HISSAM UD DIN vs Mst. FAIZAN And 7 Other
The petitioner seeks leave to appeal against the judgment of the Appeal Bench of the High Court, which dismissed the application for setting aside the abatement caused by the death of Mahmood Ali and for bringing on record his legal representatives. The core legal question concerns whether the assumption that the petitioner resided in the same premises and was thus aware of the co-occupant's death justified dismissing the application as abated, despite a death certificate showing the death occurred in a different locality. The Supreme Court held that the High Court's assumption and conclusion were not supportable under these circumstances, rendering it a fit case for granting leave to appeal. The key principle laid down is that factual assumptions regarding a party's knowledge of a co-party's death must be tested against documentary evidence such as death certificates indicating different places of residence before denying relief against abatement.
- Whether an application for setting aside abatement can be dismissed on the assumption of shared residence when evidence indicates a different place of death?
- Is a case where lower appellate assumptions regarding knowledge of a party's death are unsupported by evidence a fit case for grant of leave to appeal?
ORDER
1. SHAFIUR RAHMAN, J. --The petitioner seeks leave to appeal against the judgment of the Appeal Bench of the High Court dated 25-10-1976 whereby the application filed by the petitioner for setting aside the abatement on account of the death of Mahmood Ali on 23-1-1971 and bringing on record his legal representatives, was dismissed as abated.
2. The learned counsel contended that the impugned order of the High Court proceeds on the assumption that Mahmood Ali was residing in the same premises which were in dispute and where the petitioner, was also residing. If this had been the case, the conclusion drawn by the learned Judge of the High Court would have been sustainable for the petitioner would not have remained unaware of the death of the co-occupant of the premises. However, it is contended that according to the death certificate filed by the petitioner before the Appeal Bench, it was clear that the death of Mahmood Ali had taken place in a different locality of the same city. In such a situation, neither the assumption nor the conclusion on which the relief has been denied to the petitioner would be supportable.
3. We consider it to be a fit case for grant of leave to appeal which is hereby granted.
4. Security in the sum of Rs.2,000.
5. The appeal to be heard on the present record with liberty to the parties to file such additional documents as they may consider necessary. Status-quo already ordered to remain in the field.