Page No.# 1/8 GAHC010119472025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/1925/2025 ON THE DEATH OF APPELLANT LALIT CH. PEGU, HIS LEGAL HEIRS SMTI AYODHYA PEGU WIFE RESIDENT OF WARD NO. 3,IRRIGATION ROAD, NEAR TAMULI TVS SERVICING CENTRE, PO AND DIST DHEMAJI, ASSAM, 787057 2: SRI REEJU AKKU PEGU SON BOTH ARE THE R/O- WARD NO. 3 IRRIGATION ROAD NEAR TAMULI TVS SERVICING CENTRE P.O. AND DIST.- DHEMAJI PIN-787057 ASSAM. 3: SMT RINKU PEGU (DAUGHTER) RESIDENT OF FLAT NO 8195 SECTOR C POCKET 8 VASANT KUNJ NEW DELHI 11007 VERSUS SMT NANI PROVA SAIKIA W/O- SRI THANURAM SAIKIA, R/O- GAURISAGAR, P.O. AND P.S.- GAURISAGAR, DIST.- SIVASAGAR, ASSAM Advocate for the Petitioner : MR D CHOUDHURY, SHWETA SARMA,MR S DIFUSA Advocate for the Respondent : MR. S DIHINGIA, MS. K DAS,MS M CHANGMAI,MR. U DUTTA Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 17.06.2026 1. Heard Mr. D. Choudhury, the learned counsel for the applicants. Also heard Mr. U. Dutta, the learned counsel for the respondent. 2. This application under Section 5 of the Limitation Act, 1963 has been filed by the applicants praying for condoning the delay of 1038 days delay in filing the application for setting aside abatement of the appeal on the death of original appellant as well as for filing the application for substitution of the legal heirs of original appellant. 3. The learned counsel for the applicants has submitted that the predecessor-in-interest of the present applicants was the defendant in Title Suit No. 3/2006 filed by the present respondent before the Court of learned Munsiff No. 1, Dhemaji, Assam. The said suit was decreed in favor of the respondent. 4. Being aggrieved by the judgment and decree dated 12.03.2010, passed by the trial court i.e., learned Munsiff No. 1, Dhemaji, in Title Suit No. 3/2006, the predecessor-in-interest of the present applicants preferred a title appeal before the Court of learned District Judge, Dhemaji. The said appeal was also dismissed by the judgment dated 10.12.2010, passed by the Court of learned District Judge, Dhemaji, in Title Appeal No. 1/2010. 5. On being aggrieved by the aforesaid judgment of the appellate court, the predecessor-in-interest of the present applicants preferred a regular second appeal under Section 100 of the Code of Civil Procedure, 1908. The said appeal was registered as RSA No. 86/2011. Page No.# 3/8 6. The learned counsel for the applicants has further submitted that in the said appeal, by order dated 25.04.2011, the substantial question of law was formulated. However, on 19.09.2021 the appellant expired and this Court, by order dated 04.04.2025 disposed of the appeal by holding that by operation of law, the appeal stand abated on the death of the sole appellant. 7. The learned counsel for the applicants has submitted that the engaged counsel for the present applicants, who were also the engaged counsel for the original appellant, did not have the knowledge of the death of the sole appellant. He submits that the said fact came to be known to the present set of engaged counsel for the original applicants only whenon 19.03.2025, the engaged counsel for the respondent informed the court regarding death of the sole appellant on 19.09.2021. He further submits that since the engaged counsel for the original applicants were not in touch with the original appellant since the year 2021 and neither they were in the touch with the son of the original applicant, namely, Raja Migom Pegu, who also had expired in the meanwhile, the present petitioners could not be informed by the present set of counsels regarding the dismissal of the appeal on getting abated. 8. The learned counsel for the applicants further submits that since the applicant Nos. 1.2 and 1.3 were residing at Delhi, they were also not in touch with the present set of counsel. He submits that it is only on 22nd May 2025, when the present respondent started earth filling in thedecretal land, the present applicants came to meet the engaged counsel in Guwahati on 24.05.2025 and after coming to know about the dismissal of the appeal on getting abated, they requested their engaged counsel to take necessary steps for restoration of the appeal on 25.05.2025. Page No.# 4/8 9. The learned counsel for the applicants submits that since the present applicants were not knowing regarding the dismissal of RSA No. 86/2011 till 22nd May, 2025. Hence, from the date of knowledge, only 72 days of delay has been there in filing the application for setting aside abatement by the present applicants. The learned counsel for the applicants submits that there has been no laches or negligence on the part of the present applicants or their engaged counsel in taking steps for filing application for setting aside abatement as well as for filing application for substituting the legal representatives of deceased appellant in RSA 86/2011. 10. On the other hand, Mr. U. Dutta, the learned counsel for the respondent has submitted that the applicants have failed to show any sufficient cause which prevented them from filing the application for setting aside abatement within the prescribed period of limitation. He submits that the sole appellant had expired on 19.09.2021 and the application for setting aside abatement has been filed on 02.06.2025 and thereby total delay in filing of the application for setting aside abatement and substitution of legal heirs of the deceased appellant was of 1352 days. He submits that if from the aforesaid period, the period of 90 days for filing substitution application and period of 60 days for filing an application for setting aside abatement is deducted, and thereafter, 90 more days are deducted in pursuant to the direction of the Apex Court in the case of “Re: Cognizance for Extension of Limitation” [M.A. No. 21/2022 Suo Motu Writ Petition (C) No. 3/2020], the total delay comes to 1113 days, which the applicants have failed to satisfactorily explain. 