Swapan Guha vs Smt. Pratima Bagchi
2022 Latest Caselaw 7579 Cal

16.11.2022
 Item No.06
Court No.32
Avijit Mitra
                                FA 40 of 2017
                                    with
                             IA No.CAN 3 of 2022
                               Swapan Guha
                                 - Versus -
                             Smt. Pratima Bagchi
                                    and
                 IA No.CAN 1 of 2019 (Old No. CAN 10 of 2019)
                              Smt. Pratima Bagchi
                                          - Respondent/Applicant.

Mr. Tanmoy Mukherjee, Mr. Kamal Mishra, Mr. Souvik Das, Mr. K. Roshan Ahmed, Mr. Subhodeep Maitha, Mr. Rudranil Das ...for the appellant Mr. Debdutta Sen, Mr. Siddhartha Chatterjee, Mr. Malay Sen, Ms. Suchismita Ghosh Chatterjee ...for the respondent

The present application being CAN 3 of 2022 is an

application for substitution of legal heirs of the sole

appellant, namely, Swapan Kumar Guha together with a

prayer for setting aside abatement upon condonation of

delay.

Mr. Mukherjee, learned advocate appearing for the

appellant submits that during pendency of the appeal,

the sole appellant, namely, Swapan Kumar Guha died

intestate on 13th September, 2019 leaving behind his legal

heirs, as detailed in paragraph 4 of the application. The

said legal heirs are all major and sui juris. After the

pandemic and resumption of normal functioning of the

Court, the appellant's learned advocate wanted to contact

the appellant. The mobile number of the appellant was

with the learned advocate and he tried to contact the

appellant over the said mobile number on 6th February,

2022. In answer to the phone call, the learned advocate

was informed that the appellant had expired on 13 th

September, 2019. In view thereof, the learned advocate

instructed the legal heirs to immediately contact him

along with all relevant documents so that he can take

appropriate steps in the appeal. Thereafter, the learned

advocate was contacted by one of the legal heirs on 13 th

February, 2022 and necessary documents were handed

over to him. The learned advocate thereafter took

sometime to prepare the draft copy of the application and

ultimately filed the same before this Court on 26 th July,

2022.

According to Mr. Mukherjee, the delay which had

occurred stands intervened by a period lost due to the

pandemic. After the necessary documents were handed

over to the learned advocate-on-record of the appellant he

took sometime to file the application. For any laches on

the part of the said learned advocate to draft and file the

said application, the applicants cannot suffer.

The stand taken by the respondent in the affidavit-

in-opposition is that a composite application for

substitution and setting aside abatement upon

condonation of delay is not maintainable. According to

Mr. Mukherjee such stand is not sustainable. A prayer for

bringing the legal representatives on record, if allowed,

would have the effect of setting aside abatement as the

relief of setting aside abatement though not asked for in

so many words is in effect actually asked for and is

necessarily implied. In support of such contention he has

placed reliance upon a judgment delivered in the case of

Mithailal Dalsangar Singh Vs. Annabai Devram Kini

reported in (2003) 10 SCC 691.

He argues that the appellant during his lifetime had

sincerely contested the proceedings. Upon coming to a

finding that the appellant had made out a strong prima

facie case an interim order was passed by a Coordinate

Bench of this Court. The appeal thus has merit. The delay

which has occurred is neither mala fide nor intentional

and the explanation given is sufficient. The legal heirs of

the appellant were not aware of the pendency of the

appeal which was preferred by their father. It is only

when the learned advocate engaged by their father

contacted them over phone, they took appropriate steps

to file the application immediately. In support of his

arguments reliance has been placed upon the judgments

delivered in the cases of K. Rudrappa Vs. Shivappa

reported in (2004) 12 SCC 253, Ram Nath Sao alias Ram

Nath Sahu & ors. Vs. Gobardhan Sao & ors. reported in

(2002) 3 SCC 195, Sital Prasad Saxena (Dead) Vs. Union of

India & ors. reported in (1985) 1 SCC 163.

Placing reliance upon the averments made in the

opposition filed by the respondent, Mr. Sen, learned

advocate appearing for the respondent submits that the

application itself is defective inasmuch as the same is not

accompanied with an independent application under

Section 5 of the Limitation Act for condonation of the

delay which had occurred due to laches on the part of the

legal heirs of the appellant and as such the composite

application is liable to be dismissed. In support of such

contention reliance has been placed upon a judgment

delivered in the case of Sesh Nath Singh & anr. vs.

Baidyabati Sheoraphuli Co-operative Bank Limited & anr.

reported in (2021) 7 SCC 313.

Mr. Sen argues that it is not acceptable that the

legal heirs of the appellant were ignorant about the

proceedings initiated by their father. The legal heirs had

thus in fact not shown any cause towards the delay

which had occurred and as such the application is liable

to be dismissed. In support of such contention reliance

has been placed upon the judgments delivered in the case

of Mehtab Chand Vs. Shriratan Mohta & ors. reported in

AIR 1953 Cal 367 and The Corporation of calcutta Vs.

