Page No.# 1/4 vs Tara Chand Nahata
2021 Latest Caselaw 3333 Gua

                                                                     Page No.# 1/4

GAHC010001532020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : CRP/8/2020

            ON DEATH OF RAJAT CHATTERJEE HIS LEGAL HEIRS-BABLI CHATTERJEE
            AND ANR.
            W/O- LATE RAJAT CHATTERJEE R/O- PALTAN BAZAR, GUWAHATI- 781008,
            DIST- KAMRUP(M), ASSAM

            2: RAKTIM CHATTERJEE
             S/O- LATE RAJAT CHATTERJEE
             R/O- PALTAN BAZAR
             GUWAHATI- 781008
             DIST- KAMRUP(M)
            ASSA

            VERSUS

            TARA CHAND NAHATA
            S/O- LATE M C NAHATA, R/O- C/O- FASHION SPOT, GS ROAD, SADAR
            THANA, POLICE BAZAR, SHILLONG, MEGHALAYA



Advocate for the Petitioner   : MR. S P CHOUDHURY

Advocate for the Respondent : MR D C K HAZARIKA

Page No.# 2/4

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH

07.12.2021

Heard Mr. S.P. Choudhury, learned counsel for the petitioner as well as Mr. D.C.K. Hazarika, learned counsel appearing on behalf of the respondents.

The instant application filed under Section 115 of the Code of Civil Procedure is directed against the judgment and decree dated 30.09.2019 passed by the First Appellate Court, thereby reversing the judgment and decree dated 09.06.2016 passed by the Munsiff No. 2, Kamrup (M), at Guwahati in Misc. (J) Case No. 4/2011 arising out of Title Execution No. 8/2011 corresponding to Title Suit No. 472/2009.

Without going into the merits as regards the legality and validity of the judgment and decree assailed before this Court, it is relevant to the point out that the plaintiff who is the petitioner herein has filed the suit being Title Suit No. 472/2009 against one Anup Thakuria for eviction on the ground of defaulter. Thereupon, the said suit was disposed of on admission by the judgment and decree dated 17.09.2010. When the said Shri Anup Thakuria did not vacate in terms of the judgment and decree dated 17.09.2010, the petitioners filed an application for execution being Title Execution No. 8/2011. In the said application, the respondent No. 1 herein filed an application under Order XXI Rule 97 of the Code of Civil Procedure stating inter-alia that he was the actual tenant of the suit premises and not Shri Anup Thakuria and the decree on admission dated 17.09.2010 was obtained fraudulently. The Executing Court registered the said application filed by the respondent No. 1 as Misc. Case No. 412/2011 and after hearing the parties dismissed the said application under Order XXI Rule 97 filed by the respondent No. 1. The said judgment passed by the Executing Court is a decree within the meaning of Order XXI Rule 103.

Feeling aggrieved and dissatisfied the respondent No. 1 filed an appeal before the Court of Civil Judge No. 3, Kamrup (M), at Guwahati registered as Title Appeal No. 104/2016. The First Appellate Court by the judgment and decree dated 30.09.2019 reversed the findings of the Executing Court in Misc. (J) Case No. 412/2011 holding inter-alia that the respondent Page No.# 3/4

No. 1 is the actual tenant and not Shri Anup Thakuria. Against the said judgment and decree dated 30.09.2019, the petitioner has approached this Court under Section 115 of the Code of Civil Procedure.

After hearing the parties at length, it could be seen that the disputes involved between the petitioner and the respondent No. 1 is not a dispute within the ambit of Assam Urban Areas Rent Control Act, 1972 inasmuch as the petitioner who is the owner of the suit premises claim that the respondent No. 1 is not his tenant.

In view of that, Mr. S.P. Choudhury, learned counsel for the petitioner submits that he may be permitted to withdraw the instant Revision Petition with the liberty to file a Regular Second Appeal against the said judgment and decree dated 30.09.2019 and he further submits that as the instant Revision Petition has been filed bonafidely and the petitioner has been prosecuting diligently, the period from the date of filing of the instant Revision Petition till the date of the instant order may be excluded while computing the period of limitation for the purpose of filing of the Regular Second Appeal.

I have heard the learned counsel for the parties at length and taking into consideration the proper remedy of the petitioner would be Second Appeal filed under Section 100 provided that he has the substantial question of law, I hereby permit the petitioner to withdraw the instant Revision Petition with the liberty to file an appeal under Section 100 of the CPC against the judgment and decree dated 30.09.2019. Taking into account, the petitioner has been diligently prosecuting the instant proceedings, the period from the date of filing of the instant Revision Petition i.e. 03.01.2020 till date i.e. 07.12.2021 shall excluded while computing the period of limitation for the purpose of the filing of the appeal.

With the above observations, the instant petition stands dismissed on withdrawn.

The petitioner is also permitted to take back of the certified copy of the judgment and decree dated 30.09.2019, as the same may be required for the purpose of filing Regular Second Appeal.

JUDGE Page No.# 4/4

Comparing Assistant