Gauhati High Court
On The Death Of Late Phul Kumar Das vs The Union Of India And 3 Ors on 21 May, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/7
GAHC010209392024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/3379/2024
ON THE DEATH OF LATE PHUL KUMAR DAS, HIS LEGAL HEIR
SMT. RANU DAS, W/O LATE PHUL KUMAR DAS, R/O, VILL. and P.O.
SATPUKHLI, P.S. PALASHBARI, KAMRUP, ASSAM, PIN-781132
VERSUS
THE UNION OF INDIA and 3 ORS
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NORTH BLOCK, NEW DELHI-1
2:THE DIRECTORATE GENERAL CRPF
BLOCK NO.1
CENTRAL GOVERNMENT OFFICE
COMPLEX LODHI ROAD
NEW DELHI-110003
3:THE DEPUTY INSPECTOR GENERAL OF POLICE
GROUP CENTER
CRPF
AMERIGOG
GUWAHATI
ASSAM-781023
4:THE COMMANDANT
GROUP CENTER
CRPF
AMERIGOG
GUWAHATI
ASSAM-78102
Page No.# 2/7
Advocate for the Petitioner : MR. R MAZUMDAR, MRS P RAI,MS T WAPANGLA,MR. R
DEKA
Advocate for the Respondent : MR M R ADHIKARI,
Linked Case : I.A.(Civil)/3380/2024
ON THE DEATH OF LATE PHUL KUMAR DAS
HIS LEGAL HEIR
SMT. RANU DAS
W/O LATE PHUL KUMAR DAS
R/O
VILL. and P.O. SATPUKHLI
P.S. PALASHBARI
KAMRUP
ASSAM
PIN-781132
VERSUS
THE UNION OF INDIA and 3 ORS
REP. BY THE SECY. TO THE GOVT. OF INDIA
MINISTRY OF HOME AFFAIRS
NORTH BLOCK
NEW DELHI-1
2:THE DIRECTORATE GENERAL CRPF
BLOCK NO.1
CENTRAL GOVERNMENT OFFICE
COMPLEX LODHI ROAD
NEW DELHI-110003
3:THE DEPUTY INSPECTOR GENERAL OF POLICE
GROUP CENTER
CRPF
AMERIGOG
GUWAHATI
ASSAM-781023
Page No.# 3/7
4:THE COMMANDANT
GROUP CENTER
CRPF
AMERIGOG
GUWAHATI
ASSAM-781023
------------
Advocate for : MR. R MAZUMDAR
Advocate for : MR M R ADHIKARI appearing for THE UNION OF INDIA and 3
ORS
Linked Case : WP(C)/6462/2015
SRI PHUL KUMAR DAS
S/O LT. HARI MOHAN DAS
VILL. and P.O. SATPUKHLI
P.S. PALASHBARI
KAMRUP
ASSAM
PIN-781132
VERSUS
THE UNION OF INDIA and 3 ORS
REP. BY THE SECY. TO THE GOVT. OF INDIA
MINISTRY OF HOME AFFAIRS
NORTH BLOCK
NEW DELHI-1
------------
Advocate for : MS.D DUTTA
Advocate for : appearing for THE UNION OF INDIA and 3 ORS
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
21.05.2025
Heard Mr. R. Mazumdar, learned counsel for the applicant. Also heard
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Mr. M.R. Adhikari, learned CGC for the respondents.
2. This interlocutory application has been filed by the applicant seeking
substitute the legal heirs of late Phul Kumar Das who was the petitioner in
the writ petition being W.P.(C) No. 6462/2015 and who subsequently
expired during the pendency of the writ petition.
3. In the facts of the case, the writ petitioner expired on 10.01.2019
and the present application has been filed seeking to substitute the writ
petitioner by his legal heir who is the applicant. A question arose as to
whether any separate application is required for setting aside the
abatement as the writ petitioner stood abated by efflux of time as steps
were not taken within the period of limitation for substitution of the legal
heirs. In this context, the learned counsel for the applicant has referred to
the Judgment of the Apex Court rendered in Om Prakash Gupta alias
Lalloowa (now Deceased) & Ors Vs. Satish Chandra (Now Deceased)
reported in 2025 INSC 183. From a perusal of the Judgment, it is seen
that by reference to an earlier precedent laid down by the Apex Court
more particularly the reference to a Judgment of the Apex Court rendered
in Mithailal Dalsangar Singh v. Annabai Devram Kini, reported in (2003) 10
SCC 691, it has been held that where an application is filed by the Co-
petitioner or by the legal heirs of the sole petitioner, separate application
for setting aside the abatement of the writ petition is not necessary. The
said application can be treated to be also an application with a prayer for
setting aside the abatement and thereafter the appropriate orders be
passed for impleadment and for bringing on record the legal heirs of the
Page No.# 5/7
late writ petitioner. Upon careful perusal of the Judgment, the relevant
paragraphs of the Judgment of Om Praskash Gupta Alias Lalloowa (Supra)
are extracted below:
"23. We find it difficult to agree with such reasoning. When an application praying for
substitution had been made, then, even assuming that it does not have an explicit
prayer for setting aside the abatement, such prayer could be read as inherent in the
prayer for substitution in the interest of justice. We draw inspiration for such a
conclusion, having read the decision in Mithailal Dalsangar Singh v. Annabai Devram
Kini35. This Court reiterated the need for a justice-oriented approach in such
matters. Inter alia, it was held that prayer to bring on record heir(s)/legal
representative(s) can also be construed as a prayer for setting aside the abatement.
The relevant passage reads as under:
8. Inasmuch as the abatement results in denial of hearing on the merits of the
case, the provision of abatement has to be construed strictly. On the other
hand, the prayer for setting aside an abatement and the dismissal consequent
upon an abatement, have to be considered liberally. A simple prayer for bringing
the legal representatives on record without specifically praying for setting aside
of an abatement may in substance be construed as a prayer for setting aside
the abatement. So also a prayer for setting aside abatement as regards one of
the plaintiffs can be construed as a prayer for setting aside the abatement of
the suit in its entirety. Abatement of suit for failure to move an application for
bringing the legal representatives on record within the prescribed period of
limitation is automatic and a specific order dismissing the suit as abated is not
called for. Once the suit has abated as a matter of law, though there may not
have been passed on record a specific order dismissing the suit as abated, yet
the legal representatives proposing to be brought on record or any other
applicant proposing to bring the legal representatives of the deceased party on
record would seek the setting aside of an abatement. A prayer for bringing the
legal representatives on record, if allowed, would have the effect of setting
aside the abatement as the relief of setting aside abatement though not asked
for in so many words is in effect being actually asked for and is necessarily
implied. Too technical or pedantic an approach in such cases is not called for.
9. The courts have to adopt a justice-oriented approach dictated by the
uppermost consideration that ordinarily a litigant ought not to be denied an
opportunity of having a lis determined on merits unless he has, by gross
negligence, deliberate inaction or something akin to misconduct, disentitled
himself from seeking the indulgence of the court. The opinion of the trial Judge
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allowing a prayer for setting aside abatement and his finding on the question of
availability of 'sufficient cause' within the meaning of sub-rule (2) of Rule 9 of
Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given
weight, and once arrived at would not normally be interfered with by superior
jurisdiction.
10. In the present case, ... such an approach adopted by the Division Bench
verges on too fine a technicality and results in injustice being done. There was
no order in writing passed by the court dismissing the entire suit as having
abated. The suit has been treated by the Division Bench to have abated in its
entirety by operation of law. For a period of ninety days from the date of death
of any party the suit remains in a state of suspended animation. And then it
abates. The converse would also logically follow. Once the prayer made by the
legal representatives of the deceased plaintiff for setting aside the abatement as
regards the deceased plaintiff was allowed, and the legal representatives of the
deceased plaintiff came on record, the constitution of the suit was rendered
good; it revived and the abatement of the suit would be deemed to have been
set aside in its entirety even though there was no specific prayer made and no
specific order of the court passed in that behalf.
(emphasis supplied)
24. Hence, the impugned orders as well as the order dismissing the second appeal as
abated, under challenge in the first of the two appeals, is bad in law; the same
deserve to be set aside."
4. Having noticed the law laid by the Apex Court, this Court is of the
view that notwithstanding that although the writ petition may have abated
pursuant to the expiry of the writ petitioner and for not taking steps within
the period of limitation for bringing the legal heirs of the writ petitioner,
the fact that since an application has now been filed seeking substitution
of the legal heirs of late Phul Kumar Das, no separate application for
setting aside the order of abatement would be required. This Court
considers it appropriate to allow the application taking into consideration
the submissions made for substitution of the legal heir of the late
petitioner.
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5. It is submitted by the learned counsel for the applicant that the
applicant and the late writ petitioner did not have any issue pursuant to
the marriage. Therefore, after expiry of the writ petitioner, the present
applicant is the only surviving legal representative of the writ petitioner.
6. Having heard the learned counsel for the parties and upon careful
perusal of the pleadings on record and also taking into consideration that
no specific objection has been raised by the respondent, the Interlocutory
application stands allowed. The applicant namely Smt. Ranu Das is allowed
to be substituted in place of late Phul Kumar Das who was the petitioner in
W.P.(C) No. 6462/2015.
7. In view of the facts narrated above as well as the law laid down by
the Court, the interlocutory application being I.A. (Civil) No. 3379/2024
also stands allowed. The delay of 1281 days that had occurred in filing the
application for substitution stands condoned.
8. The applicant will file amended cause title within a period of two
weeks from today before the Registry.
9. A copy of this order be retained in the W.P.(C) No. 6462/2015.
JUDGE
Comparing Assistant
