JUDGMENT : Ashoke Kumar Dasadhikari, J. Order impugned passed by the learned Civil Judge, Junior Division, 3rd Court, Diamond Harbour in Misc. Case No. 6 of 2007 is challenged by the defendant/petitioner. 2. Mr. Hiranmoy Bhattacharya, learned Counsel appearing for the petitioner submits that the successors of the plaintiff, since deceased, moved two applications before the learned Court below, one is for setting aside abatement and the other one is for condonation of delay under Section 5 of Limitation Act and all those applications were taken up together and disposed of thereby treating the abatement application as application under Order 9, Rule 9 . 3. Mr. Bhattacharya submits, after the death of the plaintiff, Haripada Haldar, the successors got opportunity to make application for restoration of the title suit but the successors of the plaintiff did not approach the learned Court below within limitation period. However, he submits that the reasons disclosed in the application under Section 5 are not sufficient reasons to condone the delay. 4. Mr. Bhattacharya submits that the evidence laid at the time of cross-examination will show that the successors have due knowledge about the suit but they did not take step. Medical certificate produced and relied upon by the successors were not proved. Therefore, Section 5 application ought not to have been allowed. 5. Mr. Bhattacharys submits even if the application filed for setting aside the abatement is treated as an application under Order 9, Rule 9 but the application must have ingredients of the provisions under Order 9, Rule 9. The application should be in substance and form an application under Order 9, Rule 9. According to Mr. Bhattacharya the contentions in both the applications filed by the successors are same. 6. Mr. Bhattacharya submits that the reason disclosed in the application for setting aside abatement is in fact stated in the application for condonation of delay. No ingredient as required under Order 9, Rule 9 is available in the petition. He also submits that both the applications were decided by one order and the learned Court below did not consider those two applications separately and record separate reasons for allowing those two applications. 7. Mr. Bhattacharya submits that order impugned be set aside. 8. On the other hand, Mr. Suprabhat Bhattacharya, learned Counsel appearing for the opposite parties submits that Haripada Haldar, the then plaintiff, was suffering from serious ailment. 7. Mr. Bhattacharya submits that order impugned be set aside. 8. On the other hand, Mr. Suprabhat Bhattacharya, learned Counsel appearing for the opposite parties submits that Haripada Haldar, the then plaintiff, was suffering from serious ailment. He had to take help of his nephew and his younger son-in-law to attend the court. Therefore, under no circumstances it could be said that the successors of the deceased-plaintiff have knowledge about the matter. 9. Learned Counsel submits that in view of ailment of plaintiff he could not attend the court although trial was going on. He submits on 25th November, 2005 show-cause was issued and the plaintiff died two days after i.e. 27th November, 2005. Hearing of show cause was fixed on 6th December, 2005 when the plaintiff is already dead. On 6th December, 2005 hazira was filed by the plaintiffs learned Advocate and it was rightly presumed by the learned Court below that on that date intimation of the death of the plaintiff was given. 10. Learned Counsel submits that in view of such intimation at least the learned Court below ought to have waited for 90 days i.e. limitation period till 27th February, 2006 but instead of fixing the date after 27th February, 2006 the suit appeared on 19th January, 2006 and dismissed. 11. Learned Counsel submits the order of dismissal itself is contrary to the provisions of law. Therefore, on that score the learned Court below ought to have allowed both the applications. However, the learned Court below have considered the entire matter although the two applications were taken together. Learned Court below have analysed the evidence on record and also referred the medical certificate which was marked as exhibit and also concluded that in view of rural culture it would not be possible for an illiterate lady being the wife of the deceased to know about the pendency of the suit. He submits there is proper consideration of all evidence available on record and therefore condonation of delay was done rightly. 12. Learned Counsel further submits that all the ingredients what are required under Order 9, Rule 9 were available and in fact, the application for setting aside abatement was having all materials particulars and details required for treating the same as application under Order 9, Rule 9. 12. Learned Counsel further submits that all the ingredients what are required under Order 9, Rule 9 were available and in fact, the application for setting aside abatement was having all materials particulars and details required for treating the same as application under Order 9, Rule 9. He submits that the learned lawyer who was representing the successors of the deceased-plaintiff made a prayer that the application be treated as Order 9, Rule 9 application which was allowed by the learned Court below which was not objected and the application was considered and disposed of along with Section 5 application. 13. Learned Counsel submits that there is nothing wrong in the order and this Court should not interfere with the order passed by the learned Court below. 14. Considered the submissions made by the learned Counsel appearing for the parties as well as materials available on record. It appears from a plain reading of the order that the learned Court below have allowed the conversion of the application, although made for setting aside abatement, as an application under Order 9, Rule 9 and took up both the applications together for disposal. This was not objected by the petitioners learned Advocate before the learned Court below. 15. Learned Court below has carefully considered the materials available on record and he has thoroughly discussed the matter and recorded that the date fixed for hearing the show-cause i.e. 19th January, 2006 when the Court was presumed to be informed about the death of the plaintiff, no order for dismissal could be passed since 90 days limitation period is yet to come and as such the learned Court ought to have allowed the successors to make an application for substitution. But instead of allowing time or fixing a date till after 90 days the learned Court below dismissed the suit on 19th January, 2006 for default which itself is not proper and lawful. However, the learned Court below was satisfied about the grounds disclosed for condonation of delay. 16. In my considered opinion there are proper materials on record. I do not find any illegality and/or material irregularity in allowing application under Section 5 and also the application under Order 9, Rule 9. However, the learned Court below was satisfied about the grounds disclosed for condonation of delay. 16. In my considered opinion there are proper materials on record. I do not find any illegality and/or material irregularity in allowing application under Section 5 and also the application under Order 9, Rule 9. There is elaborate discussion and analysis of evidence which was duly considered by the learned Court below and the learned Court below was satisfied that the grounds disclosed in the application for setting aside abatement can be treated as an application under Order 9, Rule 9 and further the same would be sufficient to recall the order of dismissal. 17. In my considered opinion there is no wrong in the order. There is no illegality whatsoever. Therefore, this revisional application is of no merit and as such, dismissed. 18. The defendants/opposite parties are permitted to withdraw the cost deposited before the learned Court below and the learned Court below is directed to dispose of the suit within a period of six months from the date of communication of this order without granting any unnecessary adjournment to any of the parties. Revisional application is dismissed.