Allowed

Ganesh Payeng and Ors. v. Kula Payeng and Ors.

Gauhati HC11 Sept 2019I.A.(Civil)/453/2017

Case brief

AI extract

What is this about?

Single judge allowed impleadment of legal representatives of a deceased respondent in a second appeal. The respondent died during pendency of first appeal without substitution. Court condoned delay due to lack of notice and ordered cause-title correction for ends of justice.

What did the court decide?

Petition allowed; legal representatives of Respondent No. 5 to be impleaded and cause-title corrected.

Ganesh Payeng and Ors. Vs Kula Payeng and Ors. — Civil Procedure and Limitation | Gauhati HC (2019)

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Page No.# 1/2

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GAHC010193072017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : I.A.(Civil) 453/2017 I.A.(Civil) 454/2017

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1:GANESH PAYENG and ORS

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VERSUS

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1:KULA PAYENG and ORS

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Advocate for the Petitioner : MR.N HAQUE Advocate for the Respondent :

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Linked Case : I.A.(Civil) 453/2017

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1:GANESH PAYENG and ORS

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VERSUS

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1:KULA PAYENG and ORS

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Advocate for the Petitioner : MR.N HAQUE Advocate for the Respondent :

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BEFORE

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HONOURABLE MR. JUSTICE MIR ALFAZ ALI

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ORDER

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Date : 11-09-2019

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Heard Mr. SU Barbhuiya, learned counsel for the appellant.

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Both these two applications have been filed for substitution of legal heirs of respondent No.5 and also for setting aside abatement. It is contended by the learned counsel for the petitioner that the petitions may be construed as application

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Page No.# 2/2

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under Order 1 Rule 10 (2) CPC for impleadment of the legal representative of the respondent No.5.

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The delay in filing the application is already condoned vide order dated 11.09.2019 passed in I.A (Civil) No.452/2017.

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Peculiar situation of this case is that during the pendency of the first appeal, the respondent No.5 died. However, the legal representatives were not substituted and ultimately the appeal was disposed of without bringing on record the legal representatives of the respondent No.5.

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It is the contention of the learned counsel for the appellant that though respondent No.5 died during the pendency of the first appeal, the appellant/petitioner was not aware about the death of the respondent No.5 nor any information was given to the Court. Because of ignorance about the death of respondent No.5, the second appeal was filed against respondent No.5 who already died. Therefore, the appellant has sought for impleadment of the legal representatives of the respondent No.5 as respondent in the present second appeal.

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The reason for inability to file application in proper time and not impleading the legal representatives of the respondent No.5 at the time of filing of the appeal has been attributed to the lack of notice as indicated above and having considered the cause shown by the petitioner, the delay has been condoned.

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Having considered the peculiar facts and circumstances of the case, I deem it appropriate that the legal representatives of the respondent No.5 are required to be impleaded for ends of justice. Accordingly the petition is allowed.

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Office to make necessary correction in the cause-title of the connected appeal by bringing on record the legal representatives of the respondent No.5 as indicated in the petition.

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The I.A stands disposed of.

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J U D G E

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Smita

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Comparing Assistant

Ganesh Payeng and Ors. v. Kula Payeng and Ors.

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Ganesh Payeng and Ors. v. Kula Payeng and Ors.

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