Calcutta High Court
Biswanath Jhunjhunwala & Ors vs Vijay Singh Nahata on 11 September, 2025
1
OD-33
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
CS No. 66/1993
BISWANATH JHUNJHUNWALA & ORS VERSUS
VIJAY SINGH NAHATA
Before:
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 11th September 2025
APPEARANCE
Mr. Sujit Banerjee, Adv.
Ms. Nilay Sengupta, Adv.
For the plaintiff
Mr. Aritra Basu, Adv.
Mr. A. Agarwalla, Adv.
Mr. B.N. Joshi, Adv.
Mr. S. Banerjee, Adv.
Ms. D. Mukherjee, Adv.
For the respondent
The Court: This is an application filed by the applicants praying for the following
reliefs:
a) Delay if any be condoned.
b) That the death of the plaintiff be recorded and the persons named in paragraph
3 be substituted in place thereof and plaint be allowed to be amended in the
manner shown in the red ink in Annexure - B herein;
c) The concerned department of the Original side of this Hon'ble Court be directed
to carry out the amendment within a period of two weeks from the date of
communication of the order to be passed in the present application.
d) Leave be granted to the intending plaintiff/applicant herein, for re-verification
and re-affirmation of the proposed amended plaint within a period of eight
weeks from the date of Order to be passed herein;
e) Such further order or orders be passed as Your Lordships may deem fit and
proper.
It is the contention of the applicant that in the year 1993 the father of the
applicant along with his 2 (two) brothers had filed the present suit against the
defendant. In the year 1998 there arose some disputes and differences by and
between his father and his 2 brothers herein and since then there was no talking
terms between the plaintiffs. It is further contended that on 14th May 2017 the father
of the applicant the plaintiff no-1 died leaving behind two sons and two daughters as
legal heirs namely a)Sri Sanjay Jhunjhunwala, b) Sri Sandip Jhunjhunwala, c) Smt.
Sangeeta Bhagat and d) Smt. Manisha Bhagat.
It is contended that Smt. Gita Devi Jhunjhunwala wife of Biswanath
Jhunjhunwala predeceased him and died intestate on 7th July 2013 On 23rd
February 2023 at the time of affirming an affidavit in reply in GA No.-3 of 2021, by
the plaintiff no. 3 the plaintiff no. 3 came to know for the first time that the death of
the plaintiff no-1 has not been recorded, nor the legal representatives of the plaintiff
no: 1 have been substituted in his place. Thereafter the plaintiff no. 3 had called the
applicant and requested the reasons behind such inaction to record the death of
plaintiff no-1 in the present proceedings. In reply the applicant disclosed inter alia
that he is in no talking terms with his brother and his sisters are not interested to
join in any of pending litigations in the name of their father.
It is further disclosed that M/S. B.M. Bagaria and Company, advocate should also
take steps in the matter to get them substituted in place of the plaintiff no: 1. It is
also contended that the applicant in the present facts and circumstances have come
forward and thought it fit and proper to apply for recording of death and substitution
of legal representatives of the plaintiff no-1.
The Defendant has contested the application by filing Affidavit in opposition.
It is contended that the plaintiff no-1 died on 14th May 2017 and no application
for substitution of the legal heirs of plaintiff no-1 was filed within the period
mandated under law and as such the suit in so far as it relates to the deceased
plaintiff stood abated. Thereafter the time for applying to set aside abatement stood
extinguished. It is further contended that the plaintiffs have all along been aware
that steps were required to be taken for substitution of legal heirs of the plaintiff no-
1. The plaintiff sought for an adjournment to file necessary application for
substitution of the plaintiff no. 1 and the same is recorded in the order dated 1st
September 2023. It is also contended that the Learned Advocate of the plaintiff no.1
informed the defendant herein of the death of the plaintiff no. 1 on 8th August 2023.
The names of the legal heirs were thereafter disclosed by a further letter dated 7th
October 2023. The said letters were issued in connection with C.S. No. 497 of 1991
where the plaintiff no. 1 is a party. The defendant has also denied the contentions
made in the application for substitution.
