Most. Khagia v. … Opposite Parties
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 98 of 2023 ------ Most. Khagia … Petitioner Mathura Mahto & Ors. Versus … Opposite Parties ------
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ For the Petitioner For the O.P. Nos.1 to 3 : Mr. Rabindra Prasad, Advocate : Mr. Ayush Aditya, Advocate Order No.05 Dated- 18.08.2023 ------ I.A. No.6947 of 2023 and I.A. No.7292 of 2023 Learned counsel for the petitioner submits that Interlocutory Application No.6947 of 2023 has been filed with a prayer to substitute the legal representatives of the deceased respondent no.4 –opposite party no.4–Kunjia Devi who died on 28.02.2022 leaving behind her only four legal representatives whose names, parentage and addresses have been mentioned in para-4 of the instant interlocutory application. It is next submitted that Interlocutory Application No.7292 of 2023 has been filed with a prayer to condone the delay in filing the petition for substitution and to set aside the abatement, if any, because of the non-substitution of the respondent no.4 –opposite party no.4 within time. It is next submitted that the appellant- petitioner is rustic and old village widow and she was not aware about the requirement for filing the petition for substitution within the stipulated time and she also could not know about the death of the respondent no.4 –opposite party no.4 immediately after her death, hence the same resulted in delay in filing the petition for substitution. It is further submitted that unless the delay is condoned and the abatement if any, is set aside and the prayer to substitute the only four legal representative of the deceased respondent no.4 – opposite party no.4 is allowed, the appellant-petitioner will be highly prejudiced. Considering the aforesaid facts and circumstances of the case, the delay in filing the petition for substitution is condoned and the abatement, if any, is set aside and the prayer to substitute the only four legal representative of the deceased respondent no.4 –opposite party no.4 whose names, parentage and addresses have been mention in paragraph no. 4 of the interlocutory application no.6947 of 2023 as opposite party nos. 4(a) to 4(d) is allowed. Registry is directed to incorporate the names, parentage and address of the said opposite party nos. 4(a) to 4(d) in the cause title of the civil miscellaneous petition with red ink and mention the word ‘dead’ against the name of the deceased respondent no.4 – opposite party no.4. Both the interlocutory applications are disposed of accordingly. (Anil Kumar Choudhary, J.) C.M.P. No. 98 of 2023 Heard the parties. Mr. Shailendra Kumar Singh, Advocate and associates files Vakalatnama on behalf of the opposite party nos. 4(a) to 4(d). (Anil Kumar Choudhary, J.) I.A. No.1931 of 2023 This interlocutory application has been filed with a prayer to condone the delay of 102 days in filing this civil miscellaneous petition. It is submitted by the learned counsel for the petitioner that the second appeal no. 61 of 1995 was listed for hearing on 28.06.2022 and the same was allowed subject to deposit of Rs.1,000/- with JHALSA but the same could not be complied by the appellant. The counsel was waiting for the listing of the case, hence no application for restoration which resulted in delay of 102 days and when the counsel came to know about the facts, he immediately deposited Rs.1,000/- with JHALSA. The learned counsel for the opposite party nos. 1 to 3 on the other hand vehemently opposes the prayer for condonation of delay and submits that the interlocutory application is full of falsehood made on oath by the appellant-petitioner herself. It is next submitted by the learned counsel for the opposite party nos. 1 to 3 that consequent upon the failure of the appellant-petitioner to deposit the amount of Rs.1,000/- with JHALSA within the stipulated time, the advocate on record Mr. Nitish Ranjan Sinha has been intimated by the Registry of the failure to comply the peremptory order and after such notice, the order of dismissal has been drawn up by the Registry in terms of the peremptory order passed by this Court. Hence, the sole ground that the counsel of the appellant was not intimated about the dismissal of the second appeal because of the non-compliance of the peremptory order is a false one, apparent on the face of the record, hence it is submitted that the delay ought not be condoned. It is next submitted by the learned counsel for the opposite party nos. 1 to 3 that this second appeal is an year old appeal and the opposite party nos. 1 to 3 are unnecessarily harassed by lingering the litigation by the petitioner. Having heard the submissions made at the bar and after going through the materials in the record, true it is, that the learned counsel for the appellant of S.A. No. 61 of 1995, Mr. Nitish Ranjan Sinha has been intimated by the Registry before drawing up the formal order of dismissal of the said second appeal in terms of the peremptory order passed by this Court but the fact remains that the appellant is an illiterate lady and might have been misled by one or other in swearing a false affidavit in support of a false contention. It is always better to dispose of a lis on contest rather than to be on ex- parte but keeping in view the conduct of the appellant, this Court is inclined to allow the prayer to readmit second appeal no. 61 of 1995 to its original file subject to payment of cost of Rs.10,000/- by the petitioner to the opposite party nos. 1 to 3 through the learned counsel for the opposite party nos. 1 to 3 appearing in the record within eight weeks, failing which this civil miscellaneous petition shall stand dismissed without further reference to the Bench. It is made clear that in case, if the petitioner files the proof of payment of cost of Rs.10,000/- by the petitioner to the opposite party nos. 1 to 3 through the learned counsel for the opposite party nos. 1 to 3 appearing in the record within eight weeks and the proof of payment of the same is filed; the second appeal no. 61 of 1995 shall stand re-admitted to file and be listed before the concerned Bench within a week of being re-admitted to its original file. It is made clear that in case the petitioner fails to file the proof of payment of cost of Rs.10,000/- by the petitioner to the opposite party nos. 1 to 3 through the learned counsel for the opposite party nos. 1 to 3 appearing in the record within eight weeks; this civil miscellaneous petition shall stand dismissed without further reference to the bench.
Decision
Accordingly, this interlocutory application stands disposed of. Sonu-Gunjan/ (Anil Kumar Choudhary, J.)