CRP 362/2010 BEFORE THE HON’BLE MR JUSTICE H.BARUAH Heard Mr. M.U.Mahmud, learned Counsel appearing for the petitioners. None appear s for and on behalf of the sole respondent despite service of notice on her. This application is preferred U/S 115(b) and (c) of the Civil Code of Procedure ,for short C.P.C , read with Article 227 of the Constitution of India challen ging the legality and correctness of the order 6.7.2010 passed by the learned Munsiff, Bongaigaon in Misc.(J) Case No. 58/2010 arising out of T.S. No. 12 of 2 008 whereby and where under the application filed under Order 22 Rule 9 of CPC of the petitioners has been rejected. The facts involved in this case can be placed as under :- The predecessor in interest of the petitioners herein Late Subash Chandr a Saha filed a Title Suit No. 12 of 2008 in the Court of Munsiff, Bongaigaon seeking eviction of the defendant from the shop room in question and also for recovery of arrear rent of Rs. 4200/-. While the suit was sub-judiced, on 1.2 .2010 said Subhas Chandara Saha died leaving the petitioners herein as his lega l heirs. The factum of death of said Subash Chandra Saha was made known to Court by the concerned Advocate after 90 days. The suit in the meantime abated on ac count of death of the sole plaintiff. The petitioners due to abatement of the su it on the death of the sole plaintiff, approached the Court to set aside the aba tement by filing a petition No. 1113 of 2010 along with an application being N o. 1111/2010 for condoning the delay. The Court, however, upon hearing the lea rned counsel on both applications was pleased to dismiss the same and accordingl y, the petitioner having had no other alternative but to approach the learned Mu nsiff, Bongaigaon under Order 22,Rule 9 of the CPC by filing an application whi ch had been registered as Misc ( J) Case No. 58 of 2010. The said application w as resisted by the O.P. by filing objection. The matter was heard and the learne d Munsiff by order dated 25.08.2010 dismissed the application filed under Order 22, Rule 9 C.P.C. Order 22 Rule 3 provides Procedure in case of death of one of several plainti ffs or of the sole Plaintiff. It says where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or a sole plaintiff or sole surviving plaintiff dies and the right to su e survives, the Court on an application made in that behalf , shall cause the legal representative(s) of the deceased plaintiff to be made a party and shall proceed with the suit. Subash Chandra Saha was the sole plaintiff in the suit and the petitione rs herein are his surviving legal heirs. Therefore, on the death of the plaintif f, the surviving legal heirs have the right to sue on the cause of action on th e death of Subash Chandra Saha and the factum of death was reported after 90 d ays . The suit thus abated. As a result the petitioners herein would have the r ight to take recourse to the procedure provided under Order 22 Rule 9 CPC. If a n application is made under Rule of the Order, the Court shall consider the gr ounds contended therein and accordingly, would be justified to pass the order e ither by accepting or rejecting the same. The learned trial Court while passing the impugned order has indicated that the grounds incorporated in the applicati on of the petitioners are not in conformity with the materials on record more p articularly, the evidence of P.W-2, who is one of the witnesses in the proceedi ng. It was contended in the application that they were unable to file applicati on on account of illness of Subrata Shah and for the reasons/ grounds contended therein. It was indicated in the application that he was to remain busy in perfo rming ceremonies on the death of his father and also for providing livelihood o f his family members since there was no source of income. The trial court while discussing the grounds as incorporated in the application as well as objection c ame to a decision that the grounds taken by the applicants are not in conformi ty with the materials available on record. The learned trial court however, di d not into consideration the illness Subrata Shah during the relevant period of time. Admittedly, the materials available on the record do not justify that the grounds taken in the application showing inability to file application under Or der 22,Rule 9 CPC, cannot be recorded as sufficient to reject the objection rai sed by the respondent herein. But one of the grounds which had been incorporated in the application showing inability to approach the Court under the order and the relevant rules being sufficient and cogent , this Court finds that the rej ection of the application is not justified on the part of the trial court. Accor dingly, the impugned order as indicated is hereby set aside and quashed. The p etitioners would be at liberty to make application(s) to the learned trial cou rt to implead themselves as plaintiffs in the suit. This Revision petition accordingly stands allowed. No costs.