Courts adopt a liberal approach in allowing substitution after death of an appellant, emphasizing that ignorance of the appeal's pendency warrants consideration in condoning delay.

JUDGMENT :

Biswaroop Chowdhury, J.

1.An application for substitution filed by the Applicants being CAN-02 of 2025 and application for dismissal of the Appeal on the ground of abatement filed by the respondent was taken up and heard analogously.

2. The respondent in the instant appeal on 4th September 2024 filed an application before this Court for dismissal of the appeal on ground of abatement.

3. It is the contention of the respondent/applicant that the sole Appellant/plaintiff died on 7th April 2021 and no application for substitution is filed although statutory period under the Limitation Act is over. It is further contended that the respondent came to know of the death of the Appellant on the month of January 2024 and upon obtaining death certificate on or about 30th August 2024 he came to Calcutta for consulting his Learned Advocate and as the application could not be filed before Jalpaiguri Court Bench, the application was filed before Calcutta Bench. The Applicants being the heirs of the sole appellant has filed an application for substitution upon setting aside abatement and upon condoning delay of 1424 days.

4. It is the contention of the applicants that the original appellant was himself conducting entire lis from its very inception and the petitioners/applicants were not aware of the pendency of the instant appeal and had no knowledge regarding the details of the same. It is further contended that on August 19, 2025 the matter came up for hearing before the Hon’ble Justice Partha Sarathi Sen when it was informed by the Learned Advocate for the respondent that the sole appellant had died in the year 2021. It is further contended by the applicants that on the particular date Mr. Debasish Mukhopadhyay Learned Advocate appearing for the original appellant had inadvertently submitted before the Hon’ble Court that an application for substitution had already been filed on behalf of the applicants and was pending. Since the instant matter being an old matter was pending before the principal Bench of the Hon’ble Court, and the entire brief of the instant case was in the chamber of Mr. Mukhopadhyay at Kolkata as such at the time of hearing on August 19, 2025 Mr. Mukhopadhyay could not check his brief and an erroneous submission was made at the time of hearing. It is also contended that the matter was pending before the Principal Bench all along and had suddenly appeared before the Circuit Bench at Jalpaiguri and as such Mr. Mukhopadhyay, who was already in Jalpaiguri to conduct matters before the Circuit Bench was unable to check the brief of the instant case. It is contended that after hearing of the matter on August 19,2025, Mr. Mukhopadhyay came back to Calcutta on August 24, 2025 and after going through the brief somehow contacted the petitioners and ascertained about the death of the original appellant Kabindra Nath Barman and advised the petitioners to file application for substitution after setting aside abatement.

5. The application for substitution is objected by the respondent. It is the contention of the respondent that the allegation made in paragraphs 4 of the application regarding ignorance of the case are false and baseless. It is further contended that the statements made in paragraph 5, 6, 7, 8, 9, 10, and 11 regarding Learned Advocate of the petitioner coming to know when the matter appeared in the list of His Lordship the Hon’ble Justice Partha Sarathi Sen on 25th August 2025 and the Learned Advocate for the petitioner ascertaining the death of the original appellant and advising the petitioners to take necessary steps are all fal