Case No: Civil Petition for leave to Appeal No. 932 of 2004
Judge: Mohammad Fazlul Karim ,
Court: Appellate Division ,,
Advocate: Md. Khurshid Alam Khan,,
Citation: 12 MLR (AD) (2007) 14
Case Year: 2007
Appellant: Hazi Habibur Rahman
Respondent: Ayub Ali Sawdagar
Subject: Limitation, Procedural Law,
Delivery Date: 2006-1-15
Md. Ruhul Amin J
Mohammad Fazlul Karim J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Amirul Kabir Chowdhury J
Hazi Habibur Rahman @ Hazi Md. Habibur Rahman
Ayub Ali Sawdagar being dead his heirs Most Kamrun Nahar and others
January 15, 2006.
The Limitation Act, 1908 (IX of 1908)
The Code of Civil Procedure, 1908 (V of 1908)
Order XXII, rule (2)
Substitution of heirs where the right to sue survives after death either of the plaintiff or of the defendant, even though the period of limitation expires for such substitution, application under section 5 of the Limitation Act, 1908 showing sufficient cause of delay in making substitution is entertainable. Intention of the legislation is disposal of a suit on contest but not to deprive the parties on technicalities. In certain cases, filing of an application for condonation of delay may be waived as a mere formality for securing the ends of justice………………………..(5 & 6)
Md. Khurshid Alam Khan, Advocate, instructed by A.S.M. Khalequzzaman, Advocate-on-Record- For the Petitioner.
Not represented- the Respondents.
Civil Petition for leave to Appeal No. 932 of 2004 .
(From the judgment and order dated 24th April 2004 passed by the High Court Division in Appeal from Original Decree No. 308 of 2001).
Mohammad Fazlul Karim J.
The petitioner seeks leave to appeal against the judgment and order dated 24.04.2004 passed by a Division Bench of the High Court Division in Appeal from Original Decree No. 308 of 2001 allowing an application for substitution after setting aside abatement.
2. In a suit for declaration of title, upon contest the suit was decreed and during pendency of the appeal on 13.4.2002 a copy of an application for substitution after setting aside abatement was served upon the respondent No.2, petitioner, for substitution of the heirs of the deceased sole appellant Ayub Ali Sawdagar stating, inter alia, that during pendency of the said appeal i.e. First Appeal No.308 of 2001 the sole plaintiff-appellant died intestate on 28.7.2002 leaving behind the applicants, the respondent No. 1(a) to 1(g) herein, as his legal heirs to inherit the property left by him. That it was further stated that respondent No.1 (a) to 1(g) were not aware of proceeding of any appeal filed by their predecessor and the learned Advocate for the deceased-appellant also was not aware of the death of the appellant and as such it was not possible for him to take any step for substitution of the respondent No. 1(a) to 1(g) in place of deceased appellant Ayub Ali Sawdagar and consequently the appeal abated for non-substitution of the respondent No. 1(a) to 1(g) within the period of limitation.
3. The High Court Division upon hearing the said application allowed the same setting aside the abatement and substituting the applicants in place of deceased appellant Md. Ayub Ali upon condonation of delay of 615 days.
4. Mr. Md. Khurshid Alam Khan, the learned Advocate appearing for the petitioner submitted that the limitation for impleading legal representative of a deceased party begins to run from the date of death of the party and not from the date of knowledge of the appeal and that where the applicants stated that they had no knowledge regarding the instant appeal the Court ought not have believed the mere statement without any proof in the circumstances and as such the High Court Division committed wrong in allowing the application for substitution in the absence of sufficient explanation for condonation of delay.
5. Order XXII Rule 9(2) of the Code of Civil Procedure provides for substitution of the heirs where the right to sue survive after the death either of the plaintiff or the defendant and though the period of limitation has been prescribed for substitution of the heirs of the deceased plaintiff or defendant but thereafter as well provision has been made for substitution of the heirs of the deceased after setting aside the abatement and more so, the legislature in its wisdom has provided for application of section 5 of the Limitation Act showing sufficient cause in case of delay in making substitution within the period of limitation which necessarily implies that the legislature intended for disposal of a suit on contest and not to deprive the parties of a decision on technicalities where right to sue survives even after the death of one of the parties in the suit.
6. In view of the above, if the Court has considered that the parties were prevented by sufficient cause from substituting the heirs of the deceased, even in certain cases the filing of an application for condonation of delay may be waived as a mere formality for securing ends of justice, the order allowing prayer for substitution is quite sustainable in law.
7. In the premises above, even in the absence of the application under section 5 of the Limitation Act for condonation of delay in filing an application for the purpose, if the Court is satisfied from the materials on record including the application for substitution after setting aside the abatement, the Court could set aside the abatement and allow substitution accordingly.
In the result, we do not find any substance in the submission of the learned Advocate for the petitioner.
The petition is dismissed.