High Court · 2012

Heard Mr. R. K. Jain, learned counsel for the petitioner. Also heard Mr. R. Sarm a, learned counsel appearing for the legal representatives of the respondent Nos . 1 and 2/ opposite parties. This is an application for condonation of delay in filing the application for se tting aside abatement. There is delay of 3296 days and 2920 days in filing the a pplication for substitution of the respondent Nos. 1 and 2. However, no date of death of respondent Nos. 1 and 2, respectively is mentioned. The appellant had filed the suit for mandatory / prohibatory / permanent injunct ion in respect of the suit premises described in Schedule B to the plaint, which is situated in a plot of land measuring 13 lechas. Very briefly, the pleaded ca se in the suit is that the defendants refused to sell the Schedule B to the plai ntiff in which he was carrying on business but they were planning to sell the sa me to some unscrupulous persons, which might result in his eviction. The suit wa s filed with the following prayers: (a) That the suit be decreed against the Defendant for permanent/perpetual a nd prohibitory injunction restraining and prohibiting the defendants their man, agents, servants, employees and/or associates from interfering with the possessi on and use of the suit room and premises by the Plaintiff and/or from entering i nto the suit room and premises and from evicting and/or ousting the plaintiff fr om the suit room and premises and/or any part or portion thereof and/or from thr eat ening the plaintiff of forcible eviction from the suit room and premises and /or from transferring the suit room and premises in possession of the plaintiff to some other person by register deed of sale and/or by any other form of convey ance and mandatory injunction direction that the defendants have no right, title and interest in the suit room and premises due to relinquishing and extinguishi ng by efflux of time and/or from causing any obstruction, interference and/or hi ndrance in the peaceful possession, use and enjoyment by the plaintiff of the su it room and premises as described in schedule-B in possession of the plaintiff. (b) (c) uity be decreed in favour of the plaintiff. (cid:29) That the cost of the suit be decreed against the defendant. That any other relief/s to which the plaintiff is entitled in law and eq In the application for condonation of delay, it has been stated that the appella nt had been ailing from various old age ailments and is also a diabetic patient, besides being hypertensive. A vague averment is made that when the petitioner/a ppellant had come to Guwahati on 09.11.2007, he had informed his counsel about r eceiving the news of death of respondent Nos. 1 and 2 at a much later stage. The application finally came to be filed on 21.01.2008. The affidavit shows that the petitioner was 70 years old on 21.1.2008. The petition is accompanied by a medical certificate, which is not dated and the certificate does not specify for which period and in what condition the patient was treated. From the age record ed in the certificate, which is 70 years, it would appear that the said certific ate was obtained at the time when the application was sought to be filed. In an additional affidavit filed, the petitioner has made a statement that the r espondent No.2 died on 21.06.2000 and he came to know about such death in July 2

000. It is also stated that the respondent No.1 died in the month of March 1998 and he came to know about such death in the year 2003. By filing an affidavit the respondent Nos. 1 and 2 stated that the plea of the a ppellant that he had no knowledge about the death of the said respondent is out and out a false statement and that all of them were doing business in the suit p remises. Mr. R. K. Jain, learned counsel for the petitioner submits that the counsel for the respondent Nos. 1 and 2 failed to inform the death of respondent Nos. 1 and 2 as required under Order 22 Rule 10A CPC. Learned counsel further submits that because of health problems and old age, the appellant could not take the requis ite steps for substitution of the respondent Nos. 1 and 2. Mr. R. K. Jain, learn ed counsel for the petitioner further submits that the Court should take a lenie nt view and condone the delay for the ends of justice. Mr. R. Sarma, learned counsel for the opposite parties submits that no case for condonation of delay is made out. I have heard the learned counsel for the parties and considered the materials on record. No affidavit-in-reply has been filed controverting the statement made in the af fidavit-in-opposition that the appellant and the opposite parties were carrying on their business in the suit premises. From the statements made in the addition al affidavit by the appellant it is clear that he was aware of death in the year 2003 and 2000, respectively. In the year 2000, the petitioner was aged about 62 years. The plea of old age and sickness also is not substantiated by the materi als on record. With regard to the medical certificate, less said the better. Thi s Court is also unable to accept the argument of Mr. R. K. Jain, learned counsel for the petitioner, that due to old age the petitioner could not take the requi site steps as there is no material on record to support that at the age of 62 ye ars the petitioner had become an infirm person. No doubt, the approach of the Co urt should be liberal in the matter of condoning delay. But it is not to say tha t the Court should condone the delay even when no materials exist on record to t ake such a lenient view. The plea regarding the alleged infraction of the mandat e of order 22 Rule 10A CPC is also not found relevant in the facts of the case w hen it is not the case set up that the appellant was not at all aware of the dea th of respondent No. 1 and 2 till the time of filing of the application. For the reasons aforesaid, I do not find any justifiable ground to condone the delay an d accordingly, this application is dismissed.