Gauhati High Court
Page No.# 1/6 vs On The Death Of Kaser Uddin on 14 September, 2021
Page No.# 1/6
GAHC010271262019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/4011/2019
ON THE DEATH OF AINUDDIN SK., HIS LEGAL HEIRS KOBBAT ALI AND 6
ORS
S/O- LATE AINUDDIN SK, R/O- VILL.- KACHARIHAT DEBATTAR HASDAHA
PART-II, P.O. KACHARIHAT, P.S. DHUBRI, DIST.- DHUBRI, ASSAM, PIN-
783334.
2: MOHAMMAD ALI
S/O- LATE AINUDDIN SK
R/O- VILL.- KACHARIHAT DEBATTAR HASDAHA PART-II
P.O. KACHARIHAT
P.S. DHUBRI
DIST.- DHUBRI
ASSAM
PIN- 783334.
3: AZIRAN BIBI
S/O- LATE AINUDDIN SK
R/O- VILL.- KACHARIHAT DEBATTAR HASDAHA PART-II
P.O. KACHARIHAT
P.S. DHUBRI
DIST.- DHUBRI
ASSAM
PIN- 783334.
4: ON THE DEATH OF MOHARUDDIN
HIS LEGAL HEIR OPIAL SK
S/O- LATE MOHARUDDIN
R/O- VILL.- ROWERKUTI
P.O. DURAHATI
P.S. AND DIST.- DHUBRI
ASSAM
PIN- 783324.
5: NAZIRAN BIBI
Page No.# 2/6
D/O- LATE MOHORUDDIN
W/O- AZAD ALI
R/O- VILL.- ROWERKUTI
P.O. DURAHATI
P.S. AND DIST.- DHUBRI
ASSAM
PIN- 783324.
6: NAZIRA BIBI
D/O- LATE MOHARUDDIN
W/O- NABARUDDIN
R/O- VILL.- ROWERKUTI
P.O. DURAHATI
P.S. AND DIST.- DHUBRI
ASSAM
PIN- 783324.
7: SABDER ALI
S/O- LATE MOIJUDDIN
R/O- VILL.- SALANGDANGA
P.O. GOLAKGANJ
P.S. AND DIST.- DHUBRI
ASSAM
PIN- 783334
ASSA
VERSUS
ON THE DEATH OF KASER UDDIN, HIS LEGAL HEIRS SAHAD ALI AND 12
ORS.
S/O- LATE KASER UDDIN
2:SOBED ALI
S/O- LATE KASER UDDIN
3:BABUR ALI
S/O- LATE KASER UDDIN
4:KESMAT ALI
S/O- LATE KASER UDDIN
5:ON THE DEATH OF SONAUDDIN
HIS LEGAL HEIRS NABAR UDDIN
S/O- LATE SONAUDDIN
6:SIRAJ UDDIN
S/O- LATE SONAUDDIN
Page No.# 3/6
7:NABU SK
S/O- LATE SONAUDDIN
8:KADAM ALI
S/O- LATE SONAUDDIN
9:MOIJUDDIN SK
S/O- LATE SONAUDDIN
10:KOISAR ALI
S/O- LATE SONAUDDIN
ALL ARE RESIDENTS OF VILL.- KUMARGATI
P.O. TISTERPAR
P.S. AND DIST.- DHUBRI
ASSAM
PIN- 783324
ASSAM.
11:BASSU SK
S/O- LATE KASIMUDDIN
12:SUBEDAR ALI
S/O- LATE KASIMUDDIN
13:DELDAR ALI
S/O- LATE KASIMUDDIN
RESPONDENTS NO. 11 TO 13 ARE RESIDENTS OF VILL.- CHAR
KUMARGATI
P.O. TISTERPAR
P.S. AND DIST.- DHUBRI
ASSAM
PIN- 783324
Advocate for the Petitioner : MS. R CHOUDHURY
Advocate for the Respondent : MR. M A SHEIKH
Linked Case :
LEGAL HEIRS OF AINUDDIN SK. KOBBAT ALI AND 6 ORS
Page No.# 4/6
VERSUS
LEGAL HEIRS OF LATE KASER UDDIN
SAHAD ALI AND 12 ORS
------------
Advocate for :
Advocate for : appearing for LEGAL HEIRS OF LATE KASER UDDIN
SAHAD ALI AND 12 ORS
BEFORE
THE HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
ORDER
14.09.2021
Heard Ms. R. Choudhury, the learned counsel for the applicants. Also heard
Mr. M. A. Sheikh, the learned counsel for the opposite parties.
