FMAT/287/2025 of PRABIR DUTTA Vs SUBHENDU KR DUTTA AND ORS on 7 September 2026

1. From the affidavit-of-service filed today in Court, we find that the proforma respondents have been duly served. Inasmuch as the principal respondent is concerned, the postal endorsement has been rendered as “unclaimed”, upon intimation being served, which tantamounts to good service.

2. However, none appears for the respondent or the proforma respondents at the time of call.

3. In view of service on the respondent and the proforma respondents having already been effected, we take up the matter in the absence of the respondent and the proforma respondents.

4. CAN 3 of 2026 is an application for leave to prefer the appeal.

5. Learned counsel appearing for the appellant submits that the parties to the present appeal were substituted in the trial court in place and stead of the original parties. However, the same is not reflected in the cause title of the suit as depicted in the certified copy of the impugned order.

6. We find substance in such contention.

7. Accordingly, CAN 3 of 2026 is allowed, thereby granting the appellant leave to prefer the appeal on his behalf as well as against the respondent and the proforma respondents.

8. There will be no order as to costs.

9. While hearing the application for condonation of delay, we find that the appeal itself has been preferred against an order dated November 22, 2017, whereby the learned Trial Judge had merely recorded that the application under Order IX Rule 13 of the Code of Civil Procedure filed by the predecessor-in-interest/father of the appellant had abated, since 90 days had passed after the demise of the said original petitioner.

10. It is well-settled that mere recording of abatement of a legal action is not the dismissal of the same. Rather, such recording of abatement is merely ministerial in nature.

11. The abatement of the miscellaneous case under Order IX Rule 13 happened automatically, by operation of law, after the expiry of the statutory time limit of 90 days from the demise of the original petitioner, and by the impugned order, the learned Trial Judge merely recorded such abatement.

12. Thus, the impugned order is not an appealable one.

13. In any event, the learned Trial Judge, after the abatement, could not have dismissed the miscellaneous case on merits at all.

14. In such view of the matter, we hold that the appeal is not maintainable.

15. Accordingly, CAN 1 of 2025 is dismissed, along with FMAT 287 of 2025 and CAN 2 of 2025, on the ground of being not maintainable.

16. Nothing in this order or the dismissal of the present appeal, however, shall be construed to preclude the appellant from preferring appropriate applications for substitution, for setting aside abatement of the miscellaneous case bearing Miscellaneous Case No.5235 of 2015, as well as an application for condonation of delay in filing the said applications before the Trial Court.

17. If such applications are filed before the learned Trial Judge, the learned Trial Judge shall dispose of those in accordance with law, independently and on

their own merits, without being influenced in any manner on merits by any of the observations made herein.

18. There will be no order as to costs.

19. Urgent Photostat copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.

(Sabyasachi Bhattacharyya, J.)

(Sandip Kumar De, J.)