Manjur Ali @ Manjur Alam vs Iftikar Ahmed And Anr
2021 Latest Caselaw 2646 Gua

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GAHC010287512018




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

                                   Case No. : CRP/35/2019

            MANJUR ALI @ MANJUR ALAM
            S/O LT. NUR ALOM, R/O DAMRA, P.O.DAMRA, P.S. DUDHNOI, DIST.-
            GOALPARA, ASSAM



            VERSUS

            IFTIKAR AHMED AND ANR.
            S/O LT. KHAIRUDDIN AHMED, R/O SWARAJ ROAD, GOALPARA TOWN, P.O,
            P.S. AND DIST. GOALPARA, ASSAM,PIN-783129

            2:MAMUDA BEGUM
            W/O LT. ABDUL BAREK
             R/O KUMARPATTY ROAD (PANCHALI)
             P.O
             P.S. AND DIST. DIBRUGARH
            ASSAM
             PIN-78600

Advocate for the Petitioner   : MR. B D DEKA

Advocate for the Respondent : MR A D CHOUDHURY (R1)




             Linked Case : CRP/190/2018

            MANJUR ALI @ MANJUR ALAM AND 6 ORS.
            HEIRS OF LATE NUR ALOM AND R/O DAMRA
             P.O. DAMRA
            P.S. DUDHNOI
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DIST. GOALPARA
ASSAM

2: MD. FARUK AHMED
HEIRS OF LATE NUR ALOM AND R/O DAMRA
 P.O. DAMRA
P.S. DUDHNOI
 DIST. GOALPARA
ASSAM

 3: MD. ASHFAQUE AHMED
HEIRS OF LATE NUR ALOM AND R/O DAMRA
 P.O. DAMRA
P.S. DUDHNOI
 DIST. GOALPARA
ASSAM

 4: ARJU ALAM
HEIRS OF LATE NUR ALOM AND R/O DAMRA
 P.O. DAMRA
P.S. DUDHNOI
 DIST. GOALPARA
ASSAM

 5: ESKE ALAM
HEIRS OF LATE NUR ALOM AND R/O DAMRA
 P.O. DAMRA
P.S. DUDHNOI
 DIST. GOALPARA
ASSAM

 6: RABIA KHATUN
HEIRS OF LATE NUR ALOM AND R/O DAMRA
 P.O. DAMRA
P.S. DUDHNOI
 DIST. GOALPARA
ASSAM

 7: NAKEMA SULTANA
HEIRS OF LATE NUR ALOM AND R/O DAMRA
 P.O. DAMRA
P.S. DUDHNOI
 DIST. GOALPARA
ASSAM
 VERSUS

IFTIKAR AHMED AND ANR.
S/O LATE KHAIRUDDIN AHMED
                                                                                 Page No.# 3/5

           R/O SWARAJ ROAD

           GOALPARA TOWN

            P.O.
            P.S. AND DIST. GOALPARA
            ASSAM

           2:MUSSTT. MAMUDA BEGUM
           W/O LATE ABDUL BAREK
           R/O KUMARPATTY ROAD
            (PANCHALI)
           P.O.
            P.S. AND DIST. DIBRUGARH
           ASSAM
            ------------

Advocate for : MR. B D DEKA Advocate for : MR H R A CHOUDHURY appearing for IFTIKAR AHMED AND ANR.

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH

01.11.2021

Heard the learned counsel for the petitioner Mr. B.D. Deka and Ms. R. Choudhury,

learned counsel appearing for the respondents.

The instant revision application is filed challenging the order dated 17.09.2018 passed

in Misc. (J) Case No. 47/2015 in connection with T.A. No. 14/2016 whereby, the application

for section 5 of the Limitation Act, 1963 was rejected and consequently, the appeal filed

against the judgment and decree dated 19.09.2014 was confirmed in appeal.

I have perused the order dated 17.09.2018, the application under Section 47 of the

Code of Civil Procedure registered as Misc. Case No. 47/2015 as well as the application

seeking condonation of delay registered as Misc. (J) Case No. 48/2016 in Title Appeal No. Page No.# 4/5

14/2016. A perusal of the application seeking condonation of delay as well as the application

filed under Section 47 of the Code and a perusal thereof it does not inspire this Court that the

petitioner was diligent enough in preferring the appeal inasmuch as the petitioner while

applying for condonation of delay did not mention as to when the petitioner had come to

learn about the judgment and decree passed in the counter claim dated 19.09.2014 in Title

Suit No. 82/2012. In that view of the matter, I am of the opinion that the order passed by the

learned Court below dated 17.09.2018 not called for any interference.

It has been submitted on behalf of the counsel for the petitioner that the dismissal of

an application for condonation would result in dismissal of the appeal and it would be deemed

as confirming the decision of the Trial Court and as such the instant revision application under

Section 115 of the Code of Civil Procedure is maintainable as the judgment and decree dated

19.09.2014 passed in Title Suit No. 82/2012 has merged with the dismissal of the appeal on

17.09.2018. In this regard, he placed the reference to the judgment of the Supreme Court in

the case of Shyam Sunder Sarma Vs. Pannal Jaiswal & Ors. reported in (2005) 1 SCC 436 to

fortify his submissions.

I also heard the Ms. R. Choudhury, the learned counsel for the respondents. On the

question of admission of the revision application.

After perusal of the judgment passed by the Supreme Court in the Case of Shyam

Sundar Sarma (supra), I am of the opinion that the instant revision application is required to

be admitted specifically on the question of error of jurisdiction in respect to the following

issues.

(i) Whether the Trial Court was justified in deciding the counter claim in Page No.# 5/5

an inter-pleader suit filed under Order XXXV of the Code of Civil Procedure,

1908?

(ii) Whether the counter claim was maintainable under Assam Urban

Areas Rent Control Act, 1972, in view of Section 2 of the said Act which

specifies that the said Act only applies to urban areas?

List this matter on 14.12.2021 for hearing.

Interim order passed earlier shall be continue till the disposal of the instant

proceedings.

JUDGE

Comparing Assistant