On the Death of Fajar Ali, v. On the Death of Sorhab Ali,

ORDER Date : 30.08.2024 Heard Mr. A. K. Azad, learned counsel for the applicant. Also heard Mr. H. Das, learned counsel for the respondents. This is an application under Order 22 Rule 9 of CPC, 1908 for setting aside the abetment of the RSA No. 167/2010. Paragraph 2 and 3 of the aforesaid application is reproduced hereunder for ready reference:- "2. That, during the pendency of the said Regular Second Appeal No. 167/2023, the sole Appellant namely Fajar Ali died on 01-06-2018. The applicants are the permanent resident of village Rampur under kalgachia revenue Circle in the district of Barpeta. The applicants are residing in a remote area as mentioned above. The father of the applicants was an illiterate person and before his death he was suffering from serious illness caused by the asthmas along with other old age disease and in resulting of that he was in a death bed condition almost two years. From that period of time, there was communicational gap between the Appellant and his earlier engaged counsel. Later on after death of the sole Appellant, the Applicants could not able to cooperate with their engaged counsel in time. Thereafter, Covid-19 Pandemic situation breakout from the year of 2020 and paralyzed the function of the court almost 2 years. In the year of 2022, the legal heirs of the sole Appellant started to communicate the engaged counsel and they decided to engage the present sets of counsels in the month of February 2023. Thereafter they came to known about the current Page No.# 6/6 status of their case.

¶3That the applicants beg to state that, due to aforesaid facts and circumstances the substitution application has not been filed within the period of limitation as prescribe under the Code of Civil Procedure, 1908 within 90 days (Ninety days) from the date of death of applicant namely Fajar All in R.S.A. No. 167/2010. As a result of which due to death of the sole appellant the appeal automatically got abated. The rights to sue survive in this second appeal, so it is required to file the present petition along with condonation petition as well as substitution petition for adjudication of the case."

Apparent that appropriate legal rights of the applicant is to be decided in RSA No. 167/2010. Since, the delay in filing the substitution application, has been condoned by this Court by order dated 30.08.2024 in I.A.(Civil) No. 883/2023, the instant application accordingly stands allowed. Disposed of. JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010055192023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oI.A.(Civil)/885/2023o oONoTHEoDEATHoOFoFAJARoALI HISoLEGALoHEIRSoSORHABoALIoANDoORS. 2:oSARAoKHATUN W/OoLATEoFAJARoALI o3:oSOBITANoNESSA o4:oHAFIZURoUDDIN o5:oASIYAToJAMAL PageoNo.#o2/6 o6:oSHAHIDULoISLAM o7:oHASHEMoALI o8:oMUFAJJELoHOSSAEN o9:oHAIDARoALI PageoNo.#o3/6 o10:oSAFIKULoISLAM o11:oISMAILoHUSSAIN o12:oROFIKULoISLAM o13:oTARAoBHANU D/OoLATEoFAJARoALI o14:oFORIDAoKHATUN D/OoLATEoFAJARoALI Page No.# 4/6 ASSAM PIN 781319 15: NUR NEHAR KHATUN D/O LATE FAJAR ALI PERMANENT RESIDENT OF VILLAGE RAMPUR P.O. NIZ RAMPUR P.S. KALGACHIA DIST. BARPETA ASSAM PIN 781319 16: MOMOTAZ BEGUM D/O LATE FAJAR ALI PERMANENT RESIDENT OF VILLAGE RAMPUR P.O. NIZ RAMPUR P.S. KALGACHIA DIST. BARPETA ASSAM PIN 781319 17: REHENA KHATUN D/O LATE FAJAR ALI PERMANENT RESIDENT OF VILLAGE RAMPUR P.O. NIZ RAMPUR P.S. KALGACHIA DIST. BARPETA ASSAM PIN 781319 VERSUS ON THE DEATH OF SORHAB ALI HIS LEGAL HEIRS BOSIRAN NESSA and ANR 2:RUSTAM ALI S/O MD. SORHAB ALI BOTH ARE R/O VILL. SUNDARPUR P.S. MATIA DIST. GOALPARA ASSAM. ------------ Advocate for : G UDDIN Advocate for : MR. S Ali appearing for ON THE DEATH OF SORHAB ALI Page No.# 5/6 BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI