Allowed

Smti Babita Agarwal v. on the Death of Ranjit Chatterjee, Legal Heirs and Representatives and Ors.

Gauhati HC6 Nov 2023CRP(IO)/345/2023

Case brief

AI extract

What is this about?

The High Court allowed a revision petition against an order dismissing a substitution application due to limitation. The Court found the lower court record incorrectly noted no condonation petition was filed, despite evidence of a pending Section 5 application. The High Court set aside the dismissal and remanded the matter to record the condonation application.

What did the court decide?

The order dated 15.05.2023 is set aside and the matter is remanded to the Civil Judge to consider the pending condonation application and pass appropriate orders.

Smti Babita Agarwal Vs on the Death of Ranjit… — Succession and Inheritance | Gauhati HC (2023)

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GAHC010233562023

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

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Case No. : CRP(IO)/345/2023

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SMTI BABITA AGARWAL

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W/O SHRI DILIP AGARWAL, R/O UMA CHATTERJEE BUILDING, BEHIND MAITRI RESIDENCY, G.S. ROAD, PALTAN BAZAR, GUWAHATI-781008, ASSAM

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VERSUS

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ON THE DEATH OF RANJIT CHATTERJEE, LEGAL HEIRS AND REPRESENTATIVES AND ORS NAMELY

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1.1:SMTI. BABLI CHATTERJEE W/O LATE RAJAT CHATTERJEE R/O UMA CHATTERJEE BUILDING BEHIND MAITRI RESIDENCY G.. ROAD PALTAN BAZAR GUWAHATI-781008 ASSAM

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1.2:RAKTIM CHATTERJEE S/O LATE RAJAT CHATTERJEE R/O UMA CHATTERJEE BUILDING BEHIND MAITRI RESIDENCY G.. ROAD PALTAN BAZAR GUWAHATI-781008 ASSAM

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2:SMTI MOUSHMI BENERJEE W/O SRI AMITAVA BANDHOPADHAYA R/O ONGC COLONY

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SIBSAGAR DIST-SIBSAGAR ASSAM

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3:TARACHAND NAHATA S/O LATE MALCHAND NAHATA R/O UMA CHATTERJEE BUILDING BEHIND MAITRI RESIDENCY G.S. ROAD PALTAN BAZAR GUWAHATI-781008 ASSAM

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4:KAMAL JAIN S/O LATE RATAN LAL JAIN R/O UMA CHATTERJEE BUILDING BEHIND MAITRI RESIDENCY G.S. ROAD PALTAN BAZAR GUWAHATI-781008 ASSA

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Advocate for the Petitioner : MR B K SINGH

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Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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ORDER

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Date : 06-11-2023

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Heard Mr. B.K. Singh, learned counsel for the petitioner.

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It is noticed that this revision petition is against the order dated 15.05.2023 of the learned Civil Judge No. 3, Kamrup (Metro) in respect of the proceedings for substitution of the legal heirs of a deceased respondent. As notices are yet to be issued in the proceedings to the legal heirs to be substituted, we are of the view that the order impugned can be examined without issuing notice to the prospective legal heirs and the prospective legal

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heirs are only incidental beneficiaries of the order impugned dated 15.05.2023.

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The petitioner instituted TS No. 16/2018, amongst others, against one Rajat Chatterjee who was arrayed as defendant no. 1. It is stated that during the pendency of the title suit, Rajat Chatterjee died on 12.12.2018. On his death as application for substitution was not instituted within the prescribed time limit, the suit had abated against the defendant no. 1 Rajat Chatterjee. In the circumstance, the petitioner plaintiff subsequently filed petition for substitution, setting aside of abatement as well as for condoning the delay for filing the two applications. The petitioner instituted Misc Case No. 288/2019 under Section 5 of the Limitation Act, 1963 for condoning the delay in preferring the accompanying petition under Order 22 Rule 4 read with Section 151 of the CPC.

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The application for substitution of the legal heirs which was numbered as petition No. 1231/2019 came up for its consideration before the Civil Judge No. 3, Kamrup (Metro) and accordingly, the order dated 15.05.2023 was passed.

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By the order dated 15.05.2023 the application for substitution was held to be barred by limitation and accordingly, dismissed by arriving at a conclusion that no petition for condoning the delay under Section 5 of the Limitation Act had been filed by the petitioner. But it is noticed from the Annexure-2 page-26 of the present petition that Misc Case No. 288/2019 had been instituted by the petitioner under Section 5 of the Limitation Act for condoning the delay. Accordingly, it appears that there is an error of facts recorded by the learned Trial Court that no application for condoning the delay has been instituted by the petitioner.

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As the order dated 15.05.2023 is passed rejecting the application for substitution solely on the ground that no application for condoning the delay

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has been preferred whereas on the other hand the records reveal that Misc Case No. 288/2018 has been instituted for condoning the delay, we are of view that on facts the order dated 15.05.2023 is not maintainable. Accordingly, the order dated 15.05.2023 is set aside and the matter is remanded back to the Civil Judge No. 3, Kamrup (Metro) to take note of the Misc Case No. 288/2019 filed by the petitioner plaintiff for condoning the delay and pass an appropriate order in the said Misc Case No. 288/2019 as well as the other petitions filed by the petitioner plaintiff for substitution of the legal heirs and setting aside of abatement, as may be advisable under the law.

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Revision petition stands allowed as indicated above.

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JUDGE

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Comparing Assistant

Smti Babita Agarwal v. on the Death of Ranjit Chatterjee, Legal Heirs and Representatives and Ors.

Case brief

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Smti Babita Agarwal v. on the Death of Ranjit Chatterjee, Legal Heirs and Representatives and Ors.

Case brief

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What did the court decide?

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