Gauhati High Court
Shankar Shah (Kanu) vs Nijamuddin Sk And 31 Ors on 19 September, 2022
Page No.# 1/8
GAHC010148412022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/175/2022
SHANKAR SHAH (KANU)
S/O LATE SEW NARAYAN SHAH KANU, R/O VILL-BALURCHAR NO. 3,
DHUBRI, P.S.-DHUBRI, ASSAM, PIN-783323
VERSUS
NIJAMUDDIN SK AND 31 ORS.
S/O LATE SALIMULLA, R/O VILL-BALURCHAR NO. 3, DHUBRI, P.O., P.S.
AND DIST-DHUBRI, PIN-783323
2:SIRAJ SK
S/O LATE SALIMULLA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
3:TISU SK
S/O LATE SALIMULLA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
4:SAMIM SK
S/O LATE SALIMULLA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
Page No.# 2/8
5:FIROJ SK
S/O LATE SALIMULLA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
6:NASIM SK
S/O LATE SALIMULLA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
7:RAJESH SK
S/O LATE SALIMULLA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
8:BABY SK
W/O ANAMUL HAQUE
D/O LATE SALIMULLA
R/O DARJEEPATTY
NEAR KABARSTAN
P.O.-TEZPUR
DIST-SONITPUR
ASSAM
PIN-784001
9:LUTFAR BEGUM
W/O LATE MD. RAHIMULLA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
10:JABEDA BEWA
W/O LATE MD. KARIMULLA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
Page No.# 3/8
PIN-783323
11:REYAZUDDIN SK
S/O LATE MD. KARIMULLA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
12:HARUN NESSA
W/O LATE AMIRULLA SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
13:SAYEDA BEGUM
W/O LATE SAMSUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
14:NAWSAD ALI
S/O LATE SAMSUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
15:HAZARAT ALI
S/O LATE SAMSUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
16:SAMSAD ALI
S/O LATE SAMSUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
Page No.# 4/8
PIN-783323
17:AKBAR ALI
S/O LATE SAMSUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
18:MD. ALI
S/O LATE SAMSUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
19:SAYERA BANU
D/O LATE SAMSUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
20:ARJU
D/O LATE SAMSUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
21:SALEKA BIBI
W/O LATE ALAUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
22:AQSLAM SK
S/O LATE ALAUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
Page No.# 5/8
PIN-783323
23:AJAD SK
S/O LATE ALAUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
24:AJAD SK
S/O LATE ALAUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
25:SAMSUD SK
S/O LATE ALAUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
26:SULTAN SK
S/O LATE ALAUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
27:NARGIS @ CHOTA
D/O LATE ALAUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
28:PARBIN
D/O LATE ALAUDDIN SK
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
Page No.# 6/8
PIN-783323
29:ANOWAR HOSSEN
S/O LATE ALIMON NESSA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
30:ROJI KHATUN
D/O LATE ALIMON NESSA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
31:ASHA KHATUN
D/O LATE ALIMON NESSA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O.
P.S. AND DIST-DHUBRI
PIN-783323
32:AKHTAR HUSSAIN
S/O LATE MOJRON NESSA
R/O VILL-BALURCHAR NO. 3
DHUBRI
P.O. P.S. AND DIST-DHUBRI
PIN-78332
Advocate for the Petitioner : MR G P BHOWMIK
Advocate for the Respondent : MR. T J MAHANTA
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
19.09.2022
Heard Mr. D. Kalita, the learned counsel for the petitioner and Mr. T. J.
Mahanta, the learned senior counsel assisted by Ms. P. Bhattacharjee, the
Page No.# 7/8
learned counsel for the respondents.
This is an application under Article 227 of the Constitution of India
challenging the order dated 25.05.2022 passed by the Additional District
Judge, Dhubri in T.A. No.13/2019 whereby the applications filed by the
petitioner for adducing additional evidence were rejected prior to hearing of
the appeal fixing 07.06.2022 for appeal hearing.
The learned counsel for the petitioner has drawn the attention of this
Court to the order dated 29.02.2020 whereby the Appellate Court, upon the
application filed under Order XLI Rule 27 read with Section 151 of the CPC,
had observed that the said applications shall be taken up for disposal with
the final hearing of the appeal. The learned counsel for the petitioner
submitted that in spite of the said order being passed, the court below had
decided the said applications which was not in conformity with the earlier
order passed by the said court as well as the judgment of the Supreme
Court in the case of Union of India vs. Ibrahim Uddin & Another , reported in
(2012) 8 SCC 148.
On the other hand, Mr. T. J. Mahanta, the learned senior counsel for
the respondents submitted that filing applications after applications by the
petitioner before the First Appellate Court is nothing but a ploy employed to
delay the execution of the decree which the respondents herein had
obtained as far back in the year 1993 which has been confirmed by this
Court. Mr. T. J. Mahanta, the learned senior counsel further submitted that
it being a well settled principle of law that an application seeking additional
evidence at the stage of appeal has to be taken into consideration by the
Appellate Court only in the stage of appeal hearing and that the order
dated 25.05.2022 may be interfered with thereby directing the First
Page No.# 8/8
Appellant Court to decide the said appeal as well as all the applications filed
under Order XLI Rule 27 of the CPC for adducing additional evidence.
Upon hearing the learned counsel for the parties and taking into
account the well settled principle of law as declared by the Supreme Court
in the case of Ibrahim Uddin (supra), and more particularly in paragraph
Nos.49 to 52, this Court interferes with the order dated 25.05.2022 and
further directs the First Appellate Court to take into consideration the
petition bearing No.279 dated 18.01.2022 as well as petition Nos. 306 and
307 dated 04.02.2022 filed by the appellant as well as in other applications
filed under Order XLI Rule 27 of the CPC for adducing additional evidence
at the time of taking up the Appeal being Title Appeal No.13/2019 for final
disposal.
Taking into consideration the facts and circumstances of the case, the
order dated 06.08.2022 passed by this Court stands vacated and parties are
directed to appear before the First Appellate Court on 26.10.2022.
The First Appellate Court shall decide the said appeal taking into
account the observations made herein above and without being influenced
by the order dated 25.05.2022 passed in Title Appeal No.13/2019.
With the above observation, the instant petition stands disposed of.
JUDGE
Comparing Assistant
