Ras Bihari Pandey vs Md. Zubair
2023 Latest Caselaw 826 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    S.A. No. 181 of 2019
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    Ras Bihari Pandey               .... .... .... Appellant
                            Versus
    Md. Zubair                      .... .... .... Respondent
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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     For the Appellants       : Mr. A.K. Sahani, Advocate
     For the Respondents      : Mr. Arshad Hussain, Advocate
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     Order No.05 Dated- 21.02.2023
     I.A. No.2187 of 2021

Learned counsel for the legal representatives of the sole deceased appellant submits that this interlocutory application has been filed with a prayer to substitute the legal representatives of the sole deceased appellant-Rash Bihari Pandey who died on 15.12.2020 leaving behind his only five legal representatives whose names, and parentage has been mentioned at paragraph no.3 of this interlocutory application. It is next submitted by Mr. A.K. Sahani, Advocate that though it has not been specifically mentioned but he is having personal knowledge that all the only five legal representatives of the sole deceased appellant are residing in the same address as that of the sole deceased appellant. It is next submitted that the legal representatives of the sole deceased appellant were not aware of the present status of the appeal, hence they could not take steps immediately for substitution and the same resulted in delay in filing the petition for substitution. It is further submitted that unless the delay is condoned and the abatement if any, is set aside and the prayer to substitute the only five legal representative of the sole deceased appellant is allowed, the legal representatives of the sole deceased appellants will be highly prejudiced.

Considering the aforesaid facts and circumstances of the case, the delay in filing the petition for substitution is condoned and the abatement, if any, is set aside and the prayer to substitute the only five legal representative of the deceased appellant whose names, parentage has been mention in paragraph -1 of interlocutory application and their addresses are the same as that of the sole deceased appellant as appellant nos. 1 (a) to 1(e) is allowed.

Registry is directed to incorporate the names, parentage and address of the said only five legal representatives of the sole deceased appellant as appellant nos. 1 (a) to 1(e) in the cause title of the appeal memo with red ink and mention the word 'dead' against the name of the sole deceased appellant.

Mr. A.K. Sahani, Advocate undertakes to file Vakalatnama on behalf of the appellant nos. 1(a) to 1(e) within two weeks, failing which, this appeal shall stand dismissed without further reference to the Bench.

This interlocutory application is disposed of accordingly.

(Anil Kumar Choudhary, J.) I.A. No.11633 of 2019 This interlocutory application has been filed with a prayer to condone the delay of 1094 days in preferring this appeal.

It is submitted by the learned counsel for the appellant that the original appellant who has since been substituted by his legal representatives was an old person aged about 80 years at the time of filing of this appeal and he was suffering from various old age ailments and in view of such infirmity, the appellant was not in a position to undertake any journey without assistance. It is next submitted by the learned counsel for the appellant that the original appellant -Ras Bihari Pandey was under the continuous medical treatment since May, 2014 and after prolonged treatment, the original appellant -Ras Bihari Pandey could walk only after 18.05.2019 and after that some time was consumed to obtain the certified copy of the impugned judgment. Hence, the same resulted in delay in filing this second appeal. It is further submitted by the learned counsel for the appellants that the appellants have very good grounds to agitate in this appeal and the delay caused was neither intentional nor deliberate and unless the delay of 1094 days in filing this instant appeal is condoned, the legal representatives of the sole deceased appellant will be highly prejudiced.

The learned counsel for the respondents on the other hand vehemently opposes the prayer for condonation of the long delay in filing this appeal and denies that the original appellant was not in a position to undertake any journey and was under continuous medical treatment since May, 2014. It is next submitted that the appellant was very much negligent in prosecution of the case. Hence, this petition for condonation of delay in filing this appeal be dismissed being barred by limitation.

Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that the interlocutory application is accompanied by the copy of the prescription issued by the doctor under whose treatment the appellant was and also the OPD Slip issued by the Sadar Hospital, Ranchi and also the Pathological Report of the District Public Health Laboratory, Sadar Hospital, Ranchi.

Considering the aforesaid facts, this court is inclined to condone the delay in filing this appeal subject to payment of costs of Rs.5,000/- by the appellants to the respondent through the counsel appearing in record for the respondent within six weeks from the date of this order; failing which this conditional order shall not be given effect to and this interlocutory application shall stand dismissed without further reference to the Bench and consequently this appeal shall also stand dismissed being barred by limitation.

In case, the appellants file the proof of payment of costs of Rs.5,000/- by the appellants to the respondent through the counsel appearing in record for the respondent within six weeks, list this appeal after six weeks under the heading Order XLI Rule 11 C.P.C. as the last chance.

This interlocutory application stands disposed of accordingly.

Sonu-Gunjan/-                         (Anil Kumar Choudhary, J.)