Murari Churn Law reported in AIR 1976 Cal 299(FB).

Mr. Sen further argues that the conduct, behaviour

and attitude of a party relating to its inaction and

negligence are relevant factors which are to be taken into

consideration. In the present case, the factual scenario

would reveal that the delay which had occurred is

attributable to the applicants and has occurred due to

their indolence and as such the application needs to be

dismissed. In support of such contention reliance has

been placed in the judgment delivered in the case of Esha

Bhattacharjee Vs. Managing Committee of Raghunathpur

Nafar Academy & ors. reported in (2013) 12 SCC 649.

Placing reliance upon the averments made in

paragraph 6 of the affidavit-in-opposition, Mr. Sen has

further argued that in a case pending before the learned

Additional District Judge, Kakdwip, South 24 Parganas

an application was filed by one Mani Shankar Guha for

getting himself substituted in place and stead of deceased

as the only son and legal heir of the deceased. After the

same was allowed, a review application was filed by the

respondent herein. There is a serious doubt as regards

the legal heirship of Abhijit Guha, whose name stands

incorporated in paragraph 4 of the application.

In reply, Mr. Mukherjee denies the contention of

Mr. Sen and submits that the averments made in

paragraph 6 of the affidavit-in-opposition are pertaining

to a separate proceeding and ought not to be taken into

consideration.

Heard the learned advocates appearing for the

respective parties and considered the materials on record.

Records reveal that an application being CAN

10095 of 2016 filed in connection with the first appeal

was disposed of by an order passed by a Coordinate

Bench of this Court on 11th May, 2017 observing inter alia

that the appellant had made out strong prima facie case

to obtain a decree and on such prima facie finding

appropriate interim order passed.

The sole appellant expired on 13 th September, 2019

and the period to file the application for setting aside

abatement expired on 13th February, 2020. Thereafter,

the pandemic period intervened and by an order passed

by the Hon'ble Supreme Court, the period from 15 th

March, 2020 to 28th February, 2022, was excluded from

the period of limitation in different proceedings. The

limitation thereafter started to run and the application

was ultimately filed about five months thereafter on 26 th

July, 2022. It has been averred in the application that

upon resumption of normal functioning to the Court the

learned advocate wanted to contact the appellant and

rang him up on 6th February, 2022. In answer to the

phone call the learned advocate was intimated that the

appellant had expired on 13 th September, 2019. The legal

representatives of the appellant ultimately contacted the

learned advocate on 13th February, 2022 and handed over

relevant documents and thereafter the application was

filed on 26th July, 2022 stating that the learned advocate

took sometime to prepare the draft and to file the same.

Thus for the delay from 13th February, 2022 till the date

of filing of the application, the learned advocate appears

to be responsible. For such laches on the part of the

learned advocate the applicants cannot suffer.

A decision is an authority for what it decides and

not what can logically be deduced therefrom. Even a

slight difference in fact or an additional fact may make a

lot of differences in the decision making process. There is

no dispute as regards the proposition of law as laid down

in the judgments upon which reliance has been placed by

Mr. Sen but they are distinguishable on facts.

It is well settled that the expression 'sufficient

cause' within the meaning of Section 5 of the Limitation

Act should receive a liberal construction when no

negligence or inaction or want of bona fide is imputable to

the party. Acceptance of explanation furnished should be

the rule and refusal an exception. The length of delay is

not a matter but acceptability of the explanation is the

only criterion.

From the sequence of facts, we do not find that the

legal heirs of the deceased adopted any dilatory tactics.

The conduct of the applicants do not on the whole

warrant to castigate them as irresponsible litigants. We

are satisfied with the explanation given towards the delay

in filing the application for substitution and setting aside

abatement and accordingly, we condone such delay and

allow the application being IA No. CAN 3 of 2022.

Office is directed to incorporate the names of the

legal heirs of the appellant, as detailed in paragraph 4 of

the application, in place and stead of the appellant, who

expired, in the cause title of the memorandum of appeal.

The application being IA No. CAN 3 of 2022 is,

accordingly, disposed of.

We have been informed that the appeal is ready for

hearing and paper books have already been filed.

Mr. Sen informs this Court that in the present

appeal an application being IA No. CAN 2 of 2019 (Old

CAN 10 of 2019) has been filed. A copy of the same has

been handed over to Mr. Mukherjee in Court today.

The applicants are directed to file their affidavit-in-

opposition to the said application within two weeks. Reply

thereto, if any, be filed within two weeks thereafter.

Parties would be at liberty to mention the matter for

enlistment and hearing after expiry of the period, as fixed

above towards exchange of affidavits.

All parties shall act on the server copies of this

order duly downloaded from the official website of this

Court.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)