Advocates:
['SASWATI NAG', '', 'Mr P K DHAR', 'Mr R G CHAKRABORTY', 'Mr A BHAUMIK', '', 'ANKAN TILAK PAUL', 'SWARUPAM SAHA']

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HIGH COURT OF TRIPURA

AGARTALA

CRP No. 51 of 2022

B E F O R E

HON’BLE MR. JUSTICE S.G.CHATTOPADHYAY

For the Petitioner(s)

:

Mr. P.K.Dhar,Sr. Adv.

Mr. R.Debnath, Adv.

For the Respondent(s) :

Mr. A.Bhowmik, Adv.

Mr. S.Dey, Adv.

O R D E R

07.12.2022

[1]

By means of this application filed under Section 115 of

the Code of Civil Procedure, 1908 (CPC for short), petitioners

Dipankar Chakraborty and Smt. Sonali Chakraborty who were

defendant Nos.1 and 3 in Title Suit No.05 of 2021 before the Civil

Judge (Sr.Div.), Court No.1 at Agartala have challenged the

impugned order dated 07.05.2022 passed by the learned Civil

Judge(Sr.Div.),Court No.2, Agartala in case No. CM(J) 137 of 2021.

By the said order, the learned trial judge allowed the petition of the

plaintiff petitioners in T.S.05 of 2021 for substitution of the legal

heirs of deceased respondent No.2 Smt. Sukla Chakraborty, though

such petition was filed on expiry of the period of limitation without

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any separate petition for condonation of delay and without any

petition for setting aside the order of abatement.

[2]

Brief facts of the case are that Smt. Supriya

Chakraborty and 4 others being the plaintiffs instituted a Title Suit

seeking declaration of right, title and interest over the suit land,

recovery of its possession and perpetual injunction. Sri Dipankar

Chakraborty, Smt. Sukla Chakraborty and Smt. Sonali Chakraborty

were impleaded as defendant No. 1, 2 and 3 respectively in the

said Title Suit which was registered as T.S. 05 of 2021. Before the

trial commenced, Smt. Sukla Chakraborty, respondent No.2, died

on 11.04.2021. Since no application for substitution of the

deceased defendant by her legal heirs was filed within the

prescribed period of limitation, the suit stood abated as against

deceased respondent No.2. The plaintiffs moved the trial court by

filing a petition for substitution of the deceased defendant by her

legal heirs beyond the prescribed period of limitation on

23.09.2021. They neither filed any application for condonation of

delay nor a petition for setting aside the abatement order. The trial

court, by the impugned order, allowed substitution of legal heirs of

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the deceased defendant. Hence, the petitioners have challenged

this order by filing this civil revision petition.

[3]

Heard Mr. P.K.Dhar, learned Sr. Advocate appearing

for the petitioner along with Mr. R.Debnath, learned advocate as

well as Mr. A.Bhowmik, learned advocate for the respondents.

[4]

Main ground of challenge to the impugned order is

that the application for substitution of legal heirs was filed beyond

the prescribed period of limitation of 90 days without a petition

seeking condonation of delay and no separate application was filed

by the plaintiffs of T.S.5 of 2021 in terms of Order XXII Rule 9 CPC

for setting aside the abatement order.

[5]

Mr.P.K.Dhar, learned counsel of the petitioners has

argued that the suit stood abated as against the deceased

defendant since she was not substituted by her legal heirs within

the prescribed period of limitation and therefore, the trial court

should not have allowed the substitution of the deceased defendant

by her legal heirs on the basis of a petition which was filed long

after the expiry of the prescribed period of limitation and that, too,

without a separate petition for setting aside the abatement order.

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[6]

It would appear from the impugned order that

petitioners’ counsel raised the same points of arguments before the

trial court.

[7]

Mr.A.Bhowmik learned counsel appearing for the

respondents on the other hand, has contended that the law of

limitation has no application in this case because in view of the out-

break of COVID-19 pandemic, the Hon’ble Supreme Court allowed

the extension of the period of limitation w.e.f 15.03.2020 till further

order