Bhaskar Bhattacharya, J. - (1.) Order dated December 12, 1997 passed by the learned Additional District Judge, 2nd Court, Howrah in Misc. Appeal No. 188 of 1995 is the subject matter of challenge in both the aforesaid revisional applications.
(2.) The fact giving rise to the aforesaid two revisional applications may be summarised thus:- a) The predecessors-in-interest of the petitioners in C.O. No. 200 of 1998 brought against four persons in the 5th Court of Munsif, Howrah a suit being Title Suit No. 253 of 1964 for declaration of Easement right and for injunction restraining those persons from interfering with such right of easement over the suit property. In the aforesaid suit, the defendant Nos. 3 and 4 did not contest but the other two defendants viz. defendant Nos. 1 and 2 appeared and jointly filed written statement. b) During the pendency of the aforesaid suit defendant No. 2 died on February 4, 1980 but no application for substitution of the heirs and legal representatives of the said defendant No. 2 was filed within the period of limitation. The learned advocate of the defendants No. 1 and 2 however informed the court on December 9, 1981 that defendant No. 2 had died although the names of the heirs and legal representatives of the deceased defendant No. 2 were not disclosed. c) The plaintiff however instead of filing an application for setting aside abatement, filed an application under Order 23 Rule 1(3) of the Civil Procedure Code thereby praying for permission for withdraw the suit with liberty to file a fresh suit on the same subject matter. The learned trial Judge by order dated July 30, 1984 allowed such prayer. d) The defendant No.1 filed a revisional application before this court under Section 115 of the Civil Procedure Code against the said order dated July 30, 1984 and the said revisional application was ultimately allowed by this court on April 6, 1989 thereby setting aside the order dated July 30, 1984. e) Thereafter, the plaintiff filed an application under Order 22 Rule 9 of the Civil Procedure Code for substitution of the heirs and legal representatives of the deceased defendant No. 2 after setting aside abatement on condonation of delay. The said application gave rise to Misc. Case No. 14 of 1992. f) The said Misc. case as well as application under Section 5 of the Limitation Act were contested by the defendant No.1 and ultimately the learned trial Judge by order dated August 24, 1995 dismissed the said misc. case thereby holding that the plaintiffs had failed to prove that they were prevented by sufficient ground from filing the application for substitution or the petition for setting aside abatement within the time. After such finding, the learned trial Judge further held that in view of the nature of the allegation made in the plaint, on the death of defendant No.2 the suit had abated not only against the said defendant but as a whole.
(3.) Being dissatisfied with the aforesaid order passed by the learned trial Judge, the plaintiffs preferred a misc. appeal being Misc. Appeal No. 188 of 1995 before the learned District Judge and by the order impugned the learned first Appellate court affirmed the order of the learned trial Judge as regards his finding that there was no reason to condone the delay in preferring the application for substitution or setting aside abatement. However, the learned Additional District Judge set aside the order passed by the learned trial Judge by which he recorded that the suit had abated as a whole. "According to the learned first Appellate court, whether the suit had abated as a whole should be decided in the suit itself and the learned trial Judge acted illegally in recording such finding in a Misc. Case under Order 22 Rule 9 of the Code.;