Item- 26. sg 25-09-2026 Ct. 6 CO 3377 of 2026 Bhagirathi Shilpasram Ltd. Versus Gitanjali Dutta & Ors. Mr. Sarbananda Sanyal Mr. Anirban Das …for the petitioner Mr. Sarwan Jahan Mr. Sayan Mukherjee …for the respondent nos.1&2 This application under Article 227 of the Constitution of India is at the instance of the plaintiff and is directed against an order dated 18th August, 2026 passed by the learned Civil Judge (Junior Division), 2nd Court, Durgapur, Paschim Bardhaman in Title Suit No. 34 of 2014. By the order impugned, the Misc. Case No. 13 of 2025 filed by the petitioner praying for substitution of the heirs of the deceased proforma defendant no.4 after setting aside abatement, stood disposed of by recording the same has become infructuous. Mr. Sanyal, learned advocate appearing for the petitioner submits that the learned trial judge held that the misc. case has become infructuous only on the ground that the defendant nos. 1 and 2 filed an application for expunging the name of the proforma defendant no.4. Order 22 Rule 9(2) of the Code of Civil Procedure states that the plaintiff or the person claiming to be the legal representative of the deceased plaintiff or the assignee or the receiver in a case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks 2 fit. Order 22 Rule 4(1) of the Code of Civil Procedure states that, where one of two or more defendants dies and the right to sue does not survive against the surviving defendant; or a sole defendant or sole surviving defendant dies; and the right to sue survives, the court – on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made party and proceed with the suit. In the case on hand, it is not in dispute that out of more than 2 defendants, one of the defendants has died. Thus, the provisions of Order 22 Rule 4 comes into play in the case on hand. It is not in dispute that no application for substitution was filed within the time limit prescribed under the statute. The petitioner filed an application for substitution after setting aside abatement. Such an application could not have been disposed of as infructuous only on the ground that the defendant nos. 1 and 2 have filed an application to expunge the name of the deceased proforma defendant no.4. The carriage of proceeding lies with the plaintiff and the plaintiff filed an application for substitution after setting aside abatement. This Court is aware of the provisions of Order 22 Rule 4(4) of the Code of Civil Procedure which exempts the plaintiff from the necessity of substituting the legal representatives or any of the defendants whenever the Court thinks fit. In the case of hand, the plaintiff has not approached the Court for an exemption from substituting the heirs of the deceased proforma defendant no.4. Thus, the provisions of 3 Order 22 Rule 4(4) of the Code shall not stand in the way of filing of the application under Order 22 Rule 9 which has been registered a Misc. Case No. 13 of 2025. This Court holds that the Misc. Case under Order 22 Rule 9 of the Code maintainable and filing of an application by the defendants for expunging the name of the proforma defendant no.4 could not render the said Misc. Case infructuous. For such reason, this Court is inclined to interfere with the order impugned. The order impugned stands set aside. The Misc. Case No. 13 of 2025 stands restored to the file of the learned Civil Judge (Junior Division), 2nd Court, Durgapur. The learned trial judge is requested to consider the Misc. Case No. 13 of 2025 on its merit after affording an opportunity of hearing to the respective parties and dispose of the same as expeditiously as possible without granting any unnecessary adjournment to either of the parties. Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities. (Hiranmay Bhattacharyya, J.)