Page No.# 1/5 vs Page No.# 2/5
2022 Latest Caselaw 379 Gua

                                                                    Page No.# 1/5

GAHC010264062019




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

                          Case No. : CRP(IO)/371/2019

         MAYA BIBI AND 4 ORS.
         VILL. BHASANIGAON, P.O. LAKHIGANJ, P.S. BILASIPARA, DIST. DHUBRI,
         ASSAM.

         2: FORIDA BIBI
         VILL. BHASANIGAON
          P.O. LAKHIGANJ
          P.S. BILASIPARA
          DIST. DHUBRI
         ASSAM.

         3: MOFIJUL SHEIKH
         VILL. BHASANIGAON
          P.O. LAKHIGANJ
          P.S. BILASIPARA
          DIST. DHUBRI
         ASSAM.

         4: MONJIL SK
         VILL. BHASANIGAON
          P.O. LAKHIGANJ
          P.S. BILASIPARA
          DIST. DHUBRI
         ASSAM.

         5: MOBARAK SK
         VILL. BHASANIGAON
          P.O. LAKHIGANJ
          P.S. BILASIPARA
          DIST. DHUBRI
         ASSAM

         VERSUS
                                                         Page No.# 2/5

ON DEATH OF MD. KHOLIL SK. HIS LEGAL HEIRS - ZAKIR HUSSAIN AND 3
ORS.
DHUBRI, ASSAM.

1.1:ZAKIR HUSSAIN
VILL. FAKIRANIRJHAR
 PART-II
 PIN-783348
 P.O. BARKANDA
 P.S. BILASIPARA
 DIST. DHUBRI.

1.2:NUR HUSSAIN
VILL. FAKIRANIRJHAR
 PART-II
 PIN-783348
 P.O. BARKANDA
 P.S. BILASIPARA
 DIST. DHUBRI.

1.3:NURJAHAN BIBI
VILL. FAKIRANIRJHAR
 PART-II
 PIN-783348
 P.O. BARKANDA
 P.S. BILASIPARA
 DIST. DHUBRI.

1.4:REJINA BIBI
VILL. FAKIRANIRJHAR
 PART-II
 PIN-783348
 P.O. BARKANDA
 P.S. BILASIPARA
 DIST. DHUBRI.

1.5:NUR ALAM
VILL. FAKIRANIRJHAR
 PART-II
 PIN-783348
 P.O. BARKANDA
 P.S. BILASIPARA
 DIST. DHUBRI.

1.6:TAFIQUL ALOM
VILL. FAKIRANIRJHAR
 PART-II
 PIN-783348
                                               Page No.# 3/5

             P.O. BARKANDA
             P.S. BILASIPARA
             DIST. DHUBRI.

            1.7:TAHIMA BIBI
            VILL. FAKIRANIRJHAR
             PART-II
             PIN-783348
             P.O. BARKANDA
             P.S. BILASIPARA
             DIST. DHUBRI.

            2:DAIBOR SK
             S/O. LT. MAHIZUDDIN SK
            VILL. KUSHAKATI
             PIN-783345
             P.O. RANIGANJ
             P.S. BILASIPAR
             DIST. DHUBRI
            ASSAM.

            3:HAIBOR SK
             S/O. LT. MAHIZUDDIN SK
            VILL. KUSHAKATI
             PIN-783345
             P.O. RANIGANJ
             P.S. BILASIPAR
             DIST. DHUBRI
            ASSAM.

            4:DALIMA BIBI
            W/O. ELAHI BOKS HAJI
            VILL. DALOGAON
             PIN-783345
             P.O. LAKHIGANJ
             P.S. BILASIPARA
             DIST. DHUBRI
            ASSAM

Advocate for the Petitioner   : MR. A IKBAL

Advocate for the Respondent : MR A N AHMED
                                                                                              Page No.# 4/5




                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                                 ORDER

Date : 07-02-2022

Heard Mr. A. Ikbal, learned counsel appearing for the petitioners. Also heard Mr. A.N. Ahmed, learned counsel representing the respondents.

This is an application under Article 227 of the Constitution of India whereby the order dated 18.09.2019 passed by the Munsiff, Bilasipara in Title Suit No. 75/2016 has been challenged.

The respondents filed a suit against 11 (eleven) persons. Thereafter, the defendant no. 5 filed a counter claim. In the meantime, on 1.01.2018, the counter claimant/defendant no. 5 expired. On 28.01.2019, his legal heirs filed an application to substitute them in place of their deceased father and since the statutory period of 90 (ninety) days had already passed by, they also filed an application under Section 5 of the Limitation Act for condonation of delay.

The court below did not allow the prayer.

Mr. Ikbal submits that the legal heirs of the aforesaid counter claimant/defendant no. 5 did not have knowledge about the suit. They came to know about the same after a long time. Moreover, it has been submitted that because of financial hardship they could not file appropriate application for impleading them in place of their deceased father.

In order to buttress his point, Mr. Ikbal has relied upon the decision of Banwari Lal and Ors. V. Balbir Singh, reported in (2016) 1 SCC 607 .

Paragraph 10 of the said judgment is quoted under:

10. Provisions of Order XXII CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272 , a Five Judge Bench of this Court held as under:-

"26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found Page No.# 5/5

separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice..." .

Mr. Ahmed, on the other hand, has submitted that the court below has rightly passed the impugned order.

I have given my anxious consideration to the submissions made by the learned counsels for the parties.

The primary duty of a court of law is to administer justice. Moreover, the provisions of the Code of Civil Procedure are directory till they are specifically mentioned as mandatory. This Court is of the opinion that while dismissing the prayer of the petitioners the court below did not apply judicial mind. No elaborate discussion on the point is necessary. The impugned order dated 18.09.2019 passed by the Munsiff, Bilasipara in Title Suit No. 75/2016 is set aside.

Prayer made by the petitioners is allowed. The court below shall substitute the legal heirs of late Kholil Sk in the counter claim.

With the aforesaid observation, this civil revision petition is disposed of.

JUDGE

Comparing Assistant