SAHIDULLAH MUNSHI,J. - (1.) This is an application for substitution of the legal heirs and representatives of the deceased defendant no. 3, Hemchand Pyne. The said defendant no. 3 died on 25th August, 2017 but no information was either given to the plaintiff's learned Advocate or to the Court where the suit was pending. For the first time the learned Advocate for the defendants communicated a letter to the plaintiffs' Advocate, Mr. Sourav Sengupta by his letter dated 11th December, 2017 that Hem Chand Pyne passed away on 25th August, 2017. Such communication was received by the learned Advocate on 12th December, 2017.
(2.) The plaintiff/petitioner has filed this application praying for recording death of defendant no. 3 and for substitution of the legal heirs and representatives, particulars whereof are given in paragraph 7 of the application.
(3.) Mr. Dutta, learned counsel appearing for the defendants makes preliminary objection about maintainability of the writ petition. He submits that the application is barred by limitation in as much as Section 120 of the Limitation Act prescribes 90 days as period of limitation from the date of death of the party in the suit. In this case, Mr. Dutta submits, that the defendant no. 3 died on 25th August, 2017. The application has been filed on 19th December, 2017 which is indisputably more than 90 days. Mr. Dutta further submits that although law requires that an application is to be taken out within 90 days, the petitioner should have made a composite prayer for condonation of delay, otherwise the suit will be abated.;