Page No.# 1/9 GAHC010234622023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/220/2024 ON THE DEATH OF ABDUL MALIK HIS LEGAL HEIRS 1.1: ATAFUL NESSA W/O ABDUL MALIK R/O VILL. BOTORASHI (KESHORKAPON) P.O. TILABAZAR PARGONA KUSHIYARKUL P.S. AND DIST. KARIMGANJ ASSAM PIN 788709. 1.2: SELIMUDDIN AHMED S/O ABDUL MALIK R/O VILL. BOTORASHI (KESHORKAPON) P.O. TILABAZAR PARGONA KUSHIYARKUL P.S. AND DIST. KARIMGANJ ASSAM PIN 788709. 1.3: RUKIA BEGUM S/O ABDUL MALIK R/O VILL. BOTORASHI (KESHORKAPON) P.O. TILABAZAR PARGONA KUSHIYARKUL P.S. AND DIST. KARIMGANJ ASSAM PIN 788709. Page No.# 2/9 1.4: BABUL HUSSAIN S/O ABDUL MALIK R/O VILL. BOTORASHI (KESHORKAPON) P.O. TILABAZAR PARGONA KUSHIYARKUL P.S. AND DIST. KARIMGANJ ASSAM PIN 788709. 2: ABDUL JALIL S/O LATE KONAI MIA R/O VILL. BOTORASHI (KESHORKAPON) P.O. TILABAZAR PARGONA KUSHIYARKUL P.S. AND DIST. KARIMGANJ ASSAM PIN 788709. 3: ABDUL BARI S/O LATE KONAI MIA R/O VILL. BOTORASHI (KESHORKAPON) P.O. TILABAZAR PARGONA KUSHIYARKUL P.S. AND DIST. KARIMGANJ ASSAM PIN 788709 VERSUS ON THE DEATH OF MD. LEDAI MIA HIS LEGAL HEIRS SMTI MOINA BEGUM AND OTHERS 1.1:MOINA BEGUM W/O LATE LEDAI MIA R/O VILL. BOTORASHI P.O. TILABAZAR P.S. AND DIST. KARIMGANJ ASSAM PIN 788709. 1.2:RAJIU MIA Page No.# 3/9 S/O LATE LEDAI MIA R/O VILL. BOTORASHI P.O. TILABAZAR P.S. AND DIST. KARIMGANJ ASSAM PIN 788709. 1.3:SAJU MIA S/O LATE LEDAI MIA R/O VILL. BOTORASHI P.O. TILABAZAR P.S. AND DIST. KARIMGANJ ASSAM PIN 788709. 1.4:MASUM MIA @ MASUM AHMED S/O LATE LEDAI MIA R/O VILL. BOTORASHI P.O. TILABAZAR P.S. AND DIST. KARIMGANJ ASSAM PIN 788709. 1.5:MANARA BEGUM D/O LATE LEDAI MIA C/O RAJU MIA R/O VILL. BOTORASHI (KESHORKAPON) P.O. TILABAZAR P.S. AND DIST. KARIMGANJ ASSAM PIN 788709. 1.6:REGIA BEGUM D/O LATE LEDAI MIA C/O RAJU MIA W/O MAJIRUDDIN R/O VILL. BANAMALI P.O. TILABAZAR P.S. AND DIST. KARIMGANJ Page No.# 4/9 ASSAM PIN 788709 1.7:SAYRA BEGUM D/O LATE LEDAI MIA C/O RAJU MIA R/O VILL. BOTORASHI (KESHORKAPON) P.O. TILABAZAR P.S. AND DIST. KARIMGANJ ASSAM PIN 788709 1.8:SHABU BEGUM D/O LATE LEDAI MIA R/O VILL. BOTORASHI (KESHORKAPON) P.O. TILABAZAR P.S. AND DIST. KARIMGANJ ASSAM PIN 788709 1.9:LAKHI BEGUM D/O LATE LEDAI MIA R/O VILL. BOTORASHI (KESHORKAPON) P.O. TILABAZAR P.S. AND DIST. KARIMGANJ ASSAM PIN 788709 2:MD. SOFAI MIA S/O LATE HAI MIA R/O VILL. BOTORASHI P.O. TILABAZAR P.S. AND DIST. KARIMGANJ ASSAM PIN 788709 3:MUSSTT. HASOI BIBI D/O LATE HAI MIA R/O VILL. BOTORASHI P.O. TILABAZAR Page No.# 5/9 P.S. AND DIST. KARIMGANJ ASSAM PIN 788709 4:MUSSTT. LACHU BIBI D/O LATE HAI MIA R/O VILL. BOTORASHI P.O. TILABAZAR P.S. AND DIST. KARIMGANJ ASSAM PIN 788709 5:MUSSTT. RUSNA BEGUM D/O LATE HAI MIA R/O VILL. BOTORASHI P.O. TILABAZAR P.S. AND DIST. KARIMGANJ ASSAM PIN 78870 Advocate for the Petitioner : MR. M H RAJBARBHUIYAN, Advocate for the Respondent : MR J DAS, Page No.# 6/9 BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER Date : 02.06.2025 Heard Md. M. H. Rajbarbhuiyan, learned counsel appearing for the applicant. Also heard Ms. S. Acharjee, learned counsel appearing on behalf of Mr. J. Das, learned counsel for the respondent. 2. By way of this application under Section 5 of the Limitation Act, 1963 of CPC, present application is filed for condoning the delay of 257 days in filing the connected regular second appeal. 3. It appears that during the pendency of the regular second appeal, the appellant No.1 expired and since no substitution application was filed due to want of knowledge as regards the death of the appellant No.1, the appeal got abated after the expiry of the statutory period. Hence, an application for setting aside the abatement of the appeal in respect of the deceased appellant No.1 as well as an application for substitution of the legal heirs of the appellant No.1 has been filed. 4. However, there has been a delay of 257 days while filing the aforesaid applications. Accordingly, the present condonation application has been filed. 5. Md. M. H. Rajbarbhuiyan, learned counsel appearing for the applicant submits that the delay has been occasioned for no fault. 6. Ms. S. Acharjee, learned counsel appearing for the respondent submits that she has received no instruction to oppose the prayer for condonation. Page No.# 7/9 7. I have heard the learned counsel appearing for both the parties and have perused the material available on record. 