CO/1513/2025 of ARUNANGSHU CHATTERJEE AND ORS Vs SHYAMALI MONDAL AND ORS on 22 September 2026

A. 1832 22.09.2026 Court No.6 BP C.O. 1513 of 2025

Sri Arunangshu Chatterjee & Ors. -versus- Shyamali Mondal & Ors.

Mr. Sarbananda Sanyal Mr. Samrat Chakraborty ..for the petitioners

Mr. Amitabha Ghosh Ms. Arpita Paul Biswas Mr. Budhadeb Chatterjee ..for the opposite parties

This application under Article of the Constitution of India is at the instance of the plaintiffs and is directed against an order dated 21st February, 2025 passed by the learned Civil Judge (Junior Division), 2nd Court, Serampore, Hooghly in Title Suit No. 352 of 2021. By the order impugned the application under Order 22 Rule 3 of the Code of Civil Procedure stood rejected. Mr. Sanyal, learned advocate appearing for the petitioners submits that initially an application for substitution was filed within the stipulated time limit and such application was rejected as it did not contain any schedule with a liberty to the petitioners to file a fresh application. He submits that pursuant to the liberty granted by the learned trial judge the subsequent application has been filed which stood rejected by the impugned order.

The learned advocate appearing for the opposite parties submits that abatement is automatic. He submits that since the application for substitution was not filed within the stipulated time frame of ninety days from the date of death the suit abated. He further submits that no prayer for setting aside the abatement was made and the learned trial judge was right in rejecting the said application. Heard the learned advocates for the parties and perused the materials placed. Record reveals that the plaintiff no.12 died intestate on 12th August, 2023 and the first application for substitution was filed on 30th September, 2023 i.e. within the statutory time limit. By an order dated 22nd November, 2023, the learned trial judge rejected the said application on the ground that such application is a defective one as it does not contain any schedule with a liberty to the petitioners to file a fresh application. Pursuant to the liberty the instant application has been filed. In the meantime the statutory period of limitation for filing substitution application stood expired. It is well settled that abatement is automatic and does not require any order to be passed by the court. Granting liberty to the petitioner to file fresh application also could not have stopped the limitation period from running. But grant of such liberty and the subsequent conduct of the petitioner may be a ground for setting aside abatement.

The Hon’ble Supreme Court in Mithailal Dalsangar Singh & Ors. Vs. Annabai Devram Kini & Ors. reported at 2003 (10) SCC 691 after noting the well settled proposition of law i.e. abatement is automatic and does not depend upon recording of such fact held that a prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Considering the fact that the initial application was filed within the statutory time limit but the same was rejected on technical grounds with liberty to file afresh and thereafter the instant application was filed with a prayer for substitution, this Court is of the considered view that the relief for setting aside abatement is implied. For such reason, the impugned order is set aside. The abatement upon the death of the plaintiff no.12 stands set aside. The heirs and heiresses of the deceased plaintiff no.12 as specifically stated in the impugned application be substituted in place and stead of the deceased plaintiff no.12. The learned trial judge is directed to pass consequential orders pursuant to this order. C.O. 1513 of 2025 stand allowed. There shall be, however, no order as to costs.

Urgent certified photocopy of this order, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.

(Hiranmay Bhattacharyya, J.)