On the Death of Pankaj Kumar Das @ Pankaj Das His Legal Heirs Putul Das and Ors v. Smtimadhabi Mazumder,

ORDER

30.08.2024

Heard Mr. B.K. Bhagawati, learned counsel for the applicants and Mr. P.C. Dey, learned counsel for the opposite party.

¶2This application, under Section 5 of the Limitation Act, 1963 is Page No.# 3/9 preferred by the applicants for condonation of delay of 662 days in filing the setting aside abatement petition.

¶3It appears that the applicants have preferred a regular second appeal before this court, challenging the judgment dated 23.12.2015 and decree dated 06.01.2016, passed by the learned Additional District Judge No. 3, Nagaon in Title Appeal No. 06/2015, affirming the judgment and decree dated

23.02.2015, passed by the learned Civil Judge, Nagaon in Title Suit No. 57/2010.

¶4Mr. Bhagawati, learned counsel for the applicants submits that during the pendency of the aforesaid second appeal, the sole appellant of the connected appeal suffered demise on 13.01.2020, leaving behind the present applicants as legal heirs and successors. Mr. Bhagawati further submits that the engaged counsel of the appellant also suffered demise during that pendency and as such, the accompanying appeal could not be filed within the period of limitation for reasons beyond the control of the applicants and therefore, the delay of 662 days occurred in filing the accompanying appeal and therefore, it is contended to allow the application.

¶5On the other hand, Mr. Dey, learned counsel for the opposite party submits that no sufficient cause has been given for the delay of 662 days in filing the accompanying appeal and therefore, it is contended that the I.A. ought not to be condoned.

¶6I have given my prudent consideration to the arguments made by the learned counsel for the applicants and also perused the grounds of delay averred in the instant interlocutory application.

¶7Paragraph nos. 4 - 14 of the instant interlocutory application is Page No.# 4/9 reproduced hereunder for ready reference:- "4. That the applicants beg to state that the original appellant Late Pankaj Kumar Das during his lifetime was all along dealing with the affairs of the present second appeal and used to maintain communication with the engaged counsel at Guwahati as and when necessary, however, during that period the present applicants were not at all aware of the status of the present case and the details regarding the engaged counsel at Guwahati.

¶5That the applicants beg to state that Late Pankaj Kumar Das expired on 13/01/2020 and a few months later the COVID-19 lockdown was imposed. During this pandemic period, no effective steps could be taken before the Hon'ble Court for filing necessary applications for substitution, etc.

¶6That the applicants beg to state that Late Pankaj Kumar Das was survived by the present applicants, but due to his sudden death, the family suffered financial difficulty and hardship. That the applicant no. 1 i.e. the wife of the appellant, is a senior citizen who is a housewife without proper education and since long she has been suffering for various ailments in the form of heart disease, Page No.# 5/9 respiratory problems, diabetes, thyroid disorder, allergies, arthritis, etc. That the applicant no. 2 is the eldest son and an employee of the Railway Protection Force. That the applicant no. 3 is the daughter of the original appellant and she stays with her husband at their matrimonial home in Shillong, Meghalaya. The applicant no. 4 is the second son who is presently unemployed and does not possess financial resources to handle the case. That the applicant no. 5 is the youngest son who is pursuing his studies.

¶7That the applicants beg to state that due to the dire financial situation and household problems faced by the family of the applicants, the entire burden of the family and financial responsibility shifted upon the sole bread earner of the family i.e. the applicant no. 2 (Sri Bijoy Das) who has been serving in the Railway Protection Force (RPF) in the rank of Constable, and since 2016 he has been stationed at Tinsukia district.

¶8That the applicants beg to state that from 04/04/2022 to 18/11/2022 the applicant no. 2 was in Delhi undergoing training as part of his service requirements, and after completion of the said training, the applicant no. 2 went back to his place of posting at Tinsukia. Page No.# 6/9

¶9That the applicants beg to state that in the month of February, 2023, when the applicant no. 2 went to his native place at Lanka, Hojai, and after going through the case file maintained by his deceased father, he was able to obtain the details regarding the present case and information about the then engaged advocate at Guwahati i.e. Mr. G.C. Phukan, and accordingly he tried to contact the phone number of the said advocate, in order to inform him about the death of Late Pankaj Kumar Das, but he could not reach him over phone.

¶10That the applicants beg to state that thereafter the applicant no. 2 decided to come to Guwahati in the first week of March, 2023, to meet the then engaged counsel Mr. G.C. Phukan. However, after coming to Guwahati and enquiring about the said advocate, he could come to learn that said Mr. G.C. Phukan, had passed away in the year 2019. Subsequently, after further enquiry, the applicant no. 2 came to know about the junior advocate who was assisting said Mr. G.C. Phukan, in the present case. Accordingly, the applicant no. 2 met with the said advocate, and informed him about the death of the appellant i.e. Late Pankaj Kumar Das by providing all necessary documents and instructed him to file appropriate applications Page No.# 7/9 before the Hon'ble Court. That again on 31/03/2023, the applicant no. 2 sent some further documents in the WhatsApp number of said advocate.

¶11That the applicants beg to state that thereafter in the month of April, 2024, the applicant no. 2 came to Guwahati in order to meet the advocate and to enquire about the status of the case. However, after meeting the said advocate, the applicant no. 2 was shocked to learn that no applications for substitution, etc. had been filed even after providing all documents and giving specific instructions to that effect. Thereafter, on 03/05/2024, after obtaining a certified copy of the order dated 21/02/2024, the applicant no. 2 could come to know that no information about the death of the deceased appellant Late Pankaj Kumar Das was conveyed by the said advocate to the Hon'ble Court when the matter was last listed on 21/02/2024.

¶12That the applicants beg to state that being dissatisfied the applicants thereafter in the first week of May, 2024, requested the said advocate to handover the brief of the case and accordingly on 08/05/2024, the applicants were able to obtain the brief of the case along with an N.O.C from the said advocate. Page No.# 8/9

¶13That the applicants beg to submit that the applicants thereafter met the present counsels at Guwahati and handed over the brief of the case, and took some time to arrange the money for filing the necessary applications and also provided the requisite documents as well as vakalatnama and instructed the said newly engaged counsels to do the needfull for substituting the names of the present applicants. That subsequently, the present engaged counsels took some time to prepare the necessary applications for substitution, setting aside abatement and the present delay condonation, and accordingly all these applications have been filed before this Hon'ble Court.

¶14That the applicants humbly beg to submit that due to facts and circumstances explained above and in view limitation guidelines and direction passed on 10/01/2022 in Misc. Application No. 21/2022 by the Apex Court In Re: Cognizance For Extension Of Limitation (2022 3 SCC 117), there is a delay of 661 days in filing the connected setting aside abatement petition, hence the present application has been filed to condone the said delay and thereafter this Hon'ble Court may be pleased to set aside the abatement and Page No.# 9/9 accordingly the names of the applicants may be duly substituted as appellants in place of the deceased appellant, Late Pankaj Kumar Das."

¶8In view of above, it is apparent that without any intention and beyond the control of the applicants the delay of 662 days had occurred in filing the accompanying appeal. It also appears that the explanations given for the said delay of 662 days is sufficient and bona fide.

¶9Accordingly, the delay of 662 days is condoned.

¶10In terms of above, this application stands disposed of.

¶11The Registry shall list the connected appeal on 16.09.2024.

JUDGE Comparing Assistant

PageoNo.#o1/9 GAHC010170692024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oI.A.(Civil)/1860/2024 ONoTHEoDEATHoOFoPANKAJoKUMARoDASo@oPANKAJoDASoHISoLEGALoHEIRSo PUTULoDASoANDoORS W/OoLATEoPANKAJoKUMARoDAS oR/OoLANKAoTOWN oWARDoNO.o6 oP.O.oLANKA oP.S.oLANKA oDIST.oHOJAI oASSAM oPINo782446 2:oSRIoBIJOYoDAS S/OoLATEoPANKAJoKUMARoDAS oR/OoLANKAoTOWN oWARDoNO.o6 oP.O.oLANKA oP.S.oLANKA oDIST.oHOJAI oASSAM oPINo782446 o3:oSMTIoMISTUoDAS D/OoLATEoPANKAJoKUMARoDAS oW/OoSRIoBIKASHoDAS oR/OoNEARoPROMUDINIoGUESToHOUSE oC/OoLT.oGOBINDAoMPAUL oLOWERoJAILoROAD oSHILLONH oEMGHALAYA oPINo793001. o4:oSRIoBINOYoDAS S/OoLATEoPANKAJoKUMARoDAS oR/OoLANKAoCOLLEGEoROAD Page No.# 2/9 WARD NO. 6 P.O. LANKA P.S. LANKA DIST. HOJAI ASSAM PIN 782446 5: SRI DEBASISH DAS S/O LATE PANKAJ KUMAR DAS R/O LANKA COLLEGE ROAD WARD NO. 6 P.O. LANKA P.S. LANKA DIST. HOJAI ASSAM PIN 782446 VERSUS SMTIMADHABI MAZUMDER W/O SRI HARI MAZUMDER R/O LANKA TOWN WARD NO. 6 P.O. LANKA P.S. LANKA DIST. HOJAI ASSAM PIN 782446 ------------ Advocate for : MR. P S DEKA Advocate for : MR P C DEY appearing for SMTIMADHABI MAZUMDER BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI