I.A.(Civil)/450/2025 of JUNIL BORO Vs ON THE DEATH OF RADHA BASUMATARY on 15 March 2026

ORDER

16.03.2026 Heard Mr. A. Biswas, learned counsel for the applicant/appellant. Also heard Mr. A. Deka, learned counsel appearing for the respondent Nos. 1 and 2, as well as Ms. D. D. Barman, learned counsel for the respondent Nos. 4 and 5. It is pertinent to note that during the pendency of the connected Regular Second Appeal, the respondent No. 3 expired. The present interlocutory application has been filed seeking condonation of delay of 972 days that occurred in filing the connected application under Order XXII Rule 4(1) read with Section 151 of the Code of Civil Procedure, 1908, in RSA No. 3/2021, for bringing on record the legal heirs of the deceased respondent No. 3, namely Radha Basumatary. Mr. Biswas, learned counsel for the applicant/appellant, submits that the delay occurred because the brief of the applicant/appellant was initially handled by another set of counsel. According to him, after the present counsel entered appearance, he was given the impression that the substitution application for bringing on record the legal heirs of the deceased respondent No. 3 had already been filed by the earlier counsel. It was only subsequently that he discovered that no such application had been filed and accordingly the substitution application, along with the present application for condonation of delay, came to be filed belatedly. Per contra, Mr. A. Deka, learned counsel for the respondent Nos. 1 and 2, vehemently opposing the prayer for condonation of delay, submits that on 08.11.2024 the present counsel appearing for the applicant/appellant before the Second Appellate Court was fully aware that no substitution application had been filed for bringing on record the legal representatives of the deceased respondent No. 3. Despite such knowledge, no steps were taken until 11.02.2025, on which date the substitution application along with the present condonation application was ultimately filed. It is therefore contended that the applicant/appellant having failed to pursue the matter with due diligence, the discretionary relief of condonation ought not to be granted. Having heard the learned counsels for the parties and upon perusal of the materials available on record, it appears that during the pendency of the Regular Second Appeal the respondent No. 3 expired and the legal representatives of the deceased respondent were required to be brought on record in accordance with law. The records further reveal that the applicant/appellant was initially represented by another set of counsel and the present counsel entered appearance subsequently. The plea taken is that the present counsel was under the impression that the substitution application had already been filed earlier.

However, it is evident from the record that the said position was brought to the notice of the present counsel on 08.11.2024 pursuant to an office note dated 05.11.2024, indicating that no substitution application had been filed. The said fact is also recorded in the order of this Court dated 08.12.2024, which reads as under: “The Office note dated 05.11.2024 indicates that there was a direction for substitution of the legal representative of respondent No. 3 who had already suffered demise, but no steps have been taken by the appellant till date.” Thus, from 08.11.2024 onwards, the applicant/appellant was clearly aware that the substitution application had not been filed and that necessary steps were required to be taken. In such circumstances, it was incumbent upon the applicant/appellant to act with promptitude and take immediate steps for filing the substitution application. Significantly, the application seeking condonation of delay is completely silent as regards the period between 08.11.2024 and 11.02.2025, i.e., the date on which the substitution application along with the present application for condonation of delay was ultimately filed. There is no explanation whatsoever accounting for this period of inaction. It is well settled that while considering an application for condonation of delay, the length of delay is not decisive, but the sufficiency and credibility of the explanation offered is the determining factor.

In Esha Bhattacharjee -Vs- Managing Committee of

Raghunathpur Nafar Academy & Ors., reported in (2013) 12 SCC 649, the Apex Court laid down guiding principles governing condonation of delay and emphasised that courts must ensure that the concept of liberal approach does not become a license for negligent or indolent litigants. Applying the aforesaid principles to the facts of the present case, the explanation offered by the applicant/appellant does not inspire confidence. Even after being made aware on 08.11.2024 that no substitution application had been filed, the applicant/appellant failed to take any steps for a considerable period thereafter. The absence of any explanation for such inaction clearly reflects a lack of due diligence. In the considered opinion of this Court, the applicant/appellant has failed to demonstrate sufficient cause warranting the exercise of discretionary jurisdiction for condonation of delay. Accordingly, this Court is not inclined to exercise its discretion in favour of the applicant/appellant. The present interlocutory application accordingly stands dismissed.

JUDGE Comparing Assistant