Full Judgment Text
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PETITIONER:
SHARAFAT HUSSAIN (DEAD) THROUGH LRS & ORS.
Vs.
RESPONDENT:
MOHD. SHAFIQ & ORS.
DATE OF JUDGMENT: 02/09/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We Have heard learned counsel on both sides.
This appeal by special leave arises from the order of
the High Court of Delhi made on July 25, 1995 in CMP
No.534/92 wherein it was held that the appeal had abated and
consequently the same was dismissed.
It is not necessary to dilate upon the facts on merits.
Suffice it to state that pending first appeal in the High
Court, the sole appellant died on December 1, 1990.
Intimation of death was given by the counsel for the
respondents on August 5, 1991, but the application could not
be filed due to the delay on the part of the counsel for the
deceased-appellant as sworn in by him in his affidavit.
Consequently, the appeal having abated was dismissed on
November 18, 1991. Then an application came to be filed on
May 4, 1992 seeking setting aside of the abatement,
condonation of the delay in filing the application and to
bring the legal representatives of the sole appellant on
record. That application came to be dismissed for failure to
give proper explanation. Thus, this appeal by special leave.
The advocate for the deceased-appellant has stated in
his affidavit thus:
"As I did not have with me the
address of the legal heirs of the
appellants even as they lived in
the same house where the deceased
resided in Phatak Habash Khan, I
could not contact or communicate to
them that they had to file an
application for substitution of
heirs within the stipulated time.
It was only on 4.5.1992 that Shri
Mazahar Hussain, one of the legal
representatives of tha deceased,
chanced to meet me in Khari Baoli
that informed him of the appeal
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having been field by his late
father of which he expressed total
ignorance and its abatement."
Consequently, the application came to be filed on May
4, 1992. In view of the statement of the counsel for the
deceased-sole appellant that the delay had occurred since
he could not communicate to the legal representatives of the
information issued by the respondents of the death and that
the legal representatives obviously were not aware of the
appeal in filed by their father; that resulted in abatement
for not bringing the legal representatives on record.
The appeal is allowed. Delay is condoned. Abatement is
set aside. Decay in bringing the legal representatives on
record is condoned. The legal representatives are brought on
record. The High court is requested to dispose of the appeal
as expeditiously as possible. No costs.