IMPORTANT POINT
Substitution and abatement of suit/appeal – Limitation – Any lapse on part of a litigant should be construed within a broader framework of facts and law so that litigant is not ousted from Courts.

ORDER (COMMON)

Moushumi Bhattacharya, J.—The legal representatives of the deceased plaintiff No.8 (respondent No.8 in C.C.C.A.No.70 of 2018) have filed the present Interlocutory Application for condonation of delay of 992 days in bringing the said legal representatives on record and for setting aside the abatement caused due to the death of the respondent No.8. The applicants also seek permission to come on record as the legal representatives of the deceased respondent No.8.

2. The issue before us is whether the applicants/legal representatives of the respondent No.8 can be brought on record as the respondent Nos.16-19 upon setting aside the abatement of the Appeal as against the respondent No.8 (plaintiff No.8 in the Suit).

3. The admitted facts and dates are as follows:

3.1 The plaintiff Nos.1-8 (respondent Nos.1-8 in the appeal) filed Original Suit (O.S.No.557 of 2006) for eviction of the defendant Nos.2 to 4 from the suit schedule property and for delivery of possession of the suit schedule property to the plaintiffs and defendant No.1 as per their respective shares. The plaintiff Nos.1-8 also sought for recovery of Rs.2,04,500/- against the defendant Nos.2 to 4 towards arrears of rent and for recovery of damages of Rs.37,55,193/- for illegal occupation of the plaint schedule property for 35 months till the end of September, 2006 and for future profits and costs. The suit was decreed by the impugned judgment dated 29.12.2017 directing the defendant Nos.2 and 3 to deliver possession of the plaint schedule property to the plaintiffs and the defendant No.1 within two months from the date of the judgment failing which the plaintiffs and the defendant No.1 would be entitled to obtain possession through the process of the Court. The defendants preferred the present C.C.C.A.No.70 of 2018 against the said impugned judgment.

4. The defendants filed I.A.No.1 of 2018 which was allowed on 22.10.2018 by granting interim stay of execution of the decree of possession subject to deposit of 50% of the decretal amount.

5. The plaintiff No.8/respondent No.8 in the appeal passed away on 02.02.2019. The aforesaid fact was brought to the notice of the Court through a Memo dated 30.04.2019. The appeal stood abated as against the respondent No.8 on 04.05.2019 and the time period for filing the application for setting aside the abatement expired on 03.07.2019. The applicants/legal representatives of the respondent No.8 filed the 3 I.As on 20.03.2024 for the reliefs which have been stated above.

6. Two facts are clear from the above sequence of events - as also brought to the notice of the Court on behalf of the legal representatives of the respondent No.8. First, the respondent No.8 died after passing of the impugned decree and after filing of the appeal from the impugned judgment. Second, the appeal stood abated as against the respondent No.8 on 04.05.2019. Third, the limitation for filing the application for setting aside the abatement expired on 03.07.2019.

7. The specific dates mentioned above would be clear from Order XXII of The Code of Civil Procedure, 1908 (C.P.C.) along with The Limitation Act, 1963.

8. Order XXII provides for survival of a Suit notwithstanding death, marriage and insolvency of parties. The effort to save the Suit would be clear from Order XXII Rule 1 of the C.P.C., which declares that the death of a plaintiff or defendant shall not cause the Suit to abate if the right to sue survives. Order XXII Rule 2 of the C.P.C. provides for the procedure where the right to sue survives to the surviving plaintiff/s or against the surviving defendant/s and the suit proceeds at the instance of the surviving plaintiff/s or against the surviving defendant/s. Order XXII Rule 3 of the C.P.C, which is relevant to the facts of the present case, provides for the procedure in case of death of one of several plaintiffs or of the sole plaintiff.

9. As stated above, the plaintiff No.8 (respondent No.8) in the Appeal died after pronouncement of th