The applicant has filed affidavit in reply repeating and reiterating the allegations
made in the application for substitution. It is contended that complete cause papers
were found from the erstwhile Learned Advocate M/S B.M. Bagaria and Company on
March 2025. It is further contended that plaintiff no. 2 and 3 are aged about 76
years and 82 years and have become completely immobile.
Heard Learned Advocates for the parties. Perused the petition filed and materials
on record. Learned Advocate for the applicant submits that the applicants have
sufficient cause for not making the application in time, and there was laches on the
part of former Advocate.
Learned Advocate for the defendant/opposite party submits that the applicants
have not explained the delay of two years from February 2023 thus this application
should be dismissed.
Before proceeding to decide the material in issue it is necessary to discuss the
provisions contained in Order XXII Rule 3 of the Code of Civil Procedure.
Order XXII Rule 3 of the Code of Civil Procedure; provides as follows:-
R.3. Procedure in case of death of one of several plaintiffs or of sole plaintiff-
1) Where one of two or more plaintiffs dies and the right to sue does not. Survive
to the surviving plaintiff or plaintiffs alone or a sole plaintiff or sole surviving plaintiff
dies and the right to sue survives the Court on an application made in that behalf
shall cause the legal representative of the deceased plaintiff to be made a party and
shall proceed with the suit.
2) Where within the time limited by law no application is made under sub-rule (1),
the suit shall abate so far as the deceased plaintiff is concerned and on the
application of the defendant, the court may award to him the costs which he may
have incurred in defending the suit, to be recovered from the estate of the deceased
plaintiff.
In the instant matter it is an admitted position that the application for
substitution is filed after the suit is abated with regard to the plaintiff no-1. Now the
question for consideration is whether the application for substitution should be
allowed after setting aside abatement.
Order XXII Rule 9 Sub-Rule 2 of the Code of Civil Procedure provides that the
plaintiff or the person claiming to be the legal representative of a deceased plaintiff or
the assignee or the receiver in the 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 fit.
Sub-rule-3 provides that the provisions of section 5 of the Indian Limitation Act 1877
shall apply to applications under sub-rule-2.
Now upon plain reading of the provision contained in sub-rule 2 of Rule-9 of
Order XXII of the Code of Civil Procedure it will appear that if the heirs of the plaintiff
can show that they were prevented by sufficient cause from continuing the suit the
abatement may be set aside after condoning the delay if any.
As there is no straight jacket formula for ascertaining sufficient cause, the said
cause various from case to case.
Upon plain reading of Order XXII Rule 3. Sub-rule 1 of the Code of Civil Procedure
it will appear that the said rule does not provide that the application for substitution
shall be made by the heirs of the deceased, plaintiff but it simply provides that on the
application being made in this regard the Court shall cause the legal representative
of the deceased plaintiff to be made a party and shall proceed with the suit. Thus an
application for deleting the name of the deceased plaintiff may be made by any of the
surviving plaintiff. In this case the surviving plaintiffs could not make any application
for substitution although the remedy was available. As it will appear from the petition
that plaintiff no-3 was of the impression the death of plaintiff no-1 was recorded and
heirs substituted.
It is well settled that when a suit abates right occurs to the defendant and unless
sufficient cause is shown abatement should not be set aside. However such right is
said to have occurred in letter and spirit when the defendant comes to know of the
death of the plaintiff and finds that no steps have been taken to record the death of
the deceased plaintiff or to bring the legal representatives on record although
considerable period has passed and the defendant is in place of mind that there is no
pending litigant. In such a solution when all of a sudden an application is sought to
be moved to set aside abatement and revive the suit the peace of mind which is also a
basic right is disturbed to some extent. In such a situation sufficient cause has to be
definitely established to get the abatement set aside and revive the suit/proceedings.
In the instant matter the suit was being proceeded with and even in 2021
interlocutory application was filed and at the time of getting the affidavit in reply in
GA-3/2021 ready plaintiff no-3 came to know heirs of deceased plaintiff no-1 was not
substituted. Similarly on February 2023 defendant also came to know of death of
plaintiff no-1 when surviving plaintiffs sought for time to take out necessary
application. When time is sought for taking necessary steps on account of death of
one of the plaintiffs and another suit filed by the defendant against the plaintiff
where defendant took steps by bringing legal representative of deceased plaintiff on
record there is no ground to presume that surviving plaintiffs or heirs of deceased
plaintiff will not take necessary steps in accordance with Law.
