On the Death of Anupuma Chakraborty His Legal Heirs Pinak Kanti Chakraborty and Anr v. Sri Binoy Krishna Chakraborty,

ORDER

24.06.2024

Heard Mr. R Sarma, the learned counsel appearing on behalf of the applicants. Also heard Mr. SD Purkayastha, the learned counsel appearing on behalf of the respondent.

¶2All these four applications are taken up together for consideration taking into account that these applications have been filed on account of death of the sole appellant on 31.03.2023.

¶3IA(C)No.1651/2024 and IA(C)No.1654/2024 are applications seeking condonation of delay in filing an application for setting aside abatement and for substitution of the legal representatives of the sole appellant, who has expired.

¶4The grounds which have been mentioned in the application is that the Page No.# 5/7 applicants were no aware of the legal procedures that on the death of the appellant, there is a requirement for substitution of his legal representatives.

¶5This Court has duly taken note of the reasons which have been mentioned and from the above, it is the opinion of this Court that the applicants herein were kept at dark by the learned counsel in not apprising that it is the requirement of law upon the death of the appellant or any party to the proceedings having a cause of action and the right to sue subsisting to substitute their legal representatives for the continuation of the appeal. Taking into account that it is a fault on the part of the counsel, this Court is of the opinion that the delay needs to be condoned, inasmuch as, on account of the fault of the counsel, the party cannot be prejudiced. Accordingly, IA(C)No.1651/2024 and IA(C)No.1654/2024 stand allowed.

¶6This Court, however, cannot also be unmindful of the fact that it is a case of sheer negligence and carelessness and, as such, imposes a costs of Rs.5000/- upon the applicants.

¶7IA(C)No.1652/2024 is an application for setting aside abatement and taking into account the reasons for which the delay has been condoned, this Court is also of the opinion that it is a fit case for setting aside the abatement in so far as the appellant is concerned. Else the applicants would be completely non-suited. Accordingly, the interlocutory application being IA(C)No.1652/2024 is allowed.

¶8IA(C)No.1653/2024 is an application for substitution of the legal Page No.# 6/7 representatives of the sole appellant, whose names are duly mentioned at paragraph 2 of the instant application. Taking into account that the right to sue survives on the legal representative of the appellant. This Court substitutes the original appellant by the applicant Nos.1 and 2 of the instant application. The applicant Nos.1 and 2 would be arrayed as appellant No.1(i) and 1(ii) in the accompanying second appeal being RSA No.246/2015. Accordingly, the interlocutory application stands allowed.

¶9This Court, however, makes it clear that the instant order is subject to the deposit of Rs.5000/- as costs.

¶10The applicants herein are directed to deposit the amount of Rs.5000/- to a charitable institution 'Snehalaya Home for Boys' located at AK Dev Road, Dhirenpara Guwahati-781025, Assam and the receipt thereof be submitted before the Registry of this Court by 19.07.2024. The applicants, along with the receipt of deposit of costs as directed shall file a fresh Memo of parties before the Registry of this Court and the Registry shall on the basis of the instant order as well as the amended Memo of parties make necessary corrections in the cause-title of the accompanying second appeal and also update the same in the CIS.

¶11Interlocutory applications accordingly stand disposed of

JUDGE Page No.# 7/7 Comparing Assistant

Page No.# 1/7 GAHC010050932024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/1654/2024 ON THE DEATH OF ANUPUMA CHAKRABORTY HIS LEGAL HEIRS PINAK KANTI CHAKRABORTY AND ANR W/O LATE PIJUSH KANTI CHAKRABORTY, DURGA SHANKAR LANE, AMBIKAPATTY, SILCHAR TOWN, DIST. CACHAR, ASSAM. 2: SRI ABHIJIT CHAKRABORTY S/O LATE PIJUSH KANTI CHAKRABORTY DURGA SHANKAR LANE AMBIKAPATTY SILCHAR TOWN ASSAM VERSUS SRI BINOY KRISHNA CHAKRABORTY, S/O LATE BIRENDRA KUMAR CHAKRABORTY, DURGA SHANKAR LANE, AMBIKAPATTY, SILCHAR TOWN, DIST. CACHAR, ASSAM. Advocate for the Petitioner : MR.R SARMA Advocate for the Respondent : MR. S D PURKAYASTHA Linked Case : I.A.(Civil)/1651/2024 ON THE DETAH OF ANUPAMA CHAKRABORTY HER LEGAL HEIRS PINAK KANTI CHAKROBORTY AND ANR Page No.# 2/7 S/O LATE PIJUSH KANTI CHAKRABORTY DURGA SHANKAR LANE AMBIKAPATTY SILCHAR TOWN ASSAM. 2: SRI ABHIJIT CHAKRABORTY S/O LATE PIJUSH KANTI CHAKRABORTY DURGA SHANKAR LANE AMBIKAPATTY SILCHAR TOWN ASSAM. VERSUS SRI BINOY KRISHNA CHAKRABORTY E S/O LATE BIRENDRA KUMAR CHAKRABORTY DURGA SHANKAR LANE AMBIKAPATTY SILCHAR TOWN ASSAM. ------------ Advocate for : MR.R SARMA Advocate for : MR. S D PURKAYASTHA appearing for SRI BINOY KRISHNA CHAKRABORTY E Linked Case : I.A.(Civil)/1653/2024 ON THE DETAH OF ANUPAMA CHAKRABORTY HER LEGAL HEIRS PINAK KANTI CHAKROBORTY AND ANR S/O LATE PIJUSH KANTI CHAKRABORTY DURGA SHANKAR LANE AMBIKAPATTY SILCHAR TOWN ASSAM. 2: SRI ABHIJIT CHAKRABORTY S/O LATE PIJUSH KANTI CHAKRABORTY DURGA SHANKAR LANE Page No.# 3/7 AMBIKAPATTY SILCHAR TOWN ASSAM. VERSUS SRI BINOY KRISHNA CHAKRABORTY E S/O LATE BIRENDRA KUMAR CHAKRABORTY DURGA SHANKAR LANE AMBIKAPATTY SILCHAR TOWN ASSAM. ------------ Advocate for : MR.R SARMA Advocate for : MR. S D PURKAYASTHA appearing for SRI BINOY KRISHNA CHAKRABORTY E Linked Case : I.A.(Civil)/1652/2024 ON THE DETAH OF ANUPAMA CHAKRABORTY HER LEGAL HEIRS PINAK KANTI CHAKROBORTY AND ANR S/O LATE PIJUSH KANTI CHAKRABORTY DURGA SHANKAR LANE AMBIKAPATTY SILCHAR TOWN ASSAM. 2: SRI ABHIJIT CHAKRABORTY S/O LATE PIJUSH KANTI CHAKRABORTY DURGA SHANKAR LANE AMBIKAPATTY SILCHAR TOWN ASSAM. VERSUS SRI BINOY KRISHNA CHAKRABORTY E S/O LATE BIRENDRA KUMAR CHAKRABORTY DURGA SHANKAR LANE AMBIKAPATTY SILCHAR TOWN Page No.# 4/7 ASSAM. ------------ Advocate for the applicant(s): Mr. R Sarma Advocate for the respondent(s): Mr. SD Purkayastha B E F O R E HON'BLE MR. JUSTICE DEVASHIS BARUAH