Gauhati High Court
Manir Ali Barbhuiya vs Wajid Ali Barbhuiya And Ors on 17 February, 2023
Page No.# 1/7
GAHC010218002022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/3510/2022
MANIR ALI BARBHUIYA
S/O LATE MOBARAK ALI BARBHUIYA,
RESIDENT OF VILLAGE TARAPUR PART IV, NEAR ISBT RAMNAGAR, PO
TARAPUR KHELMA, PS SILCHAR, DIST CACHAR.
VERSUS
WAJID ALI BARBHUIYA AND ORS.
S/O LATE MOBARAK ALI BARBHUIYA, VILLAGE TARAPUR IV, PO
TARAPUR (KHELMA) PORGONA, BARAKPUR, PS SILCHAR, DIST CACHAR,
ASSAM
2:ON THE DEATH OF ASHIK UDDIN BARBHUIYA AND MAYARUN NESSA
BARBHUIYA
THEIR LEGAL HEIRS.
2.1:SIRAF UDDIN BARBHUIYA
S/O LATE ASHIK UDIIN BARBHUIYA AND MAYARUN NESSA BARBHUIYA
RESIDENT OF VILLAGE TARAPUR PART IV
NEAR ISBT
PO TARAPUR KHELMA
PS SILCHAR
DIST CACHAR.
2.2:AFTAB UDDIN BARBHUIYA
S/O LATE ASHIK UDIIN BARBHUIYA AND MAYARUN NESSA BARBHUIYA
RESIDENT OF VILLAGE TARAPUR PART IV
NEAR ISBT
PO TARAPUR KHELMA
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PS SILCHAR
DIST CACHAR.
2.3:SULTANA BEGUM
D/O LATE ASHIK UDIIN BARBHUIYA AND MAYARUN NESSA BARBHUIYA
RESIDENT OF VILLAGE TARAPUR PART IV
NEAR ISBT
PO TARAPUR KHELMA
PS SILCHAR
DIST CACHAR.
2.4:RUSTANA BEGUM
D/O LATE ASHIK UDIIN BARBHUIYA AND MAYARUN NESSA BARBHUIYA
RESIDENT OF VILLAGE TARAPUR PART IV
NEAR ISBT
PO TARAPUR KHELMA
PS SILCHAR
DIST CACHAR.
2.5:HASINA BEGUM
D/O LATE ASHIK UDIIN BARBHUIYA AND MAYARUN NESSA BARBHUIYA
RESIDENT OF VILLAGE TARAPUR PART IV
NEAR ISBT
PO TARAPUR KHELMA
PS SILCHAR
DIST CACHAR.
2.6:RASINA BEGUM
D/O LATE ASHIK UDIIN BARBHUIYA AND MAYARUN NESSA BARBHUIYA
RESIDENT OF VILLAGE TARAPUR PART IV
NEAR ISBT
PO TARAPUR KHELMA
PS SILCHAR
DIST CACHAR.
3:ON THE DEATH OF JOYED ALI BARBHUIYA
HIS LEGAL HEIRS
3.1:MUSSTT. ANOWARA BEGUM BARBHUIYA
W/O LATE JOYED ALI BARBHUIYA
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RESIDENT OF VILLAGE RAMNAGAR (SAMJURAI)
PO TARAPUR (KHELMA) PS SILCHAR DIST CACHAR
ASSAM
3.2:MD. SAHIN AHMED BARBHUIYA
S/O LATE JOYED ALI BARBHUIYA
RESIDENT OF VILLAGE RAMNAGAR (SAMJURAI)
PO TARAPUR (KHELMA) PS SILCHAR DIST CACHAR
ASSAM
3.3:MD. SAJHAN AHMED BARBHUIYA
S/O LATE JOYED ALI BARBHUIYA
RESIDENT OF VILLAGE RAMNAGAR (SAMJURAI)
PO TARAPUR (KHELMA) PS SILCHAR DIST CACHAR
ASSAM
3.4:MD. SAMIM AHMED BARBHUIYA
S/O LATE JOYED ALI BARBHUIYA
RESIDENT OF VILLAGE RAMNAGAR (SAMJURAI)
PO TARAPUR (KHELMA) PS SILCHAR DIST CACHAR
ASSAM
3.5:MD. SABIR AHMED BARBHUIYA
S/O LATE JOYED ALI BARBHUIYA
RESIDENT OF VILLAGE RAMNAGAR (SAMJURAI)
PO TARAPUR (KHELMA) PS SILCHAR DIST CACHAR
ASSAM
3.6:MUSSTT. SIRIN AKTAR BARBHUIYA
D/O LATE JOYED ALI BARBHUIYA
RESIDENT OF VILLAGE RAMNAGAR (SAMJURAI)
PO TARAPUR (KHELMA) PS SILCHAR DIST CACHAR
ASSAM
3.7:MUSST. SAMIM AKTAR TALUKDAR
W/O MD. MAJIBUR RAHMAN TALUKDAR
D/O LATE JOYED ALI BARBHUIYA
RESIDENT OF VILLAGE UTTAR KRISHNAPUR (AULIA BAZAR) PO UTTAR
KRISHNAPUR
PORGONA BARAKPAR
L PS SILCHAR
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DIST CACHAR
ASSAM
4:ISMAIL ALI BARBHUIYA
S/O LATE SURMAN ALI BARBHUIYA
RESIDENT OF TARAPUR PART IV
PO TARAPUR (KHELMA) PS SILCHAR
DIST CACHAR
ASSAM
5:MAYARUN NESSA BARBHUIYA
D/O LATE SURMAN ALI BARBHUIYA
C/O WAJID ALI BARBHUIYA
S/O LATE MOBARAK ALI BARBHUIYA
RESIDENT OF VILLAGE TARAPUR PART IV
PO TARAPUR (KHELMA) PORGONA
BARAKPUR
PS SILCHAR
DIST CACHAR
ASSAM
6:ANGURUN NESSA BARBHUIYA
D/O LATE SURMAN ALI BARBHUIYA
C/O WAJID ALI BARBHUIYA
S/O LATE MOBARAK ALI BARBHUIYA
RESIDENT OF VILLAGE TARAPUR PART IV
PO TARAPUR (KHELMA) PORGONA
BARAKPUR
PS SILCHAR
DIST CACHAR
ASSA
Advocate for the Petitioner : MS. R CHOUDHURY
Advocate for the Respondent : MR. I H LASKAR (r-1 to 6)
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Linked Case :
MANIR ALI BARBHUIYA
