JUDGMENT :

In S.A. 33 of 2009 Re : I.A. No : CAN 2 of 2022 with CAN 3 of 2022

1. The appellant nos. 1, 2(e), 2 (f), 3(a) and 3(b) have died intestate during the pendency of the present second appeal on diverse dates.

2. Except appellant no. 3(a), who died on December 05, 2021, all the above mentioned appellants died long back but their heirs and legal representatives were not brought on record within this long period as a consequence the appeal has abated so far as it relates to the said deceased appellants.

3. These are applications for substitution of the heirs and legal representatives of the said deceased appellants in the present second appeal and condonation of delay thereto.

4. Mr. Ayan Banerjee learned advocate for the appellants submits that there was lack of communication between the appellants and their erstwhile advocate which resulted delay in filing the application for substitution.

5. Mr. Angshuman Chakraborty, learned advocate for the respondents vehemently objects to the prayer for condonation of delay, he submits that the explanation offered in the application is not only unbelievable but also contradictory to the materials-on-record. He further submits that the delay is almost of twelve years and in view of long length of delay, usual liberal approach to condone delay cannot be adopted. In support of his such submission, he places reliance on the decision of the Hon’ble Supreme Court in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Ors., reported in (2013) 12 SCC 649.

6. Heard learned advocate for the parties, perused the materials-on-record.

7. The present appeal since is arising out of a suit for eviction on the death of some of the appellants the entire appeal will abate, the surviving appellants can continue with the appeal but to avoid unnecessary complication, particularly when the substitution of the heirs of deceased appellants will not cause any prejudice to the respondents, the said delay needs to be condoned for ends of justice.

8. There is no dispute with regard to the proposition laid down in the above decision of the Hon’ble Supreme Court that the approach to condone the delay whether will be strict or liberal, depends upon the length of the delay.

9. In the present case on the death of some of the appellants and on consequent failure of the surviving appellants to bring the heirs and legal representatives of the deceased appellants on record within the period of limitation do not cause abatement of the appeal as a whole, as such the ratio of the said decision will not be applicable in the present case notwithstanding the length of delay.

10. However, the appellants’ negligence to take appropriate steps to bring the heirs and legal representatives of the deceased appellants on record within the stipulated period of time has caused harassment to the respondents which must be compensated by appropriate costs.

11. The said delay therefore is condoned, subject to the payment of costs of Rs. 30,000/- by the appellants to the respondents within two weeks from date, in default, the application for condonation of delay shall stand dismissed without any reference to this Court.

12. In consequence of condonation of said delay, the abatement of the appeal so far as it relates to the deceased appellants, is set aside.

13. The heirs and legal representatives of the said deceased appellants whose particulars have been set out under Paragraphs 10, 11, 12, 13 and 14 of the application for substitution be substituted in place and instead of the said deceased appellants in the present second appeal.

14. I.A. No : CAN 2 of 2022 and I.A. No : CAN 3 of 2022 are thus disposed of.

15. The department is directed to carry out necessary amendments in the cause title of the memorandum of appeal.

16. The Vakalatnama of the substituted appellants annexed with the application for substitution, subject to verification, be tagged with the record.

Re : I.A. No : CAN 4 of 2022

17. The respondent no. 1 died