FAO 6/2011 BEFORE THE HON’BLE MR JUSTICE AMITAVA ROY Heard Ms. R. Choudhury, learned counsel for the appellant and Mr. B.R. Dey, lear ned Senior Counsel for the opposite party being assisted by Mr. P. Sen, Advocate . The instant appeal is directed against the order dated 29.09.2007 passed by the learned Civil Judge, Bongaigaon in case M.S. No.1/2006 rejecting the application s filed by the appellant for setting aside the abatement of the suit for the omi ssion to substitute the heirs and legal representatives of Prakash Chandra Sarma (since deceased), the proprietor of the plaintiff-firm M/s. Kamakhya Filling St ation, Rakhaldubi in time and also for substituting him as such. The suit was filed by the aforenamed plaintiff-firm of which the deceased was th e proprietor through his attorney, Shri Subodh Kumar Jain. During the pendency o f the suit, the above- named proprietor of the firm expired on 01.01.2007. Admi ttedly, no application for substituting him was filed within the period of limit ation prescribed therefor i.e. 90 days. Both these applications were resisted by the opposite party. The learned trial C ourt sustained the objection and passed the order impugned in the instant appeal rejecting both these applications. Ms. Choudhury has urged that the applications filed by the petitioner, the only son of the deceased duly explained the reasons for the delay and that the learne d trial Court has passed the impugned order without considering the same, inter ference therewith in the interest of justice is called for. Mr. Dey has argued per contra that the materials on record being not decisive to demonstrate that t he petitioner(Amit Sharma) is the sole surviving heir and legal representative o f the deceased, no interference as sought for is warranted. Upon hearing the learned counsel for the parties and on a consideration of the p leaded facts and the documents annexed to the memorandum of appeal, I am of the view that the impugned order is unsustainable in law and on facts. The applicat ion filed by Shri Amit Sharma discloses that he claimed therein to be the only s on of the deceased Prakash Chandra Sharma. According to him, though on receiving the news of the demise of his father he had returned to India from his place of residence in the United States of America, he returned after completion of the funeral rites and that he had no personal knowledge of the pendency of the suit for which he could not contact the attorney for necessary steps. According to h im, the factum of the death of his father in the attendant facts and circumstanc es could not be laid before the learned Court in time with the incidental prayer for substitution and setting aside the abatement. Both the applications referr ed to hereinabove are supported by verification signed by the petitioner, Shri A mit Sharma. Though, a plea has been raised on behalf of the opposite party indicating uncert ainty about the heirs and legal representatives of the deceased, the application s prima facie reveal that the applicant is his only son. When queried by this C ourt, Mr. Dey has not been able to draw the attention to any fact contrary to th e above or indicating that the deceased had left behind heirs and legal represen tatives apart from the petitioner above-named. A perusal of the impugned order discloses that the learned trial Court did not t ake into consideration the cause shown in the applications for the delay in fili ng the same for setting aside the abatement and substitution. Though, admittedl y on the date of passing of the order the suit had abated in terms of Order XXII of the Civil Procedure Code, the learned trial Court proceeded on the basis th at it had not and therefore rejected the application for setting aside the abate ment as prematured. Upon hearing the learned counsel for the parties, this Court is of the view that the impugned order in the interest of justice ought to be i nterfered with. Ordered accordingly. The order dated 29.09.2007 is thus set aside. The learned trial Court would pass appropriate order(s) on the applicati ons after hearing both sides afresh on merits. The appeal is allowed. No costs.