VERSUS
WAJID ALI BARBHUIYA AND ORS. B
------------
Advocate for : MS. R CHOUDHURY
Advocate for : appearing for WAJID ALI BARBHUIYA AND ORS. B
BEFORE
THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
ORDER
17. 02. 2023
Heard Ms. R Choudhury, learned counsel for the applicant and Mr.
PK Deka, learned counsel for all the respondents.
2. The present application is filed under Section 5 of Limitation Act, 1963
praying for condonation of 150 days delay in filing the connected Regular
Second Appeal against the judgment and decree dated 04.12.2020 passed
in T.A. No. 61/2013 by the learned Civil Judge No. 2, Cachar, Silchar.
3. The delay in approaching this court has been explained at paragraph Nos.
3 and 4 of the present application. The basic reason for such delay
pleaded is that after passing of the judgment and decree dated
04.12.2020, the learned engaged counsel of the applicant though tried to
contact the applicant, but could not reach to him as the contact numbers
in both ends were changed. As a result, the applicant too could not
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contact the concerned Advocate. It is also contended that though certified
copy was received on 17.12.2020, the same was handed over on
23.12.2020 to the learned counsel and same could not be handed over to
the applicant due to lack of communication. Thereafter, only on a chance
acquaintance on 12.07.2021 the applicant could meet his engaged counsel
could know about the fate of the case and thereafter proceeded and filed
this application and in the meantime, there was delay of 150 days.
4. The Opposite Party has filed an objection and contends that the factum
that the contact numbers in both ends were changed is not a believable
story. Further, the meeting of the counsel as a chance acquaintance is also
not believable and the same itself reflects negligence on the part of the
appellant. The OP also contends that the story of the appellant being
fallen ill is also unbelievable as no supportive document has been annexed
with the present case.
5. I have given anxious consideration to the submissions made by the
learned counsel for the parties. The Legislature in its wisdom has provided
certain period for approaching a court and such object of the Legislature is
to bring end to a litigation. At the same time the Legislature has provided
right to prefer appeals. It is by now well settled that when the delay is
caused to defeat justice or to gain something and if the delay is inordinate
or if the person is not prevented by sufficient cause, court will not be
inclined to condone a delay otherwise court will not like to take away a
right to prefer an appeal.
6. In the given facts and settled proposition of law, this court is of the view
that the appellant whose appeal was partly allowed and the part of claim
dismissed, will not gain anything by delaying the matter rather it was the
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urgency of the present applicant to approach the court in due time. This
court is also of the considered opinion that the reasons of delay explained
are sufficient cause which prevented the present applicant in filing the
connected second appeal.
7. Accordingly, the IA is allowed by condonding the delay of 150 days in
preferring the connected second appeal.
8. Registry to register the second appeal and list if for admission hearing
under Order XLI Rule II of the CPC.
9. While listing the case, Registry to reflect the name of Mr. PK Deka as the
counsel for the respondents.
10. The applicant shall furnish a copy of the memo of appeal to the learned
counsel.
JUDGE
Comparing Assistant
