Ujjwal Kumar Bit @ Ujjawal Bit, S/o Late Panchanan Bit vs Subodh Kumar Das, S/o Late Hari Mohan Das

Gautam Kumar Choudhary, J

Vakalatnama has already been filed on behalf of opposite party nos.2 – 7.

So far opposite party no.1 is concerned, notice has received by his daughter-in-law. Notice is accordingly declared to be validly served on opposite party no.1, who has not appeared despite service of notice, therefore the instant CMP will be heard ex-parte against the O.P. No.1.

Petitioner is the defendant and instant civil miscellaneous petition has been filed for quashing the order dated 14.05.2024 passed in Title (Partition) Suit No.06 of 2015 whereby and whereunder, the petition under Order XXII Rules 2 and 4(i) of the CPC along with petition under Section 5 of the Limitation Act has been allowed.

It is argued by the learned counsel on behalf of petitioner that notices were issued in the suit and pursuant to it, defendants entered into appearance and file their written statement. The suit was dismissed for default on 28.01.2019 as no step was taken on behalf of the plaintiff for six consecutive dates.

After the suit was dismissed for default, one of the plaintiffs namely Uttam Kumar Das died on 25..08.2021 and original defendant no.1 Panchanan Bit died in early 2021 leaving behind his four sons and two daughters.

As death had taken place, before the restoration of the partition suit, therefore, the substitution petition was filed and allowed only after the restoration of the suit.

The main grievance of the petitioner is that, substitution petition has been allowed, condoning the delay and without any specific prayer for setting aside abatement without service of notice to the petitioner or any of the surviving defendants vide impugned order.

On perusal of the impugned order, it appears that reason for substitution has been assigned in para 8 which is as under: -

“Perused the record. It transpires that this record was dismissed on 28.01.2019 and thereafter the same was restored on 30.11.2023. The Ld. counsel for the plaintiffs submitted that plaintiff no.2 Uttam Kumar Das, who was suffering from serious illness, expired on 25.08.2021 leaving behind his widow Meera Das and two sons namely Abhijit Das and Kanchan Das. And due to Covid 19, the civil court works were almost closed since 23.03.2020 to 24.01.2022. That after the restoration of the suit in its original file, it has become necessary to substitute the name of the deceased plaintiff Uttam Kumar Das. That similarly the defendant Panchanan Bit also expired as early 2021 leaving his four sons namely Binay Bit, Kajal Bit, Khokan Bit and Ujjwal Bit and two daughters namely Nimita Das and Rekha Das both the daughters have been married and their husbands’ address is not known to the plaintiff no.1. That the abovementioned legal heirs of deceased plaintiff and the deceased defendant are the legal representatives and also legal heirs of them. That the right to sue still survives. The plaintiff also filed the petition under Section 5 to condone the delay caused.”

The facts are not in dispute that one of the plaintiffs namely Uttam Kumar Das died on 25.08.2021 and original defendant no. 1-Panchanan Bit also died in the same year. It is also not in dispute that Original Partition Suit No. 06/2015 was dismissed for default on 28.01.2019 and was restored to its file on 30.11.2023. Meaning thereby, the death of both plaintiff- Uttam Kumar Das and defendant- Panchanan Bit took place during the period when the partition suit was in hibernation because of being dismissed for default.

From the submissions advanced on behalf of the both sides, it is apparent that suit was restored on 30.11.2023 whereas, the substitution petition was filed on 26.04.2024 that is after 147 days of the restoration of the partition suit.

The time prescribed for substitution in Article 121 of the Limitation act is 90 days. Further Article 121 prescribe a period of 60 days for setting aside an abatement. It is therefore manifest that if steps are not taken for substitution within 90 days after the death, the suit or appeal shall stand abated. What follows is that when an application for setting aside abatement is filed within 150 days from the death of the party, it cannot be said to have been filed after the statutory period of limitation.

In the peculiar facts and circumstance of the case, since the death took place when the suit was dismissed for default, the substitution petition could be filed only after its restoration, therefore delay cannot be computed from the date of death, rather it is to be computed from the date of restoration of the suit. Although the suit can be said to have abated 90 days of its restoration, but application for substitution cannot be said to be barred by limitation. Merely because a separate petition for setting aside of abatement under Order 22 Rule 9 CPC had not been filed, the impugned order allowing the substitution petition cannot be said to be suffering from any gross illegality, to warrant interference by this court in exercise of its extraordinary jurisdiction under Article 227 of the Constitution of India. This is more for the reason that substitution petition has been filed within 150 days of restoration of suit.

As such, I do not find any infirmity in the impugned order. Accordingly, the instant Civil Miscellaneous Petition stands dismissed. Pending I.A., if any, stands disposed of.