PRABIR DUTTA vs SUBHENDU KR DUTTA AND ORS

th
7 September,
2026
(AK)
06

F.M.A.T 287 of 2025
IA No: CAN 1 of 2025
CAN 2 of 2025
CAN 3 of 2026

Prabir Dutta
Vs.
Subhendu Kumar Dutta and others


Mr. Debanik Banerjee
Mr. Huzaifa Shahid
Mr. Soumyadeb Chakraborty
….For the appellant.





1. From the affidavit-of-service filed today in Court,
we find that the proforma respondents have been
duly served. Inasmuch as the principal respondent
is concerned, the postal endorsement has been
rendered as “unclaimed”, upon intimation being
served, which tantamounts to good service.
2. However, none appears for the respondent or the
proforma respondents at the time of call.
3. In view of service on the respondent and the
proforma respondents having already been effected,
we take up the matter in the absence of the
respondent and the proforma respondents.

4. CAN 3 of 2026 is an application for leave to prefer
the appeal.

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5. Learned counsel appearing for the appellant
submits that the parties to the present appeal were
substituted in the trial court in place and stead of
the original parties. However, the same is not
reflected in the cause title of the suit as depicted in
the certified copy of the impugned order.
6. We find substance in such contention.

7. Accordingly, CAN 3 of 2026 is allowed, thereby
granting the appellant leave to prefer the appeal on
his behalf as well as against the respondent and
the proforma respondents.
8. There will be no order as to costs.
9. While hearing the application for condonation of
delay, we find that the appeal itself has been
preferred against an order dated November 22,
2017, whereby the learned Trial Judge had merely
recorded that the application under Order IX Rule
13 of the Code of Civil Procedure filed by the
predecessor-in-interest/father of the appellant had
abated, since 90 days had passed after the demise
of the said original petitioner.
10. It is well-settled that mere recording of abatement
of a legal action is not the dismissal of the same.
Rather, such recording of abatement is merely
ministerial in nature.

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11. The abatement of the miscellaneous case under
Order IX Rule 13 happened automatically, by
operation of law, after the expiry of the statutory
time limit of 90 days from the demise of the original
petitioner, and by the impugned order, the learned
Trial Judge merely recorded such abatement.
12. Thus, the impugned order is not an appealable one.

13. In any event, the learned Trial Judge, after the
abatement, could not have dismissed the
miscellaneous case on merits at all.
14. In such view of the matter, we hold that the appeal
is not maintainable.
15. Accordingly, CAN 1 of 2025 is dismissed, along with
FMAT 287 of 2025 and CAN 2 of 2025, on the
ground of being not maintainable.
16. Nothing in this order or the dismissal of the present
appeal, however, shall be construed to preclude the
appellant from preferring appropriate applications
for substitution, for setting aside abatement of the
miscellaneous case bearing Miscellaneous Case
No.5235 of 2015, as well as an application for
condonation of delay in filing the said applications
before the Trial Court.
17. If such applications are filed before the learned
Trial Judge, the learned Trial Judge shall dispose of
those in accordance with law, independently and on

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their own merits, without being influenced in any
manner on merits by any of the observations made
herein.
18. There will be no order as to costs.
19. Urgent Photostat copies of this order, if applied for,
be given to the parties upon compliance of all
requisite formalities.


(Sabyasachi Bhattacharyya, J.)


(Sandip Kumar De, J.)