1. Heard Mr. A.C. Sarma, learned counsel for the petitioner.

2. None appears for the respondent despite the names of five counsel being shown in the cause-list.

3. This application under Article 227 of the Constitution of India is filed against the orders dated 5.1.2017 passed by the learned Civil Judge No. 2, Kamrup (M), Guwahati in Misc. (J) Case No. 757/2016 and Misc. (J) Case No. 758/2016 arising out of Title Suit No. 231/2010, whereby the learned court below had rejected a petition under Order 22 Rule 4 (1) read with 151 CPC for substitution of defendant No. 3 (Petition No. 5103), a petition under Section 5 of the Indian Limitation Act, 1963, for short, the Limitation Act to condone the delay in filing the petition for substitution and the petition for setting aside abatement (Petition No. 5105) and a petition under Order 22 Rule 4 (5b) read with Section 151 CPC for setting aside abatement (Petition 5104).

4. Petition Nos. 5103 and 5105 were rejected by order passed in Misc. (J) Case No. 757/2016 and Petition No. 5104 in Misc. (J) Case No. 758/2016.

5. When the plaintiff was cross-examined on 1.11.2016 by the counsel of defendant No. 4, it appears that a question was put to him as to whether he knew about the death of Jogen Ch. Gogoi, who was arrayed as defendant No. 3 in the suit. In response to the said question, the plaintiff stated that he did not know whether Jogen Ch. Gogoi had expired. As the further cross-examination on that day was reserved, the plaintiff made enquiries to find out as to whether the defendant No. 3 had really expired and during the course of enquiry, he came to learn that defendant No. 3 had expired in the year 2014. Though he could not find out the actual date of death, he could, however, find out that Jogen Ch. Gogoi had left behind his wife, Smt. Pallabi Gogoi and son, Dolon Ch. Gogoi. The plaintiff wanted them to be substituted.

6. Mr. Sarma submits that the death of defendant No. 3 was not informed by the counsel of defendant No. 3 and he had also stopped appearing in the suit. It is also submitted by Mr. Sarma that going by the question put to the plaintiff, it appears that defendant No. 4 was aware of the death of defendant No. 3 but he had also not apprised the court about the death of defendant No. 3. He has submitted that no objections were filed to the aforesaid petitions. He has contended that when the case of the plaintiff is that he was totally ignorant of the date about death of defendant No. 3, and when in spite of due enquiry he could not find out the date of death of defendant No. 3 but could only get the year of death, failure to give the exact date of death of defendant No. 3 will not be of any consequence.

7. While disposing of Misc. (J) Case No. 757/16, the court below observed that without setting aside abatement, substitution of legal representatives is not tenable and accordingly, petition No. 5103 was rejected. Without any further deliberation, the Petition No. 5105 was also rejected. While rejecting the petition for setting aside abatement, the learned trial court erroneously held that the petitioner has not filed any petition under Section 5 of the Limitation Act while preferring Petition No. 5104/16.

8. Under Article 120 of the Schedule of the Limitation Act, the period of limitation to have the legal representatives of a deceased plaintiff or of an appellant or of a deceased defendant or of a respondent, is 90 days from the date of death of the plaintiff, appellant, defendant or respondent, as the case may be. To set aside abatement, the period of limitation under Article 121 of the Schedule of the Act is 60 days from the date of abatement. If the application for substitution comes to be filed beyond the period of 150 days from the date of death of plaintiff, appellant, defendant or respondent, as the case may be, then, apart from a petition for setting aside abatement, a petition under Section 5 of the Limitation Act will have to be filed for condonation