On the Death of Raichand Bararia His Legal Heirs Laxmi Bararia and 3 Ors. Vs M/S. Kishorilal Vijay Kumar H.U.F. and Anr.

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GAHC010215032022

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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)/3324/2022

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ON THE DEATH OF RAICHAND BARARIA HIS LEGAL HEIRS LAXMI BARARIA AND 3 ORS. W/O LT. RAICHAND BARARIA R/O SHIVAM COMPLEX BHARALUMUKH GUWAHATI-9 DIST- KAMRUP METRO ASSAM

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2: SHRI KAMAL BARARIA S/O LT. RAICHAND BARARIA R/O SHIVAM COMPLEX BHARALUMUKH GUWAHATI-9 DIST- KAMRUP METRO ASSAM

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3: SHRI MUKESH BARARIA S/O LT. RAICHAND BARARIA R/O SHIVAM COMPLEX BHARALUMUKH GUWAHATI-9 DIST- KAMRUP METRO ASSAM

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4: PARVIN BARARIA S/O LT. RAICHAND BARARIA R/O SHIVAM COMPLEX BHARALUMUKH GUWAHATI-9 DIST- KAMRUP METRO ASSAM VERSUS

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M/S. KISHORILAL VIJAY KUMAR H.U.F. and ANR. REP. BY SMTI. KUSUM MOUR AS KARTA KEDAR ROAD GHY-9 ASSAM

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2:SMT. KUSUM MOUR W/O LATE VIJAY KUMAR MOUR R/O KEDAR ROAD GUWAHATI-9 -----------Advocate for : MR.S P ROY Advocate for : MR. J SARMAH appearing for M/S. KISHORILAL VIJAY KUMAR H.U.F. and ANR.

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BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

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ORDER

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Date : 02.04.2025

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1. Heard Mr. J. Das, the learned counsel for the applicant. Also heard Mr. J. Sarmah, the learned counsel for the all the respondents.

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2. This Interlocutory Application has been filed by the applicant praying for condoning the delay in filing the application for setting aside the abatement as well as for the substitution of the legal heirs of the deceased petitioner, namely, Mr. Raichand Bararia.

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3. The learned counsel for the applicant has submitted that though, inadvertently, in the delay condonation petition, it has been stated that the delay is of 98 days, however, in fact, the delay in filing the petition for setting aside the abatement is only of 38 days and the same may be taken into consideration while deciding this Interlocutory Application.

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4. The learned counsel for the applicant has also submitted that the petitioner expired on 14.04.2022, however, the substitution petition could not be

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filed within the period of limitation as during the regular cleaning of the chamber of the engaged counsel for the petitioner, the records of the case get misplaced and it could be traced up only in the month of October, 2022. 5. The learned counsel for the applicant has submitted that the applicants were not at fault and they may not be made to suffer due to the negligence of their engaged counsel.

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6. On the other hand, Mr. J. Sarmah, the learned counsel for the respondent has submitted that the fact of the death of the petitioner was made known to the Court by the learned counsel for the respondent by filing of an application under Order 22 Rule 10 (A) of the Code of Civil Procedure, 1908, on the 29.04.2022. However, in-spite of that, the petitioner failed to take steps for filing the substitution application within the period of limitation.

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7. I have considered the submissions, made by the learned counsel for both sides and have gone through the averments made in the application for condonation of the delay and the written objection filed against the same.

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8. Considering the grounds for the delay shown in paragraph No.11 of the condonation of delay application, this Court is considered opinion that the same may be treated as sufficient cause, which prevented the applicant to approach this Court within the period of limitation from the date of death of the petitioner for setting aside the abatement.

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9. Hence, this Interlocutory Application is allowed and the delay of 38 days in preferring the application for setting aside the abatement and filing application for substitution of legal heir is hereby condoned.

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10. This Interlocutory Application is accordingly, disposed of.

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JUDGE

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Comparing Assistant

On the Death of Raichand Bararia His Legal Heirs Laxmi Bararia and 3 Ors. v. M/S. Kishorilal Vijay Kumar H.U.F. and Anr.

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On the Death of Raichand Bararia His Legal Heirs Laxmi Bararia and 3 Ors. v. M/S. Kishorilal Vijay Kumar H.U.F. and Anr.

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