IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.524 of 1998 1. ASHOK PASWAN @ ASHOK KUMAR PASWAN 2. PRADEEP PASWAN @ PRADEEP KR. PASWAN 3. SURENDRA KUMAR @ SURENDRA PASWAN. 4. HARISH CHANDRA PASWAN @ HARENDRA KUMAR --APPELLANTS Versus 1. BISHESHWAR THAKUR 2. YUGESHWAR THAKUR 3. DHANESHWAR THAKUR 4. SAVITRI DEVI 5. BIJAY KUMAR THAKUR 6. UDAY KUMAR THAKUR 7. AJIT KUMAR THAKUR 8. MINA KUMARI 9. UNNI KUMARI 10. DAIJEE DEVI 11. RAJ KUMARI DEVI 12. BINDA DEVI --RESPONDENTS FOR THE APPELLANTS : M/S R.C. THAKUR & KAMAL KISHORE SINGH FOR THE RESAPONDENTS: Mr ANIL KUMAR JHA 10 16.07.2010 Heard learned counsel for the appellants and respondents. This appeal has been preferred against the order dated 17th August, 1998 passed by 2nd Additional District Judge, Darbhanga, dismissing Title Appeal no.10 of 1989 as 2 abated. Admittedly, one Sarjug Thakur was solitary respondent in the appeal before lower appellate court preferred by the appellants. Said Sarjug Thakur died on 12th November, 1994 leaving his sons and daughters but petition for substitution was filed on 20th June, 1996. In the meantime, on 25th August, 1995 one petition was filed by learned counsel representing deceased respondent stating death of his client but neither copy of the petition was served upon counsel representing appellants nor anything appears in order sheet of the Court as regards the death of respondent except filing of one petition by lawyer of respondent. The appellants filed a petition stating that in the month of November, 1994 they were not at village, gone outside in connection with marriage negotiation of the brother, came back in December, 1994, and at no point of time they could know earlier about the death of respondent. However, on 01st June, 1996 it came into his knowledge and thereafter, after consulting the lawyer, petition was filed seeking substitution of the heirs after setting aside abatement and to condone the delay separate petition was also filed. It 3 was also stated that, in fact, the respondent was not attending the Court rather it was his son, Bisheshwar Thakur, was making pairvi but at no point of time any information was given about death of his father so appellants could not take steps in time. As it appears, notice was issued to the proposed respondents and vide order dated 15th January, 1998 parties were directed to adduce evidence. On behalf of the appellants altogether three witnesses, namely, Nagender Paswan, Asharfi Paswan and Pradeep Paswan were examined. On behalf of the respondents five witnesses, namely, Awadh Sahni, Lallan Chaudhary, Md. Masoom Khan, Kamal Narain chaudhary and Ramcharan Thakur @ Bhuneshwar Thakur were examined. After hearing the parties and meticulous examination of materials available, court below refused to set aside the abatement and dismissed the appeal giving rise to present appeal before this Court. Learned counsel for the appellants vehemently contended that the court below has not properly appreciated the evidence on record, on meticulous examination as of criminal trial, refused the prayer. It is acepted that learned 4 counsel appearing on behalf of the respondents though filed a petition but no copy was served upon counsel representing the appellant nor there is anything in the order sheet. But court also has taken it adverse to the appellants that in the petition it has been mentioned that on 01st June, 1996 the appellants could come to know about the death of respondent. The petition was typed on 14th June, 1996 but filed on 20th June, 1996 so appellants were presumed reluctant. On the other hand, learned counsel for the respondents, on the grounds mentioned in the order, supported the order under challenge. As it appears from the order of the court below that he has appreciated the oral evidence, it appears that it has been considered like a criminal trial for serious offences. No doubt, the parties hail from one common village but the appellants were not there at relevant time. It is undisputed that majority of them are in service residing out of the village. Moreover, the person having control of the appeal on behalf of their brothers, as stated, was not aware of death of a co-villager. It is also true that on behalf of the deceased respondent one petition was filed by his counsel stating his 5 death with an endorsement on it that “I am told that other side is not available, hence copies attached herewith”. Had the counsel representing the appellants been informed by serving copy of the said petition, position could have been different but further more since Presiding Officer of the Court was on casual leave order sheet of the day also appears to have been written in perfunctory manner. Nowhere it is mentioned in the order that the learned counsel, by filing petition has informed about death of respondent. It is also to be noticed that appellants in their petition has said that on 01st June, 1996 they could know about the death of respondent no.6. The petition for substitution was no doubt appears to have been typed on 14th June, 1996, that is, the first date fixed in the appeal after third alleged date of knowledge. Possibility of time consumed in drafting and typing of the petition might have crossed the court hours and petition was filed on very next date fixed, that is, 20th June, 1996. Again meticulous examination regarding day to day affair is not at all required in such type of matters. Normally, the litigants are not aware of all the procedure so when serious matters involving substantial 6 question of fact and law involving land are there the litigants must not be denied final adjudication on merit for some technical ground such as abatement etc. unless and until there is intentional and inordinate delay after full knowledge. It is true that there is about one year delay caused by the appellants in taking due steps for substitution of sole respondent but only for that delay they cannot be denied of their right of getting the controversy finally adjudicated upon. However, they are liable to compensate the heirs of deceased respondent in terms of money. In the facts and circumstances of the case, the impugned order is hereby set aside. The appeal is allowed subject to payment of cost of Rs.2,000/- which is to be paid to the heirs of deceased respondent on or before 17th August, 2010 in the lower court. Learned counsels assures that parties shall appear on 17th August, 2010 in the court concerned and they shall also co-operate in early disposal of the appeal on merit. The Court below is directed to proceed expeditiously and thereafter dispose of the appeal preferably within four months of the communication of this order by any means. Office is directed to transmit the records of lower appellate 7 court along with copy of this order, in the meantime, so that it must reach there before 17th August, 2010. (Akhilesh Chandra, J.) AAhmad