31.07.2026 Sl. No.02. Mithun Ct.No.29. CO 3890 of 2024 Bimal Kumar Das Vs. Maya Rani Das & Ors. Mr. Dyutiman Banerjee, Mr. Debjit Dutta, Mr. Debayan Roy …for the petitioner. Affidavit-of-service and supplementary affidavit filed by the petitioner is taken on record. Opposite party is not represented. In this application the petitioner has assailed the order No.19 dated 20th July, 2024 passed by the learned Civil Judge (Junior Division) 2nd Court, Howrah in Miscellaneous Case No.208 of 2020 arising out of Title Suit No.208 of 2004. Learned Counsel appearing on behalf of the petitioner/defendant submits that the opposite party being the plaintiff filed the aforesaid Title Suit No.208 of 2004 which got dismissed for default on 27.03.2019 as the plaintiff did not take any step on that date. The said suit was filed by the sole plaintiff, Chandra Sekhar Mondal, who died long back on 8th March, 2018. Therefore, the suit has got abated with the expiry of the statutory period. However, the opposite party herein 2 being the plaintiff made a prayer for restoration of the suit in its original file by initiating a Misc. Case under Order IX Rule 9 along with an application for condonation of delay under Section 5 of the Limitation Act and the Court below by the impugned order has allowed the plaintiff’s prayer for restoration of the aforesaid suit in its original file with original number. It further appears that even the prayer for restoration was made by the plaintiff/opposite party herein on 19th October, 2020 which is much beyond the statutory period. Therefore, learned Counsel for the petitioner submits that the order impugned suffers from perversity and is required to be set aside invoking this Court’s jurisdiction under Article 227 of the Constitution of India. From the application filed by the plaintiff/opposite party herein under Order IX Rule 9 CPC, it appears that admittedly sole plaintiff Chandra Sekhar Mondal died on 08.03.2018. Admittedly no prayer for substitution was made within the statutory period and, as such, with the expiry of the statutory period, the suit has been abated as a whole due to the death of sole plaintiff. In such circumstances, the Trial Court completely misdirected himself in allowing the prayer made by the heirs of deceased sole plaintiff in respect of restoration of the 3 suit in its original file which was filed on 19th October, 2020. C.O 3890 of 2024 is allowed. In view of above, the order impugned dated 20th July, 2024 by which the Trial Court restored the suit in its original file after setting aside the order of dismissal is hereby set aside. However, this dismissal order will not preclude the heirs of sole deceased plaintiff to take appropriate steps for setting aside the abetment order, if any, but subject to the other provisions of law. (Dr. Ajoy Kumar Mukherjee, J.)