This is an application under Section 5 of the Limitation Act, 1963 filed by the
applicants seeking for condonation of delay of 283 days in filing the connected
Regular Second Appeal against the Judgment and Decree dated 06.10.2018
passed by the learned Civil Judge, Bongaigaon in T.A. No. 61/2015. As per the
submission made by Mr. Sheikh that after passing of the judgment and decree
dated 06.10.2018 by the learned Civil Judge, Bongaigaon in T.A. No. 61/2015,
the applicants more specifically one Kobbat Ali took steps for filing the Second
Appeal and obtained the certified copies within the period of 90 days from the
date of decree. It is submitted that though there are seven numbers of plaintiffs
but it is the applicant No. 1 who is taking steps and as such he approached the
counsel engaged earlier for filing the connected Second Appeal on 02.04.2019.
The learned counsel having gone through the various relevant papers informed
that the case has no merit and returned back the brief. Thereafter, it is admitted
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in this application that the applicant No. 1 lost all hopes and sitting idle at home.
Subsequently as per the advice of one of the co-villagers the applicant No. 1
contacted the present set of counsel on 20.10.2019. Thereafter, steps were
taken in order to file the connected Second Appeal and finally it was filed on
05.11.2019 and while doing so, delay of 285 days occurred.
Mr. Sheikh, the learned counsel for the opposite parties pointed out that
there is an admission on the part of the applicants more specifically applicant
No. 1 that he was sitting idle at his home from 02.04.2019 till 20.10.2019 which
clearly indicates about the waiver of the right to file the Second Appeal by all
the applicants. Under such circumstances, it is the contention of Mr. Sheikh that
as there is a clear proof of waiver of the right of the applicants under such
circumstances, this application is not maintainable and the causes shown for
delay are not within the term of "sufficient cause" as stipulated under Section 5
of the Limitation Act, 1963.
I have given due consideration to the submissions made by the learned
counsel. On a specific query to both the learned counsel, it is submitted that the
present applicants are the plaintiffs in the original suit seeking for declaration of
their right, title and interest against the present opposite parties who filed
counter claim in respect of the suit land along with the declaration and partition.
The dismissal of the suit by the trial court and the counter claim and the
subsequent dismissal of the first appeal goes to show that the opposite parties
who are the defendants were not affected by any of the decrees either of the
trial court or of the first appellate court. Now in order to consider the
condonation of the delay of 285 days, I have considered the doctrine of
prejudice that may be caused to the opposite parties in the event of condoning
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the delay. Keeping in view the nature of the suit and the concurrent findings, I
am of the considered opinion that if the delay is condoned, the opposite parties
would not be affected or prejudiced inasmuch as the act of condonation of delay
would not alter the position what they are enjoying since the date of filing the
suit. However, considering the act of waiver of the applicants in my considered
opinion, it would be proper to compensate the opposite parties due to the
inconvenience caused belatedly to the opposite parties. Accordingly, on the
basis of the discussions made hereinabove, the delay of 285 days is condoned in
filing the connected Regular Second Appeal subject to deposit of Rs. 7000/- as
cost by the applicants in the Registry of this court. On being deposited, the
Registry shall take steps for registering the Second Appeal and list for hearing
U/O XLI Rule 11 CPC. The opposite parties shall or their representative
approach the Registry once the deposit is made for disbursal of the costs
subject to identification by the counsel and to the satisfaction of the Registry.
The applicants shall deposit the costs within 15 days from today in the Registry
of this Court.
JUDGE
Comparing Assistant
