Negligence in filing a substitution petition within the required time can lead to the abatement of an appeal.

Gurusharan Sharma, J.

1. In Title Appeal No. 61 of 1983, pending before the IVth Additional District Judge, Bhagalpur, at the instance of the appellants herein, respondents 1 and 8 died. On 27.3.1985, a petition on behalf of the respondents was filed stating therein that Santokhi Mandal, respondent No. 8 died on 11.11.1984 and thereafter on 3.5.1985 another petition was filed stating therein that respondent No. 1 died on 15.1.1985 and steps for substitution having not been taken in time, the appeal stood abated.

2. However, on 9.5.1985, the appellants filed a petition for substitution. It was claimed therein that the respondent No. 1 died on 10.2.1985. The date of death of respondent No. 8 as given by the respondents was also challenged, but no specific date was given.

3. In this regard, the parties adduced oral evidence and a number of documents were exhibited. The Court below accepted the respondents version that Hari Poddar, respondent No. 1 died on 15.1.1985. No petition for condoning the delay and setting aside abatement was filed.

4. So far as the death of respondent No. 8 was concerned, the Court below after considering the materials brought on record, held that the appellants failed to explain the delay in taking steps for filing substitution petition, rather they came out with a wrong story of being ignorant of the death as they were living out side. The First appellate Court, therefore, held that the appeal stood abated in part in respect of the lands of khata No. 912, 3356 and 3486 only, but was to proceed against the respondents 5 to 7 and 9 in respect of the lands of khata Nos. 759 and 3349.

5. I find that in the present case the appellants had full knowledge of the death of, both the of respondents 1 and 8 and as such no doubt, there had been some amount of negligence on the part of the appellants in not making the application for substitution within time.

6. To my mind, it cannot be said that the First appellate Court had acted improperly or illegally in the facts and circumstances of the case in refusing to set aside abatement in respect of those two respondents.

7. I do not find any reason to interfere with the impugned order. This appeal is dismissed. However, there will be no order as to costs. Let the lower Court Records be sent down forthwith.