On the Death of Appellant No. 1 his Legal Heirs - Smti Apati Bala Kalita and Others vs Ganesh Chandra Kalita

M. Sharma, J.—This application for vacating/setting aside the abatement order dated 26.3.92 passed by, this Court in second Appeal No. 25 of 1987 has been preferred by the legal heirs of Judgment debtor/Appellant Late Bhabendra Chandra Kalita with a petition for substitution and for substitution of delay.

The Petitioner No. 1 is the wife and Petitioner Nos. 2 to 5 are minors sons and daughters of the Judgment debtor. The ground for setting aside the abatement order is that the legal heirs who are illiterate rural widow and minors did not know about the pendency of any suit of proceedings wherein their husband/father was 4 party. As contended on behalf of the Petitioners they came to know about the second appeal execution suit from the co-villagers and came to Gauhati on 4.6.92 to enquire about the suit and that they did know even the name of the Advocate who conducted the case and had to return without result. Again on 8.6.92 the Petitioner came to Gauhati and somehow could obtain the name of the Advocate who conducted the case of her husband in the trial court and contacted him. In the petition the name of the Advocate was not given. On being informed about the dismissal of the appeal for non substitution of the legal heirs of her husband and being advised to take steps after meeting the Advocate who conducted the case in the trill court came to the residence of Late S.K. Sen but could not get any information as he expired and this fact was not know to the Petitioner. She collected papers from the junior of Late Sen who conducted the appeal in the High Court, Accordingly, present application has been filed engaging the advocate (Mr. Medhi) who conducted the suit in the trial court. Petitioner''s contention is that on the above mentioned circumstances which was beyond her control, she could hot file the application under Order 22 Rule 9(2) CPC in time.

The stand of the Respondent is that, he is the decree-holder in the Title Suit No. 271/82, Respondent in Title Appeal No. 15/86 and in the Second Appeal preferred by the husband of the Petitioner No. 1 she was very much aware of the pendency of the appeal before this Court, that husband of the Petitioner No. 1 Late Bhaben Chandra Kalita dated on 8.1.90 which was intimated to the Advocate of the Appellant by the advocate for the Respondent on 15.11,90 but inspite of that the Advocate for the Petitioner/Appellant did not take steps for bringing the legal heirs of the Appellant. Till dismissal on abatement by this Court on 26.3.92, after hearing counsel for both sides, the matter was languishing without taking any steps. After dismissal on abatement the Respondent started execution case which was stayed by High Court at the time of admission of the appeal. After the dismissal order the Applicant/Petitioner filed an application u/s 47 with Section 151 CPC before the executing court/Munsiff No. 1, Gauhati being Misc. Case No. 64/92. Execution proceeding was stayed till the disposal of the Misc. Case. In that application same facts taken in this application has been agitated. By order dated 18.12.92 the Misc. Case was dismissed and the court ordered for issuing of Writ of delivery of possession. No revision filed against the said order. It is alleged, only to block the writ of delivery of possession in the execution case, the present petition is filed and that even after the lapse of 8 months from their date of knowledge i.e. 8.6.92 no application filed for setting aside the abatement before the High Court.

As it appears, the second appeal was dismissed on 26.3.92, therefore, as admitted by the Petitioner, they came to know about it on 8.6.92, but application for abatement was filed on 28.1.93. The explanation for delay of 8 months in the petition for substitution or in the u/s 5 of the Limitation Act, not satisfactory and the Petitioner suppressed the fact that they preferred a petition u/s 47 CPC and that the same was rejected. It appears that the Petitioner has not come with a clean hand.

Admittedly there was more than 2 years delay in taking steps for substitution (from 15.11.90, the date of information by the advocate of Respondent).

I have heard Mr. Medhi, learned Counsel for the Petitioner and Mr. B.K. Goswami, learned Senior counsel for the Respondent.

Mr. Medhi, learned Counsel for the Petitioner has referred of the Apex Court as well as of this Court where the ratio was that the Court should not make a pendantic approach in condoning the delay, rather a liberal approach should be adopted, particularly when the aggrieved party is illiterate village poor widow with minor children and urged that even in cases where there was 6 years delay Apex court has taken liberal view on consideration of the facts and circumstances of the case.

In Neta Ram Vs. Jiwan Lal, the Apex Court held that a case can not be an authority on point of facts and each case has to be examined in the light of the circumstances existing in it. In another case i.e. Ambica Quarry Works v. State of Gujarat and Ors., (1987) 1 SCC 213 it has been held that the ratio of decision should be understood in the facts and situations of the particular case. It is an authority for what it actually decides and not what logically follows from it.

As appears from the above facts and circumstances of this case, it can not be said that due to ignorance or illiteracy or being a poor widow the Petitioner could not know about the pendency of the case. The suit was for eviction of the Petitioners and delivery of possession. Even after the knowledge of the dismissal on abatement, Petitioner instead of prefering petition for setting aside the abatement order before this Court preferred Misc. Case u/s 47 CPC and being unsuccessful, filed this petition for substitution with condonation of delay. It is well settled principle that for the latches and negligence of the counsel, the litigant should not suffer. It is, however, to be borne in mind that the submission that the delay is caused due to negligence and latches of the counsel has to be established with proof as the burden is on the Petitioner to prove that she has taken sufficient caution to prevent delay. Further the Petitioner very conveniently suppressed the fact that she had preferred Misc. Case u/s 47 CPC and was unsuccessful. Mere assertion that delay has been caused by ignorance or negligence of the counsel can not constitute sufficient cause. As disclosed from record Mr. Medhi''s name has been shown in the order of the High Court in Second Appeal No. 25/87 passed on 26.3,92. Admittedly Mr. Medhi conducted the suit in trial court and the Petitioner approached him to know about the fate of the case which established the fact that pen Petitioner was aware of the litigation upto High Court. In view of that matter the submission of Mr. Medhi that there was no negligence or latches on the part of the Petitioner is not convincing.

In view of my aforesaid reasons no sufficient cause has been able to be made out by the Petitioner for not prefering the petition, at least, before prefering application u/s 47 CPC before the court below.

In the result the Misc. Case is dismissed. No cost.