IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4359 of 2002 Shankar Prasad Choudhary son of Late Asharfi Lal Choudhary Resident of village and Police Station-Tikapatti, District-Purnea ……….Petitioner. 1. The State of Bihar. 2. The Sub Divisional Officer at Dhamdaha within the district of Purnea. 3. The Anchal Adhikari, Rupouli, within the District of Purnea. 4. Shri Hakru Paswan, son of Late Bouku Paswan. ..Respondents. Versus ----------- 3 21.01.2009 An interlocutory application bearing I.A.No. 6076 of 2008 has been filed stating therein that the sole petitioner namely, Shankar Prasad Choudhary had died on 18.09.2005 leaving behind his legal representatives as mentioned in paragraph 2 of the petition. It has further been stated in paragraph 3 of the petition that after the death of the sole petitioner, instructions were given to the counsel Sri Raghavendra Singh, who was appearing on behalf of the petitioner to take steps for substitution of the legal representative, but unfortunately the counsel suddenly died and the heirs of the deceased petitioner were under the impression that steps for substitution has been taken, but later on, on enquiry having found that no such step has been taken, the present application has been filed. Copy of the above interlocutory application was served on the counsel for the State, however copy of the same has been served today on the counsels appearing - 2 - for the respondent no.4. Upon considering the submissions of the petitioner and also the submissions made on behalf of the respondent no.4 and the State, this interlocutory application is allowed and the name of the legal representative of the deceased petitioner, as mentioned in paragraph 2 of the petition, is substituted in place of the deceased petitioner. The name of the deceased petitioner Shankar Prasad Choudhary be expunged from the record. Heard learned counsel for the petitioner, Respondent No. 4 and the State. The petitioner challenges the order dated 7. 3. 2002, passed by Respondent No. 2, in Appeal No.9 of 2001, arising out of proceeding under Section 48 D of the Bihar Tenancy Act. It is submitted on behalf of the petitioner that the appeal was dismissed on the point of limitation alone even though the Appellate Court has taken notice of the merit of the matter. Learned counsel submits that Respondent No.2 while considering the limitation matter did not consider the application filed by the petitioner for condoning the delay in filing the appeal. It is submitted that order of appeal dated 7. 8. 2001, passed by Respondent No. 3, - 3 - against which an appeal was filed on 8. 12. 2001. On the application filed for condonation of delay in filing the appeal, it was stated that the petitioner learnt about the order dated 7. 8. 2001, on 30th November, 2001. However, inadvertence it was also stated that he applied for certified copy of order under appeal dated 1. 11. 2001, and as such taken into such inconsistency, the condonation application was not accepted and appeal was dismissed being barred by limitation. Learned counsel submits that as a matter of fact, the petitioner on getting knowledge of the order dated 7. 8. 2001 on 30th Novermber, 2001, applied for certified copy of order on 1. 12. 2001, which was also stated in his Memo of Appeal filed before Respondent No. 2. However, taken minor typographical error, limitation petition was dismissed and consequently the appeal was also dismissed. In the above circumstances, it is prayed for, order dated 7. 3. 2002, as contained in Annexure-7 dismissing the appeal filed by the petitioner on the ground of limitation be quashed. It is also submitted that petitioner without having any knowledge filed an appeal after expiry of about four months, even though he had appeared before the original authority (Respondent NO.3) before whom proceeding under Section 48 D of the B.T. - 4 - Act was initiated and as such for the own inaction of the petitioner he can not take advantage. Upon considering the submissions of the parties and the averments made in the writ petition as well as supplementary affidavit annexing copy of order dated 7. 8. 2001, which was subject matter of appeal, it appear that application for obtaining certified copy of order dated 7. 8. 2001, was made on 1. 12. 2001 and it was ready and delivered on 6. 12. 2001. Considering the above submissions, in my opinion, it is expedient in the interest of justice that the question of limitation in filing the appeal be considered afresh by Respondent No. 2 in accordance with law. Consequently, order dated 7. 3. 2002, as contained in Annexure-7, be quashed and the matter is remitted back to Respondent No.2, for hearing the appeal in admission after considering the limitation matter in accordance with law. Accordingly, this writ application is disposed of with above direction/observation. m.p. (Shailesh Kumar Sinha, J.)