8. Apt to refer to paragraphs 2, 3, 4, 5 and 6 of the interlocutory application, which is reproduced hereunder for ready reference:- “2. That the applicants state that appellant no. 2 and 3 are the brother in law of present applicant no. 1 and uncles of present applicants no. 1(b) to 1(d) and as such they were wrongly advised by some local Advocates that as the other adult members of the same family are very much on record viz; Abdul Jalil and Abdul Bari, substitution of the legal heirs of late Abdul Malik may not be required and on this idea and understanding they were not taking steps for filing any application, which as per law they ought to have filed within 90 days i.e. on or before 29/11/22, from the date of death of deceased Abdul Malik, i.e. appellant no. 1. 3. 1. 3. That as such now counting from 29th November 2022 today i.e. on 10th day of October, 2023 there has been a delay of 254 days in filing this application for substitution. 4. That the applicants further beg to state that because of lack of taking steps for substitution the related appeal in respect of appellant no. 1 gets abeted on the expiry of 90 days from the death of appellant no. 1 as per law and hence the humble applicants respectfully pray for setting aside the abetment of the appeal in respect of deceased appellant no. 1 in as much as stated above they were under a wrong impression of non requirement of the substitution. 5. That the applicants now respectfully state that on 30th September 2023 the present applicant no. 1(b) viz; Selimuddin Ahmed came to Guwahati for his medical treatment and contacted his counsel as to know the present status of their family appeal and in course of discussion he informed that his father viz; Abdul Malik died on 31/8/2022 and accordingly his counsel advised him to take urgent steps for substitution bringing the names of all legal heirs of deceased Abdul Malik on record. Accordingly the applicant no. 2 went back home and on 6/10/23 he brought the Death Certificate of his father and also Vakalatnama for the legal heirs of deceased, Abdul Malik and accordingly steps for bringing on records the name of legal heirs of deceased, Abdul Malik are taken today on 10/10/23. Page No.# 8/9 6. That the applicants respectfully state that today by this application while praying for the condonation of the delay of 254 days they are filing this application for (i) condonation of delay (ii) an application for setting aside abetment which took place on 29/11/22 and (iii) an application for bringing on record the name of the present applicants in place of the deceased husband / father as "on the death of Abdul Malik, appellant no. 1 his legal heirs :-1 (a) Ataful Nessa Begum, wife, aged about 58 years, 1(b) Selimuddin Ahmed, son, aged about 34 years, 1(c) Rukia Begum, daughter, aged about 41 years and 1(d) Babul Hussain, son, aged about 32 years of Vill Botorashi (Keshorkapon), P.O. - Tilabazar, Pargona - Kushiyarkul, P.S. & District - Karimganj, Assam, Pin - 788709". 9. It further appears that by way of an additional affidavit in terms of the direction given by this Court by order dated 27.02.2025, the applicant has clarified as under:- “1. That on the death of appellant no. 1, viz; Abdul Malik, application for substitution of the name of the legal heirs of the said deceased person was required to be filed but they failed to approach in time. And ultimately applications (condonation, substitution etc.) were filed on 11/10/2023. As such as per calculation there has been delay of 257 days in taking steps for substitution by filing necessary applications, which may be shown as follows :- Date of Death 31/08/2022 plus Limitation 90 days it comes to 28/11/2022 plus another 60 days under Section 121 of Limitation Act, it comes to 27/01/2023. As such the delay starts from 27/01/2023 and as the connected applications for substitution has been filed on 11/10/2023, the delay is calculated as 257 days from that date. 2) That while filing the necessary applications it was miscalculated through over sight and as such it was wrongly mentioned as 314 days and in some place it was also wrongly written as 254 days, these were all unintentional and mistakenly taken place on miscalculation. 3) That by this Additional Affidavit, in view of the Hon'ble Court's order dated 27/02/2025 as mentioned above the delay has been Page No.# 9/9 properly calculated and clarified for the convenience of this Hon'ble Court which may kindly be considered for the ends of justice.” 10. Reading of the aforesaid averments, it appears that grounds pleaded for in support of the condonation prayer is bona-fide and sufficient. 11. That being so, the delay is condoned. 12. Accordingly, the IA stands allowed and disposed of. JUDGE Comparing Assistant