IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1862 of 2007 DASHRATH PRASAD @ DASHRATH MAHTO & ORS Versus RAM SWAROOP THAKUR & ORS ----------- 2 15.07.2008 Heard counsel for the petitionerS and counsel for the opposite parties. The petitioner is aggrieved by an order dated 2.8.2007 whereby and whereunder the Court below while rejecting the application dated 18.2.2006 and 18.01.2007 regarding substitution of heirs of defendant No.4 has passed an order that there was no sufficient explanation for the delay caused in filing of such substitution applications and consequently the suit itself has been held to have abated. Sri Ram Kumar Sharma, learned counsel appearing on behalf of the petitioner has submitted before this Court that as a matter of fact there was some confusion in the office of the counsel inasmuch as the notices regarding information of death was given in the office of Counsel in time but some how the office clerk could not bring this fact to the notice of the counsel and eventually the same was disclosed by the petitioner to the 2 counsel after considerable lapse of time. He also submits that these facts were stated at length in the application seeking substitution and therefore, the Court below ought to have not been adopted a technical and pedantic approach by insisting for filing under Section 5 of the Limitation Act. On the other hand, counsel appearing on behalf the opposite party Nos. 1, 2 and 3 the substituted heirs, has vehemently opposed the said submission of Sri Sharma. He submits that the petitioners had full knowledge of the date of death and yet they had chosen to file an application for substitution after lapse of ninety days. He also refers to certain facts, mentioned in the civil Revision application itself and on that basis it is submitted that the Court below was wholly justified in passing the impugned order refusing to substitute the legal heirs on the ground of limitation. Having heard counsel for the parties this Court is of the view that as the grounds for explaining delay is attributable partly to the counsel for the parties inasmuch as it had something to do in the office of the counsel, this 3 Court taking into consideration the ends of justice, which would require their every case must be disposed of on merit, would allow the prayer for substitution of the defendant No.4, after condoning the delay and setting aside the abatement. The impugned order is accordingly set aside. Considering the fact that the opposite party Nos. 1,2 and 3 have been unnecessarily harassed in this matter for last two years, this Court would, however, impose a cost of Rs. 5000/- to be paid by the petitioners to the opposite party Nos.1, 2 and 3 within a period of one month from the date of receipt/production of a copy of this order and upon making such payment, the Court below would proceed to decide the case on merit. With the aforesaid observations and directions, this Civil Revision Application is allowed to the extent indicated above. BCJ (Mihir Kumar Jha, J.)