Nishi Kanta Rabha vs Smti Hima Bala Rabha
2022 Latest Caselaw 282 Gua

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GAHC010010072015




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

                                   Case No. : RFA/14/2015

            NISHI KANTA RABHA
            S/O LAT ENJA RAM RABHA, R/O VILL. and P.O. BAIDA, RABHAPARA, P.S.
            LAKHIPUR, DIST. GOALPARA, ASSAM.



            VERSUS

            SMTI HIMA BALA RABHA
            W/O LATE PRAJIT KUMAR RABHA, VILL. and P.O. BAIDA, RABHAPARA, P.S.
            LAKHIPUR, DIST. GOALPARA, ASSAM.



Advocate for the Petitioner   : MR.M U MAHMUD

Advocate for the Respondent : C.G.C.




                                      BEFORE
                     HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                          ORDER

Date : 28.01.2022.

Heard Mr. M.U. Mahmud, learned counsel for the appellant. Also heard Mr. P.S. Bhattacharjee, learned Central Government Standing Counsel for the respondent Nos. 5 to 7.

None appears on behalf of the other respondents.

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This is appeal under Section 41 Rule 1 of the Code of Civil Procedure whereby the judgment dated 25.05.2012 passed by the learned Civil Judge, Goyalpara in M.S. case No. 06/2011 has been put to challenge.

The suit was dismissed for two reasons. One reason is that no prayer for condonation of delay was filed and the second reason is that no notice under Section 80(1) of the Code of Civil Procedure was served.

The issue of limitation is a mixed issue of law and fact. Moreover, there is a duty of the court to ask the party to file a petition praying for condonation of delay. The court of law is bound to dispense justice to the litigants. For the fault of a party, case should be decided against him.

So far as the non service of notice under Section 80(1) of the Code of Civil Procedure is concerned, for this fact also, there is a duty on the part of the court to ask the party to abide by that procedure or to seek leave for dispensing with that procedure.

This Court is of the opinion that by delivering the impugned judgment dated 25.05.2012, the court below has failed to dispense justice to the litigants. Such a judgment is not sustainable in law. Therefore, the aforesaid impugned judgment dated 25.05.2012 passed in M.S. case No. 06/2011 is set aside.

The case is remaded to the court below for disposal in accordance with procedure laid by the law. The appellant is directed to file necessary applications under Section 5 of the Limitation Act and for seeking leave to file the suit as mentioned hereinbefore.

After considering those two applications, the court below shall dispose of the case in accordance with law laid by the court.

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It is also directed that since many years have already passed, therefore, the appellant shall be at liberty to file a fresh suit, after complying with the of the statutory requirements, as mentioned hereinbefore.

The appeal stands disposed of accordingly.

JUDGE

Comparing Assistant