- (1.) In this civil revisional application challenge is thrown to the order impugned no.372 dated 26th August, 2011 passed by the Ld. 6th Civil Court (Senior Division) at Alipore in Misc. Case no.471 of 2010.
(2.) By the said impugned order the Ld. 6th Civil Court was pleased to decide an application filed by the petitioner under Section 5 of the Limitation Act, 1963 along with an application under Order 9 Rule 4 Code of Civil Procedure (CPC) praying for restoration of the suit which was dismissed for default. The Ld. Trial Court was pleased to inter alia, come to the finding that from the record it appears that from the report of the death of Abhijit Ghosh who signed the plaint on behalf of the plaintiff no.1-Company on 20th June, 2008 no substitution was carried out on behalf of the plaintiff no.1-Company in the suit. Since 22nd August, 2008 the plaintiff was found absent and on 26th October, 2009, i.e. after the lapse of more than one year the suit was dismissed for default.
(3.) The Ld. 6th Civil Court was further pleased to observe that the application under Order 9 Rule 4 CPC has been only signed by the representative of the plaintiff no.1- one Dilip Ghosh and Bharati Ghosh. Neither Dilip Ghosh nor Bharati Ghosh were substituted for the plaintiff no.1 in the original suit. However, from the facts stated in the petition under Order 9 Rule 4 CPC it is discernible that both Dilip Ghosh and Abhijit Ghosh were the managing trustees of the plaintiff no.1- Company and after the death of Abhijit Ghosh, Mrs. Bharati Ghosh was appointed as trustee in place of her husband, Abhijit Ghosh. However, the date of appointment of Bharati Ghosh cannot be ascertained from the petition. Considering the pleadings on the cause made out for restoration of the suit, the Ld. 6th Civil Court was pleased to find that the petitioners have stated that on 16th March, 2010 they were informed that the suit was dismissed for default on 26th October, 2009 and, after the lapse of 1 1/2 months the petition under Order 9 Rule 4 CPC was filed. Thereby the prescribed period of limitation under Article 122 of the Limitation Act of 30 days to file for restoration of the suit was crossed.;