11. The learned counsel for the respondent further submits that the applicants have stated in their application for condonation of delay the fact of Page No.# 5/8 their coming to know about the dismissal of the appeal belatedly. However, there is nothing to indicate that on death of the original appellant, they intimated the counsel regarding the fact of the death. He submits that the appeal gets abated by operation of law immediately after lapse of 90 days from the date of death of the present appellant and thereafter a window period of 60 days is also available for the successors of the original appellant to pray for setting aside abatement. However, same was not availed and the fact of death of the appellant was not intimated by the successor-in-interest of the original appellant to the Court or to their engaged counsel. 12. He further submits that the son of the appellant, namely, Raja Migom Pegu, has admittedly expired on 07.06.2014, whereas, the records shows that the present set of counsel were engaged only in the year 2017. Therefore, the plea that the son of the original appellant used to be in contact with the engaged counsel is not a fact. He further submits that the fact that on 22nd May 2025, when the respondent started earth filling in the suit land, the applicants came to meet their engaged counsel on 24.05.2025 itself shows that they were aware about the pendency of the appeal, therefore, it was for the successor-in- interest of the original appellant to intimate the Court or the engaged counsel regarding death of the original plaintiff and take necessary steps for substitution of legal heir of the original appellant within the prescribed period of limitation. However, they have failed to do so and have slept over their right for more than four years, which indicates gross negligence and lack of due diligence on their part. Hence, he submits that this is not a fit case to condone the huge delay in approaching this Court for filing the application for setting aside abatement. He, therefore, prays for dismissing this instant interlocutory application. Page No.# 6/8 13. I have considered the submissions made by the learned counsel for both sides and have gone through the materials on record. 14. Though, in cases of application for condonation of delay, a justice- oriented approach has to be taken and courts are generally liberal in dealing with an application for condonation of delay, however, it is not that in every case by mere filing of an application for condonation of delay, the delay would be mechanically condoned by the courts without the applicants being able to show that they were prevented by sufficient cause in approaching the Court within the prescribed period of limitation for setting aside abatement. 15. In this case, admittedly the original appellant died on 19.09.2021. In view of the death of the original appellant and in view that no steps for substituting the legal heirs/representatives of the original appellant was taken, the appeal gets abated by operation of law after expiry of 90 days from the date of death of the original appellant. 16. It is also pertinent to mention that though the fact of abatement of the appeal has been recorded by this Court in its order dated 19.03.2025, however, the fact remains that it is not on 19.03.2025, but immediately on the 91st day of the date of death of the original appellant, the suit gets abated in the instant case. After the abatement of the appeal, the applicants have also failed to avail the window period of 60 days for filing an application for setting aside abatement. 17. It also appears on perusal of the grounds for delay stated by the applicants in paragraph Nos. 3, 4 and 5 of the application for condonation of the delay that the emphasis of the applicants are on the fact that they came to Page No.# 7/8 know about dismissal of suit on 24.05.2025 only. However, this is not a case of dismissal of suit for default but a case of abatement of appeal on failure of the part of the successor of the original appellant for praying for substitution of the legal heirs of the original appellant as well as for setting aside abatement of the appeal within the prescribed period of limitation. 18. The applicants have nowhere stated that they were not aware about the fact of pendency of the Regular Second Appeal No. 86/2011, which was filed by their predecessor-in-interest and they have also nowhere indicated that why delay was caused in intimating the fact of death of the appellant to their engaged counsel. 19. It is not a case where the counsel were required to intimate the successor-in-interest of the original appellant regarding the recording of fact of abatement by the Court, but a case where the fact of death of the original appellant ought to have been brought to the notice of the Court or to the engaged counsel of the appellant by the successor-in-interest of the original appellant. No reason has been shown as to why delay in intimating such fact was committed. 20. The connected regular second appeal was filed by the predecessor-in- interest of the present applicants against the concurrent finding of two courts below and thereafter even after the death of the original appellant, the said fact was not brought to the notice of the engaged counsel for the appellant or to the Court by the present applicants and no reason has been shown for the same. 21. As such, this Court is of considered opinion that the applicants have failed to show that they were prevented by sufficient cause in filing the Page No.# 8/8 application for setting aside abatement of the appeal within the prescribed period of limitation. 22. Accordingly, this interlocutory application is dismissed. JUDGE Comparing Assistant