Sharafat Hussain (Dead) through LRs. & Ors. Vs. Mohd. Shafiq & Ors.
EmailAppeal: Civil Appeal No. 12261 of 1996
(Arising out of SLP (C) No.24991 of 1995)
(From the Judgment and Order dated 25.7.95 of the Delhi High Court in C.M.P. No. 534/92 in R.F.A. No. 118 of 1987).
(Arising out of SLP (C) No.24991 of 1995)
(From the Judgment and Order dated 25.7.95 of the Delhi High Court in C.M.P. No. 534/92 in R.F.A. No. 118 of 1987).
Petitioner: Sharafat Hussain (Dead) through LRs. & Ors.
Respondent: Mohd. Shafiq & Ors.
Apeal: Civil Appeal No. 12261 of 1996
(Arising out of SLP (C) No.24991 of 1995)
(From the Judgment and Order dated 25.7.95 of the Delhi High Court in C.M.P. No. 534/92 in R.F.A. No. 118 of 1987).
(Arising out of SLP (C) No.24991 of 1995)
(From the Judgment and Order dated 25.7.95 of the Delhi High Court in C.M.P. No. 534/92 in R.F.A. No. 118 of 1987).
Judges: K.RAMASWAMY & G.B. PATTANAIK, JJ.
Date of Judgment: Sep 02, 1996
Appearances:
Mr. Manoj Swarup, Mr. S. Lalitha Kohli, Mr. Manoj Kumar Misra, Mr. C. Siddhartha, Advocates for the Appellants.
Shri Narain, Mr. Yashwanit Mathur, Advocates for the Respondents No. 2.
Ms. Priya Hingorani, Advocates for the Respondent No. 3.
Head Note:
CODE OF CIVIL PROCEDURE
Practice and Procedure
Abatement of appeal due to non bringing on record of legal representatives consequent to death of petitioners – Held that affidavit of Advocate stating delay to be due to his not being able to communicate with his legal heirs and of legal representatives not being aware of the appeal is valid- Delay is condoned and abatement is set aside.
Practice and Procedure
Abatement of appeal due to non bringing on record of legal representatives consequent to death of petitioners – Held that affidavit of Advocate stating delay to be due to his not being able to communicate with his legal heirs and of legal representatives not being aware of the appeal is valid- Delay is condoned and abatement is set aside.
JUDGEMENT:
O R D E R
1. Leave granted.
2. We have heard learned counsel on both sides.
3. This appeal by special leave arises from the order of the High Court of Delhi made on July 25, 1995 in CMP No.534/92 wherein it was held that the appeal had abated and consequently the same was dismissed.
4. It is not necessary to dilate upon the facts on merits. Suffice it to state that pending first appeal in the High Court, the sole appellant died on December 1, 1990. Intimation of death was given by the counsel for the respondents on August 5, 1991, but the application could not be filed due to the delay on the part of the counsel for the deceased-appellant as sworn in by him in his affidavit. Consequently, the appeal having abated was dismissed on November 18, 1991. Then an application came to be filed on May 4, 1992 seeking setting aside of the abatement, condonation of the delay in filing the application and to bring the legal representatives of the sole appellant on record. That application came to be dismissed for failure to give proper explanation. Thus, this appeal by special leave.
5. The advocate for the deceased-appellant has stated in his affidavit thus:
“As I did not have with me the address of the legal heirs of the appellants even as they lived in the same house where the deceased resided in Phatak Habash Khan, I could not contact or communicate to them that they had to file an application for substitution of heirs within the stipulated time. It was only on 4.5.1992 that Shri Mazahar Hussain, one of the legal representatives of the deceased, chanced to meet me in Khari Baoli that I informed him of the appeal having been field by his late father of which he expressed total ignorance and its abatement.”
6. Consequently, the application came to be filed on May 4, 1992. In view of the statement of the counsel for the deceased-sole appellant that the delay had occurred since he could not communicate to the legal representatives of the information issued by the respondents of the death and that the legal representatives obviously were not aware of the appeal in filed by their father; that resulted in abatement for not bringing the legal representatives on record.
7. The appeal is allowed. Delay is condoned. Abatement is set aside. Delay in bringing the legal representatives on record is condoned. The legal representatives are brought on record. The High Court is requested to dispose of the appeal as expeditiously as possible. No costs.
1. Leave granted.
2. We have heard learned counsel on both sides.
3. This appeal by special leave arises from the order of the High Court of Delhi made on July 25, 1995 in CMP No.534/92 wherein it was held that the appeal had abated and consequently the same was dismissed.
4. It is not necessary to dilate upon the facts on merits. Suffice it to state that pending first appeal in the High Court, the sole appellant died on December 1, 1990. Intimation of death was given by the counsel for the respondents on August 5, 1991, but the application could not be filed due to the delay on the part of the counsel for the deceased-appellant as sworn in by him in his affidavit. Consequently, the appeal having abated was dismissed on November 18, 1991. Then an application came to be filed on May 4, 1992 seeking setting aside of the abatement, condonation of the delay in filing the application and to bring the legal representatives of the sole appellant on record. That application came to be dismissed for failure to give proper explanation. Thus, this appeal by special leave.
5. The advocate for the deceased-appellant has stated in his affidavit thus:
“As I did not have with me the address of the legal heirs of the appellants even as they lived in the same house where the deceased resided in Phatak Habash Khan, I could not contact or communicate to them that they had to file an application for substitution of heirs within the stipulated time. It was only on 4.5.1992 that Shri Mazahar Hussain, one of the legal representatives of the deceased, chanced to meet me in Khari Baoli that I informed him of the appeal having been field by his late father of which he expressed total ignorance and its abatement.”
6. Consequently, the application came to be filed on May 4, 1992. In view of the statement of the counsel for the deceased-sole appellant that the delay had occurred since he could not communicate to the legal representatives of the information issued by the respondents of the death and that the legal representatives obviously were not aware of the appeal in filed by their father; that resulted in abatement for not bringing the legal representatives on record.
7. The appeal is allowed. Delay is condoned. Abatement is set aside. Delay in bringing the legal representatives on record is condoned. The legal representatives are brought on record. The High Court is requested to dispose of the appeal as expeditiously as possible. No costs.
