SAHIDULLAH MUNSHI,J. - (1.) This is an application filed by the plaintiffs praying for substitution of the legal heirs and the representatives of the defendant no. 1, Chunilal Pyne, who died on 28th December, 2010. The contention of the plaintiffs-petitioners is that in between the parties an appeal was pending against an order rejecting the plaint passed by the trial Court in the said appeal. An application was filed seeking substitution of Chunilal Pyne and the appeal Court allowed the substitution of the legal heirs and representatives of deceased Chunilal Pyne. However, no application is taken out by the plaintiffs for substitution of the legal heirs and representatives in the plaint of the suit. Now, an application has been filed by the plaintiffs seeking substitution of the legal heirs and representatives of the said deceased Chunilal Pyne.
(2.) Mr. Dutta appearing on behalf of the defendants submits that the application at this stage cannot be allowed and even if the same is to be allowed, the plaintiffs should be put on terms. He submits that defendant no. 1 died in 2010, whereas the legal heirs and representatives of deceased Chunilal Pyne was substituted by an order dated 18th February, 2011 by the Hon'ble Division Bench.
(3.) Mr. Dutta submits that although it was within the knowledge of the plaintiffs that Chunilal Pyne died and they took steps for substitution before the Appellate Court, no steps were taken for last seven years to bring on record, the self-same legal heirs in the plaint of the suit. The plaintiffs-petitioners has filed this application with a prayer for condonation of delay in filing the application for substitution and after condoning the delay to set aside the abatement and thereafter, to substitute the legal heirs on records of the instant suit. In support of such prayer, Mr. Mitra relied on a decision in the case of Rangubai Kom Shanker Jagtap v. Sunderabai Sakharama Jedhe and Ors., reported in AIR 1965 SC 1794. An identical question arose in the said decision before the Hon'ble Apex court as to whether failing to substitute legal heirs and representatives of a deceased party render the suit abated while the same legal heirs and representatives were already brought on record of an appeal arose from the said suit. Their Lordships held that since the appeal is continuation of the suit and since the parties were already brought on record before the Appellate Court, there is no reason to disallow the prayer for substitution even after the period of limitation to bring them on record of the plaint.;