Even a suit which is heard in part or pending for many years Courts may in the
interest of justice take a lenient view and set aside abatement even when an
application for setting aside abatement is made at a very belated stage, so that the
dispute is adjudicated on merits. It is always reasonable to get a suit adjudicated on
merits rather than letting the same remain abated or remain dismissed for default,
unless there are very exceptional circumstances. However as Rule 2 of Order 9 CPC
provides the condition of showing sufficient cause surviving plaintiffs or heirs of
deceased plaintiff are not exempted from the task of showing sufficient cause. As
sufficient cause is to be determined upon considering the facts of the case it is the
duty of the Court to consider the facts in order to decide whether leniency should be
shown. In the event it appears that leniency can be shown by compensating the
defendant by costs lenient view should be taken.
The applicant in his application has stated that on February 2023the plaintiff no-
3 came to know that the heirs of the plaintiff no-1 was not substituted. The applicant
also gave the reason to the plaintiff no-3 that his sister were not willing to join
themselves in the suit of their father and he was not in talking terms with his brother
Moreover, the applicant has also contended that there was dispute and difference
between his father and plaintiff no-2 and 3. The applicant has also alleged that
necessary steps ought to have been taken by the Learned Advocate.
Thus upon considering the entire situation it will appear that the applicant was
not in a position to take a decision. Moreover some laches also appears on the part of
Learned Advocate in filing necessary application by surviving plaintiffs.
When situation is taken as a whole and not in isolation and the conscience of the
court permits condonation of delay and setting aside abatement Court may condone
delay and set aside abatement. It is observed in different judicial pronouncements
that code of procedure is designed to facilitate justice and further its ends and not a
penal enactment for punishment thus rigid view of the procedure may not be taken.
In the case of Kunhikayyuma and Anr VS Union of India reported in AIR-1988 Ker
184 the Hon'ble Court observed as follows:
12. The decision of the Supreme Court in Union of India v. Ram Charan. AIR 1964
SC 215, on which reliance was placed by counsel for the appellants, is not as
absolute as may be thought of at first sight. No doubt, the insistence on there being
sufficient cause for setting aside the abatement had been highlighted in that
decision. However, a close reading of para 12 of the judgment, particularly the last
sentence thereof, would point out that the position is not one of absolute inflexibility.
That clearly is the effect of the following passage contained therein:
"If no such facts are alleged, none can be established and, in that case the Court
cannot set aside the abatement of the suit unless the very circumstances of the case
make it so obvious that the Court be in a position to hold that there was sufficient
cause for the applicant's not continuing the suit by taking necessary steps within the
period of limitation." (Emphasis supplied)
In other words, even if an applicant does not allege or prove facts making out
sufficient reason for not making the application for bringing on record the legal
representatives of the deceased within the stipulated time, the court would not be
powerless to render justice when it is satisfied that circumstances of the case are
obviously such which would justify a finding of sufficient cause to be taken by the
court. The lower appellate court also has approached the facts of the case by
adhering to such a principle, as will be evident from the extract in its judgment
referred to in paragraph 4 supra. the circumstances have been considered from that
angle. The finding of sufficient cause has been reached on a proper application of the
correct legal principle and an exhaustive consideration of the circumstances in the
case. I am in full agreement with the approach and conclusion taken by the court
below on this aspect. There is no error whatever in the judgment of the court below,
much less a substantial error of law which alone would justify interference in second
appeal.'
Upon considering the facts of the case and the judicial decisions this court is of
the view that the application of the petitioner should be allowed subject to the
payment of costs.
Let there be an order in terms of prayer a,b,c,d, and e in terms of Master
Summons dated 10th day of June 2025.
This order is subject to the payment of costs of 100 G.M. to the Defendant no and
100 G.M. to the State Legal Service Authority West Bengal.
(BISWAROOP CHOWDHURY, J.)
A.Bhar(P.A)
