellants/petitioners duly engaged the learned
Advocate the learned Advocate of this Hon'ble Court for
conducting the litigation and sought for his legal
opinion. Accordingly, on perusal of the relevant
records and the copies of the judgment and the decree
it was opined that the appellants/petitioners should
prefer an appeal before this Hon'ble Court. In the
meantime, Summer Vacation of this Hon'ble Court
commenced on and from 25.5.2019 and the Court was
reopened on 10.6.2019. On the reopening day, i.e. on
10.6.2019, the appeal was filed and registered as
S.A.T. No. 161 of 2019. Thus, there has been delay of
18 days in preferring this appeal. Accordingly, there
was a confusion in calculating the day on the part of
the learned Advocate for the appellants whether it
would be counted from the date of the judgment or
from the date of the decree which was beyond the
control of the appellants.
Upon hearing the learned Advocate appearing
on behalf of the appellants and in consideration of the
explanations in the averments made in paragraph 12
of the application, this Court accepts it as satisfactory
and sufficient and accordingly, the delay of 18 days in
preferring the Memorandum of Appeal is hereby
condoned.
Thus, the application being CAN 4 of 2019 (Old
CAN 12146 of 2019) is disposed of.
Re:IA No.:CAN/2/2019 (Old IA: CAN/8415/2019)
This is an application for substitution of legal
heirs of the deceased Arjun Mondal, defendant no.21,
Usha Mondal, defendant no.35, being non-contesting
respondents on account of their death. It is submitted
by referring to the order dated 5.9.2019 that as far as
the death of Usha Mondal is concerned, the same has
been noted and the name of Usha Mondal has been
deleted from the parties since heirs were already on
record before the Lower Appellate Court and are
respondent no.18, 19 and 36 to 39 in the appeal before
this Hon'ble Court. However, a copy of this application
was ordered to be served to the heirs of Arjun Mondal
as indicated in the paragraph 7 of the application. The
affidavit of service as filed before this Court shows that
compliance of the direction for service has been
effected in compliance of the order dated 05.09.2019.
It is submitted that the defendant no.21 Arjun Mondal
died on 29th November, 2017 but the appellants had no
knowledge about the death and it was learnt through
the postal track record. It is also submitted that the
two defendants namely Arjun Mondal and Usha
Mondal did not contest the title suit separately by
filing separate written statement and had been entered
appearance in the suit. Now the appellants/petitioners
had sought for substitution of the names of heirs of
Arjun Mondal, defendant no.21 who are major sue
juris and legally capable of representing themselves
and their names have been mentioned in the
paragraph 7 of the application.
Accordingly, having heard the learned advocate
for the appellants and in consideration of the
application and further in consideration of the
submissions that during the pendency of the suit
before the learned trial court and that the decree has
been filed with such dead person on record and it is
not clear whether the provision of Order 22 Rule 10A
of the Civil Procedure Code was complied with or not.
Let the names of the legal heirs mentioned in
paragraph 7 of this application be substituted in place
and stead of Arjun Mondal, defendant no.21, since
deceased, upon setting aside the abatement of
condonation of statutory delay in not taking steps.
With this direction, the application being IA
No.: CAN/2/2019 (Old IA: CAN/8415/2019) is
disposed of.
Re :IA No.: CAN/3/2019 (Old IA: CAN/8695/2019)
In view of the order passed in IA No.:
CAN/2/2019 (Old IA: CAN/8415/2019), the
application being IA No.: CAN/3/2019 (Old IA:
CAN/8695/2019) be disposed of as the application
was taken out afresh for abandon precaution and save
the situation for the purpose of substitution of name of
the heirs of the deceased, the respondent no.21 as per
the particulars made in the application.
Thus, IA No.:CAN/3/2019 (Old
IA:CAN/8695/2019 ) is disposed of.
Let the matter be placed before the appropriate
Division Bench of this Hon'ble Court for hearing under
Order 41 Rule 11 of the Civil Procedure Code.
The Department is directed to take necessary
steps to amend the cause title of the memorandum of
appeal.
(Shivakant Prasad, J.)
