Khuteza Begum vs Abdul Jalal
2022 Latest Caselaw 3873 Gua

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GAHC010316712019




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

                                Case No. : I.A.(Civil)/94/2021

            KHUTEZA BEGUM
            W/O- RAJIB ALI @ RAJAB, R/O- AMULAPATTY, DIBRUGARH, P.O. AND P.S.
            DIBRUGARH, PIN- 786001.



            VERSUS

            ABDUL JALAL
            S/O- LATE SAMSUL HAQUE, R/O- TARUN NAGAR, MAKUM TOWN, WARD
            NO. 4, P.O. AND P.S. MAKUM, DIST.- TINSUKIA, ASSAM, PIN- 786001.



Advocate for the Petitioner   : MR G P BHOWMIK

Advocate for the Respondent : MR. B. DUTTA




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                          ORDER

Date : 28.09.2022

Heard Mr. D. Kalita, the learned counsel appearing on behalf of the Applicant and Mr. S. Deka, the learned counsel appearing on behalf of the Respondent.

This is an application under Section 5 of the Limitation Act, 1963 for Page No.# 2/3

condoning the delay of 346 days for preferring the Second Appeal against the judgment and decree dated 06.10.2018 passed by the Court of the Civil Judge, Tinsukia in T.A. No.8/2016 whereby the said appeal was dismissed thereby affirming the judgment and decree of the learned Munsiff No.2, Tinsukia in T.S. No.40/2012.

The reasons assigned in the said application is that the appeal ought to have been filed before this Court within 90 days from the date of the impugned judgment and decree but on account of the medical ailments of the Applicant from 03.10.2018 due to anemia, she could not move from one place to another due to her weakness and the doctor advised her to take rest till full recovery. In the month of February, 2019 the Applicant again became seriously ill due to her suffering from Mennorhagia and the doctor advised her to take rest. In the meantime, the husband of the Applicant also developed facial palsy for which he was also under complete medical treatment. Taking into account that there was no proper explanation in the main application, this Court on the submissions made by the learned counsel for the Applicant had permitted the Applicant to file an additional affidavit. In the additional affidavit, various medical documents have been enclosed to show that the Applicant was under medical treatment on account of anemia and in the meantime the husband of the Applicant was also under medical treatment for facial palsy.

Taking into account that the applicant is a woman, she also had difficulty to come to Guwahati as most of the steps in respect to the suit and the appeal was being under the guidance of her husband, the reasons assigned in the instant application in the opinion of this Court constitutes sufficient cause for not preferring the appeal within the period prescribed. However, this Court is also of the view that on account of the delay certain rights of the Respondent Page No.# 3/3

has also been affected which can be compensated by way of costs.

Accordingly, this Court condones the delay of 346 days in preferring the connected Second Appeal subject to deposit of Rs.5,000/- as cost to the learned counsel appearing on behalf of the Respondent within 7 days from today.

The Registry shall register the connected Second Appeal subject to the acknowledgment of the amount of Rs.5,000/- being produced by the Applicant before the Registry of this Court.

IA stands disposed of.

JUDGE

Comparing Assistant