ORDER

12.12.2022 Heard Shri G. Goswami, learned counsel for the applicant / appellant, who by means of this application has prayed for condonation of delay of 1203 days in filing the application for substitution of the legal heirs of the defendant no. 1. It is the case of the applicant that the connected LA Appeal has been filed against the judgment and order dated 05.05.2016 passed by the learned District Judge, Goalpara in LA (Reference) Case No. 87/2010. By the said judgment, the compensation has been enhanced from Rs.45,000/- per bigha to Rs.2(two) Lakhs per bigha.

2. Shri Goswami, learned counsel submits that during the pendency of the appeal, the sole respondent as claimant had passed away and therefore, the connected petition for substitution has been filed and their being a delay in filing the same, the present application has been filed.

3. On a specific query by this Court, Shri Goswami, learned counsel has referred to the averments made in paragraph 4 of the application which has been stated to be the reason for condonation of delay. The reason stated is that the applicant / appellant was ignorant of the death of the sole defendant. For ready reference, paragraph 4 is extracted hereinbelow-

“4. That your applicant submits that since the applicant/ appellant was ignorant of the death of the sole defendant and could not for that reason make an application for substitution of the legal representative of the defendant within the period specified under Limitation Act, 1963. Hence this application is being filed under Section 5 of the Limitation Act, 1963 for condonation of delay of 1203 days in filing the connected IA(C) No. of 2020 for substitution of the legal representative of the defendant. The delay caused in filing the substitution petition is not intentional but for above reason delay was caused hence this petition is being filed for condonation of delay.”

4. This Court on an earlier occasion i.e. 31.10.2022 had however noticed that the sole respondent defendant had passed away even before the corresponding appeal was filed. In that view of the matter, the appeal seems to have been filed against a person who had already death and therefore is not maintainable. Even, overlooking that aspect of the matter, the grounds stated in paragraph 4 are not even acceptable as the reference case was contested one wherein the Railways has contested against the prayer for enhancement.

5. On perusal of the judgment dated 05.05.2016 would reveal that the Railways were duly represented by its Counsel and after consideration all the facts and circumstances, the award was enhanced to Rs.2 (two) lakhs per bigha.

6. A condonation delay petition is required to be examined by mainly taking into account the following aspects:

i. The period of delay ii. The nature of explanation and iii. The merits of the case.

7. There is no doubt regarding the settled law on this field that in a delay condonation petition, a justice oriented and pragmatic approach has to be taken. However, in the instant case, as observed above, the delay is an exceptionally long and inordinate one of 1203 days and that too connected with an appeal against a contested case. Further, even before the appeal was filed, the sole defendant has passed away and therefore, the appeal is also otherwise not maintainable.

8. At this stage, Shri Goswami, learned counsel submits that the present delay is on the account of setting aside the abatement and for substitution whereas so far as the original land acquisition appeal is filed, there was also a delay which was about 161 days which according to him has been explained. The aforesaid submission perhaps will not aid the applicant / appellant and would rather adversely affect the applicant / appellant as even at the time of filing of the appeal against an inter-parte judgment they have neglected to file the same within the prescribed period of limitation. Though, Section 5 of the Limitation Act empowers a Court to condone delay in filing an