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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.