Plaintiff 1 to 7 jointly file a declaration suit to claim adverse possession in Alipore Judges Court-Kolkata in 1994. Plaintiff 7 died on Dec-2003 but his Legal heir not substituted. Plaintiff did not file any Misc Case for setting aside of abatement. Later on that suit is also dismissed for default in Year 2010 for non-appearance of plaintiff.
Remaining Plaintiff File Misc Case (ORDER 9 Rule 9 of CPC) to restore that suit which is dissmissed for default. We are defendants, we have received summon in AUG 2013 for that Misc Case.
Can we state in W/S of Misc Case that such MISC Case is not maintainable because Plaintiff did not substitue 7 LR of deceased plaintiff no-7 ?
Can we claim that since all the jointly file a declation Suit to claim adverse possession and therfore there claim is common and hence that suit is totally abated ?
Note :-We have filed a Counterclaim against those Plaintiff in the same suit.(For Recovery of Possession in Year 2000). We have properly substituted the name of those 7 legal heirs by filing a Misc Case. Although the Original Suit dissmiised however our Counterclaim still subsit.
