Rohit Konwar vs Bhola Saikia And 2 Ors
2024 Latest Caselaw 5631 Gua

Gauhati High Court

Rohit Konwar vs Bhola Saikia And 2 Ors on 7 August, 2024

                                                                     Page No.# 1/3

GAHC010083562024




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

                                  Case No. : RSA/127/2024

            ROHIT KONWAR
            S/O LATE SINDHU RAM KONWAR,
            R/O CHAKALI PATHAR GAON, MOUZA- BORPATHAR, DIST.- GOLAGHAT,
            ASSAM.

            VERSUS

            BHOLA SAIKIA AND 2 ORS.
            S/O LATE MOHENDRA SAIKIA,
            R/O BORPATHAR TOWN, MOUZA- BORPATHAR, DIST.- GOLAGHAT,
            ASSAM.

            2:BADAN SAIKIA
             S/O LATE MOHENDRA SAIKIA

            R/O BORPATHAR TOWN
            MOUZA- BORPATHAR
            DIST.- GOLAGHAT
            ASSAM.

            3:RENU SAIKIA
            W/O LATE MOHENDRA SAIKIA

            R/O BORPATHAR TOWN
            MOUZA- BORPATHAR
            DIST.- GOLAGHAT
            ASSAM

Advocate for the Petitioner   : SADHAN KALITA, GUNJAN DAS,MR P DAS

Advocate for the Respondent : ,
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                                 BEFORE
                    HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                       ORDER

07.08.2024

Heard Mr. P. Das, learned counsel for the appellant.

2. This appeal, under Section 100 read with Order XLII of the C.P.C., is directed against the Judgment and Decree dated 24.01.2024, passed by the learned Civil Judge (Senior Division), Golaghat, in Title Appeal No. 09/2022.

3. It is to be noted here that vide Judgment and Decree dated 24.01.2024, the learned Civil Judge (Senior Division), Golaghat has set aside the Judgment and Decree passed by the learned Munsiff (M), Dhansiri, Sarupathar, in Title Suit No. 07/2012, dated 28.07.2022, by way of modification.

4. Perused the memo of appeal as well as the documents placed on the record and also perused the impugned Judgment and Decree dated 24.01.2024, passed by the learned Civil Judge (Senior Division), Golaghat and also perused the Judgment and Decree dated 28.07.2022, passed by the learned Munsiff (M), Dhansiri, Sarupathar, in Title Suit No. 07/2012.

5. Having heard the submissions of learned counsel for both the parties, this second appeal is admitted on the following substantial question of law :-

(i) Whether the defendant/counter claimant contesting a suit preferred under Section 6 of the Specific Relief Act, 1963 (As Amended) can maintain a First Appeal under Order 41 Rule 1 read with Section 96 of the C.P.C. challenging the Judgment and Decree that dismissed the counter claim on merit after concluding the trial ignoring the statutory bar to appeal as embodied in the Section 6(3) of the Specific Relief Page No.# 3/3

Act?

(ii) Whether the counter claimant has a statutory right to file a regular appeal under Order 41 Rule 1 read with Section 96 of the C.P.C. with a set of factual grounds in view of statutory bar imposed by Section 96(4) of C.P.C. while admittedly the counter claim value was of Rs.

7,000/- and the suit/counter claim is cognizable by court of small cause?

6. Let notice be issued to the respondents, within a week from today, returnable in 4 weeks, by registered post with A/D and also by usual process.

7. The Registry shall call for the record from the learned Civil Judge (Senior Division), Golaghat.

8. List the matter after 4 [four] weeks.

JUDGE Comparing Assistant