On the Death of Kamal Bora v. The State of Assam and 4 Ors

ORDER Date : 14.06.2024 Heard Mr. D. K. Nath, learned counsel for the applicant. Also heard Ms. N. Bordoloi, learned Standing Counsel for the respondent No. 1, Mr. K. Gogoi, learned Senior Government Advocate for respondent No. 2 and Mr. D. Mahanta, learned counsel for appearing for respondent No. 3, 4 and 5. This is an application under order XXII Rule 9 for setting aside abetment. Heard and perused the averments made in respect of the prayer. Paragraph 2, 3 and 4 of the application is reproduced hereunder for ready reference:-

¶2That the applicant states that during the pendency of the writ petition, the petitioner expired on 26/10/23 and as such the applicant filed. IA (C) for substitution. But the IA (C) for substitution could not be filed within 90 days from the date of death of the Petitioner No. 1, the suit is abated. As such the instant IA has been filed for setting aside abetment.

¶3That the applicant states that on the death of the writ petitioner right to sue survives upon the applicant and unless and until abatement has been set aside, the applicant could not be substituted as party/petitioner in the writ petition.

¶4That the applicant has an extremely good case and the delay has been Page No.# 4/4 already condoned. Therefore, abatement of the suit may be set aside.

A perusal above averments indicate that the petitioner expired on 20.10.2023 and on the death of the petitioner though the right to choose survive upon the applicant. However since the IA for substitution could not filed within 90 days from the death of the petitioner No. 1, the writ petition i.e. WP(C)/7128/2022 stood abetted. Accordingly the instant application has been filed for setting aside the abetment. It appears that petitioner has made out a sufficient cause for setting aside the abetment and accordingly abetment is set aside. The application stands allowed. Disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010112292024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oI.A.(Civil)/1063/2024o oONoTHEoDEATHoOFoKAMALoBORA HISoLEGALoHEIRSoSUSILAoBORAHANDoANDoANR 1.1:oSMT.oSUSILAoBORAH WIFEoOFoLATEoKAMALoBORA o R/O-oVILLAGE-oKAMPURoREVENUEoTOWN oWARDoNO.o4 o MOUZA-oKAMPUR o P.S.-oKAMPUR o DISTRICT-oNAGAON oASSAM. o1.2:oMRS.oDRISTRITAoBORAH DAUGHTERoOFoLATEoKAMALoBORA o R/O-oVILLAGE-oKAMPURoREVENUEoTOWN oWARDoNO.o4 o MOUZA-oKAMPUR o P.S.-oKAMPUR o DISTRICT-oNAGAON oASSAM. oVERSUS THEoSTATEoOFoASSAMoANDo4oORS REPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM oLANDoANDoREVENUEoDEPARTMENT Page No.# 2/4 DISPUR GUWAHATI-6. 2:THE DEPUTY COMMISSIONER NAGAON DISTRICT ASSAM. 3:SOURAV BORAH SON OF LATE KIRAN CH. BORA R/O- VILLAGE- KAMPUR REVENUE TOWN WARD NO. 3 MOUZA- KAMPUR P.S.- KAMPUR DISTRICT- NAGAON ASSAM. 4:SUMITRA BORAH SON OF LATE KIRAN CH. BORA R/O- VILLAGE- KAMPUR REVENUE TOWN WARD NO. 3 MOUZA- KAMPUR P.S.- KAMPUR DISTRICT- NAGAON ASSAM. 5:SAMARENDRA BORAH SON OF LATE KIRAN CH. BORA R/O- VILLAGE- KAMPUR REVENUE TOWN WARD NO. 3 MOUZA- KAMPUR P.S.- KAMPUR DISTRICT- NAGAON ASSAM. ------------ Advocate for : MR. U J SAIKIA Advocate for : SC REVENUE appearing for THE STATE OF ASSAM AND 4 ORS Page No.# 3/4 BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI