[Cites 1, Cited by 0]
Jharkhand High Court
Kali Charan Mahto And Ors vs Ashok Mahto And Ors on 16 March, 2026
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Second Appeal No. 603 of 2015
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Kali Charan Mahto and Ors. .... .... Appellant(s)
-- Versus --
Ashok Mahto and Ors. ...... ..... .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants(s) :- Mr. S.K. Sharma, Advocate
Mr. Niraj Kishore, Advocate
For the Resp.1,2,5,6,7,8:- Mr. Amit Kumar Das, Advocate
For the Resp.3,9 and 16:- Mr. Sankalp Goswami, Advocate
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15/16.03.2026 This Second Appeal is arising out of Partition Suit.
2. I.A. No.3459 of 2026 has been filed for setting aside the
abatement and condoning the delay and substitution of appellant
no.2.
3. Learned counsel for the appellants submits that the
Second Appeal has already been admitted by order dated
05.04.2024. The appellant no.2 has died on 16.04.2021 leaving
behind the legal heirs/ successors as disclosed in paragraph no.5 of
the said I.A. He submits that the Death Certificate of appellant no.2
was provided in the office of leaned senior counsel late Mr.
V. Shivnath, but due to spread of Carona virus pandemic he was
under the bonafide impression that the interlocutory application for
substitution of appellant no.2 has already been filed and the person
who was making the pairvi of the present second appeal was bed
ridden since 2022 and the file was misplaced and thereafter this
matter was again listed and it transpired that the substitution has
not been made and in view of that, the IA has been filed and the
abatement may kindly be set aside and delay may kindly be
condoned and substitution may kindly be allowed.
4. Learned counsel for the respondent nos.1,2, 5, 6, 7 and
8 submits that belatedly the said substitution petition has been filed
when the execution case arising out of final decree is already filed.
He submits in view of that, the I.A may kindly be dismissed.
5. This is an admitted second appeal and the appellant no.2
has left for his heavenly abode on 16.04.2021 and there is no doubt
that the petition has been filed belatedly and abatement has already
taken place by way of efflux of time and there is delay of 1696 days
for setting aside the abatement. The legal heirs/ successors of
appellant no.2 are necessary parties. This aspect of the matter has
recently been considered by the Hon'ble Supreme Court in the case
of Om Prakash Gupta @ Lalloowa (Now Deceased) Through
LRs and Ors. V. Satish Chandra (Now Deceased) Through
LRs in Civil appeal No.13408 of 2024 reported in 2025 INSC
183.
6. Hon'ble Supreme Court in suo-motu case, condoned the
statutory delay and even if the statutory requirement is there arising
out of a statute in light of Covid-19 pandemic. It has been pointed
out that the death certificate was handed over in the office of
learned senior counsel late Mr. V. Shivnath and in view of that the
delay has occurred in filing the same.
7. In light of the above and considering the judgment of
the Hon'ble Supreme Court in the case of Om Prakash Gupta @
Lalloowa(supra) the delay of 1696 days is hereby condoned and
the abatement with regard to the appellant no.2 is hereby set aside.
The instant I.A. is allowed subject to payment of cost of Rs.2500/-
to be paid to the learned counsel namely Mr. Sankalp Goswami,
appearing for the respondent nos.1,2, 5, 6,7 and 8.
8. Learned counsel for the appellants will substitute the
name of the appellant no.2 in course of the day.
9. I.A. No.3460 of 2026 has been filed for substituting the
name of the legal heirs/ successors of respondent nos.3,9 and 16
and for deletion of respondent no.4 as the legal heirs/ successors of
respondent no.4 are already on record as respondent nos.5 and 6.
The name of the legal heirs/ successors of respondent nos.3, 9 and
16 are disclosed in paragraph nos. 5, 7 and 8. The prayer is also
made for setting aside the abatement and condoning the delay of
2195 days.
10. The learned counsel for the respondent nos.1,2,5,6,7
and 8 opposes the prayer and submits that there is huge delay and
in view of that, the prayer made in the I.A. may kindly be rejected.
11. In light of the judgment of Hon'ble Supreme Court in the
case of Om Prakash Gupta @ Lalloowa(supra), and considering
that the appeal has already been admitted, however, the delay in
filing of the substitution petition on behalf of the respondent nos.3,9
and 16 of 2195 days is hereby condoned. The abatement is set
aside against the respondent nos.3,9 and 16. The prayer made in
the instant I.A is allowed subject to payment of cost of Rs.2500/- to
be paid to the learned counsel for the respondent no.3,9 and 16.
12. Since the legal heirs/successors of respondent no.4 are
on record as stated by the learned counsel for the appellant, the
prayer for deleting the name of respondent no.4 is allowed at the
risk of the appellants.
13. Learned counsel for the appellants will delete the name
of the respondent no.4 in course of the day.
14. The I.As are disposed of.
15. The learned counsel for the appellants will make out
necessary correction with regard to the legal heirs/ successors with
regard to respondent no.3,9 and 16.
16. Issue notice upon the newly added legal heirs/
successors of respondent no.3, 9 and 16 by speed post with A/d as
well as under ordinary process for which requisites etc must be file
within a week.
17. It is open to the learned counsel for the appellants to
serve the notice upon the legal heirs/ successors of respondent
nos.3, 9 and 16 by way of personal service and an affidavit to that
effect will be filed and the learned counsel for the appellants will file
the affidavit within ten days of service of notice upon the
respondent nos.3,9 and 16.
18. Let this matter appear on 15.04.2026.
19. Till the next date, the interim order dated 26.02.2026
shall remain in force.
20. I.A. No.3099 of 2026 meant for staying the further
proceeding is disposed of.
( Sanjay Kumar Dwivedi, J.)
Dated : 16th March, 2026
SI/
