Amitava Mitra vs Khaniva Mukherjee Villa And Another

Heard both parties.

The application has been filed for substitution of the heirs and legal representatives of the deceased sole revisionist petitioner. The same is in time and

in proper form.

Learned counsel appearing for the opposite party nos. 1 and 2, in his usual fairness, does not oppose such prayer of the applicants in CAN 1 of 2021.

Accordingly, CAN 1 of 2021 is allowed, thereby directing the applicants, namely, Sibani Mitra and Manjer Neogi, to be substituted as petitioners in

place and stead of the deceased original revisionist petitioner, late Amitava Mitra, in C. O. No. 3430 of 2019.

The learned advocate-on-record for the petitioners-applicants is granted liberty to effect the necessary consequential amendments in the cause title of

C. O. No. 3430 of 2019 during the course of the day.

There will be no order as to costs.

Re: C. O. No. 3430 of 2019

The short grievance of the substituted petitioners is that the trial court refused to accept the written statement filed by the original petitioner, despite

having itself adjourned the suit for filing of written statement beyond the statutory limitation period.

Learned counsel appearing for the opposite parties contends that valuable rights have accrued in favour of the opposite parties, in particular, the

plaintiff-opposite party no. 1, since, despite having an opportunity for showing cause for the delay in belated filing of the written statement, no such

cause was shown by the petitioner, thereby making the petitioner himself responsible for the laches. As such, no condonation ought to be granted to

the petitioner, since there is no pleading at all on record to justify the delay in filing the written statement.

Upon hearing learned counsel for both the parties, it is evident that the plaintiff-opposite party no. 1 acquired valuable rights, inasmuch as the written

statement of the petitioner was not accepted and the suit was fixed for ex parte hearing by the trial court. No apparent error can be found,

jurisdictional or otherwise, in the impugned order.

However, learned counsel for the substituted petitioners in this Court verbally submits that there might have been a misconception on the part of the

petitioner and his counsel in the court below to the effect that the filing of the written statement pursuant to the adjournment granted by the court

below would suffice, not necessitating any further application for condonation of delay and/or acceptance of written statement.

In the present case, as evident from the affidavit to the present revisional application, it appears that the revisionist petitioner is a retired person of 72

years age and there might have been a communication gap between the petitioner and his counsel in the court below.

However, although misconception of law is ipso facto is not a ground for condonation of delay, particularly in the absence of any cause being shown

by the petitioner, since procedure is the handmaiden of justice, a last opportunity ought to be given to the substituted petitioners for the ends of justice

to file an application of show cause, indicating the reasons for the delay in filing the written statement.

Accordingly, C. O. No. 3430 of 2019 is allowed, thereby setting aside the impugned order and directing the petitioner to file a show cause petition

indicating in detail the reasons for the delay in filing the written statement within three weeks from date in the court below. If so made, the trial court

shall decide the said application upon hearing both sides, without being influenced in any manner by any of the observations made herein, on its own

merits and in accordance with law and decide the question of acceptance or non-acceptance of the belated written statement of the substituted

petitioners, on or without terms, subject to prior disposal of the applications for substitution of the heirs and legal representatives of the deceased

parties, if any.

It is made clear that in default of the petitioner availing the opportunity to file such application of show cause within three weeks from date in the court

below, the instant order shall stand automatically recalled without further reference to court and the trial court shall proceed with the ex parte hearing

of the suit.

The trial court is also requested to decide the suit itself as expeditiously as possible, preferably within one year from the date of communication of this

order to the said court.

The parties as well as the court below shall act on the written communication of this order by the learned advocates for the parties, accompanied by a

server copy of this order, without insisting upon prior production of the certified copy thereof.

There will be no order as to costs.

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.