Bholanath Ghosh vs Ramesh Chandra Ghosh
2023 Latest Caselaw 2593 Cal

S/L 19
17.4.2023
Court No.652
SD
                                      CO 2317 of 2021
                                 Bholanath Ghosh
                                        Vs.
                 Ramesh Chandra Ghosh, since deceased, represented by
                          Kabita @ Sabita Ghosh & Ors.

               Mr. S.R. Saha
                                                         ... for the Petitioner.
               Mr. Arjun Samanta
                                                   ... for the Opposite Parties.



                        This is an application under Article 227 of the

               Constitution of India, has been directed against the order

               dated 22.01.2021 passed by the learned Additional District

               Judge, 2nd Court at Barrackpore in Title Appeal No.16, 2018.

                        By the impugned order, the court below was pleased

               to reject appellant's application under Section 5 of the

               Limitation Act and was further pleased to hold that the Title

               Appeal as a whole has been abated against sole Respondent.

The petitioner contended that the petitioner herein as

appellant filed the aforesaid appeal before the First Appellate

Court and during pendency of the appeal, the sole

respondent, Ramesh Chandra Ghosh died on 14.6.2020

during covid pandemic. The appellant herein took out an

application for substitution of the legal heirs of the

respondent on December 23, 2020 and on the same date, an

application under Section 5 of the Limitation Act was also

filed.

Learned court below ignoring the fact that the covid

pandemic situation was prevailing throughout the country at

the relevant point of time was pleased to hold that after

expiry of 90 days reckoned from the date of death, i.e.,

14.6.2020, the appeal has got abated, since no application

for substitution has been made even within 150 days from

the date of death of sole respondent.

Learned counsel appearing on behalf of the petitioner

submits that in view of suo motu writ petition, the Hon'ble

Supreme Court in the judgment reported in (2022) 3 SCC 117

was pleased to extend the limitation period for filing

application up to February 28, 2022 and accordingly, the

application for substitution was well within time and no case

of abatement occurred in the said appeal and accordingly,

learned court below was erred in rejecting the application

under Section 5 of the Limitation Act.

Learned counsel appearing on behalf of the opposite

parties submits that the order impugned reveals that the

name of the legal heirs of the deceased respondent has not

been correctly mentioned in the substitution application.

However, he admits that at the relevant point of time covid

pandemic was prevailing.

Having considered the facts and circumstances of the

case and also considering the judgment as reported in

(2022) 3 SCC 117, the order impugned dated January 22,

2021 is hereby set aside.

Liberty is given to the appellant/petitioner herein to

amend the application for substitution in connection with

correcting the name(s) of the legal heir(s) of the deceased

respondent and in the event of filing such amendment

application, the court below will consider the application for

amendment as well as application under Section 5 of the

Limitation Act and the application for substitution filed by

the appellant in the light of judgment passed by the Hon'ble

Apex Court, reported in (2022) 3 SCC 117 at the earliest.

Accordingly, CO 2317 of 2021 is disposed of.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)