The court emphasizes the importance of timely substitution upon a party’s death while considering the circumstances leading to delays and emphasizes the allowance of applications subject to costs.

CORAM: HONOURABLE MR. JUSTICE KHATIM REZA ORAL ORDER

10 09-01-2026 Learned counsel for the parties are present.

Re: I.A. No. 9188 of 2018

2. This interlocutory application has been filed under Order XXII Rule 3 read with Section 151 of the Code of Civil Procedure for substituting the names of the heirs of appellant nos. 6 & 9 who died on 10.07.2018 & 22.06.2018 respectively whose details are mentioned in paragraph no. 3. This interlocutory application has been filed on 07.12.2018. 3. It is further submitted that appellant no. 6, namely, Md. Hushna died leaving behind his two sons, namely, Sheikh Laddu & Sheikh Bablu. Appellant no. 9, namely, Meena Devi died leaving behind his two sons namely, Pankaj Kumar, Jugesh Tanti and one daughter, namely, Puja Devi.

4. Learned counsel for the appellants further submitted that a duly executed Vakalatnama on behalf of the heirs of deceased appellant nos. 6 & 9 have already been filed along with this interlocutory application.

Re: I.A. No. 3 of 2025 & I.A. No. 4 of 2025

5. I.A. No. 3 of 2025 has been filed under Order XXII , Rule 9(2) read with Section 151 of the Code of Civil Procedure for setting aside abatement against the deceased appellant nos. 6 & 9.

6. I.A. No. 4 of 2025 has been filed under Section 5 of the Limitation Act for condoning the delay in filing the setting aside abatement against the deceased appellant nos. 6 & 9.

7. Learned counsel for the appellants submits that the delay in filing this substitution petition caused due to some unavoidable reason. It is further submitted that Fekni Devi, who is making pairvi of this case, is an illiterate and poor lady. She informed the advocate clerk of the court below who was conducting the case in the court below, who mistakenly could not inform the counsel who was conducting the case in the Hon’ble High Court and as such, no substitution petition was filed within the time and ultimately when the appellant Fekni Devi got contacted to the lawyer of this Court and then she was informed that the appellant nos. 6 & 9 died. Thereafter substitution petition was filed. There is no deliberate or intentional laches on the part of the appellants in filing the substitution petition.

8. On the other hand, learned counsel for the respondent submits that the delay in filing the substitution petition is unexplained without giving any plausible explanation for delay. It is further submitted that the instant substitution petition has been filed much beyond the statutory period of limitation which shows gross negligence on the part of the appellants.

9. Considering the aforesaid facts and circumstances of the case and averments made in the interlocutory applications, the substitution petition is allowed after setting aside abatement against appellant nos. 6 & 9 and condone the delay in filing the setting aside abatement, subject to payment the cost of Rs. 5000/- to the learned counsel for the respondent within one week.

10. Office is directed to delete the name of appellant nos. 6 & 9 from the memo of appeal and substitute their heirs in their place after the aforesaid payment.

11. Accordingly, I.A. Nos. 9188 of 2018, 3 of 2025 &

4 of 2025 are allowed.

12. List this case after two weeks under the heading “For Hearing Under Order XLI Rule 11 CPC” with foot-note of

12:00 Noon.